2003 PLP 1126 (CLD)

Mian Mansur Ali for Respondent No.

1. Muhammad Usman Subhani for Respondent No.4. The brief facts out of which the present appeal arises are that respondent No-2 secured a loan from respondent No.1. Property of respondent No.2 was pledged/mortgaged with respondent No.

1. Respondent No. 1 sanctioned the loan in favour of respondent No.2 after securing guarantee from respondents Nos.3, 4, 5 and father of the present appellants. Respondent No.2 failed to discharge his liabilities in terms of the agreement which was executed between respondent No.2 and respondent No.1. Respondent No.1 being aggrieved filed a suit for recovery against respondents Nos.2 to 5 and father of the appellants before the Banking Court No. II, Faisalabad. The suit was decreed vide judgment and decree dated 10-5-2001 jointly and severally with costs. Respondent No.2 being aggrieved filed an Appeal No.482 of 2001 before this Court against the judgment and decree dated 10-5-2001 which was dismissed by the Division Bench vide judgment and decree dated 10-6-2002. Respondent No.1 filed an execution petition before respondent No.6 against the appellants and respondents Nos.2 to

5. Appellant No.1 was arrested under the direction of the Banking Court No.II, Faisalabad. The appellant had filed the application against the warrant of arrest and also qua the action on the basis of the warrant of arrest that appellant No.1 was sent to civil prison on 18-3-2003. Appellant No.1 filed an application before the Banking Court No. II, for release. The Banking Court No. II, Faisalabad dismissed the application vide order dated 20-3-2003.

2. The learned counsel of the appellant submits that appellant No.1 did not inherit any property from his father, therefore, appellant No.1 is not responsible to discharge the decree secured by respondent No.1 against his father and other judgment-debtors. He further submits that this fact was not considered by the learned Banking Court in its true perspective. He further submits that the learned Banking Court passed the order in violation of the mandatory provisions of law.

3. The learned counsel of respondent No.1 submits that the impugned order is valid as the decree was passed jointly and severally against the father of the appellants and respondents Nos.2 to

5. He further submits that the learned Banking Court passed the impugned order after completing all the legal formalities. He further submits that the appellant No.1 was provided opportunity to discharge the liabilities by the Banking Court in accordance with law but appellant No.1 failed to discharge the liabilities incurred on the basis of the judgment and decree secured by respondent No.1. He further submits that respondent No.2 had filed R.F.A. No.482 of 2001 alongwith the legal heirs of appellants before this Court, which was dismissed by the Division Bench, therefore, impugned order of the Banking Court is in accordance with law. He further urges that the learned, counsel of the appellant failed to point out any infirmity or illegality in the impugned order of the Banking Court. He further urges that no final order has been passed against appellants Nos.2 to 4, therefore, appeal to their extent is not maintainable.

4. We have considered the contentions of the learned counsel of the parties and perused the record.

5. It is admitted fact that appellant No.1 has not given any surety or guarantee at the time of sanctioning of loan by respondent No.1 in favour of respondent No.2. It is admitted position that appellant No.1's father had given guarantee to respondent No.1 at the time of sanctioning the loan by respondent No.1 in favour of respondent No.2. The decree was also passed against respondents Nos.2 to and father of appellant No.1. The learned counsel of respondent No. 1 is very fair, he submits that respondent No.1 failed to point out any property which was inherited by appellant No.1 of his father after his death. This aspect of the case was not considered by the learned Banking Court. Appellant No.1 is only responsible to discharge the decree secured by respondent No.1 against respondents Nos.2 to 5 and father of appellant No.1 in case respondent No.1 had brought on record any property inherited by appellant No. 1 from the property of his father.

6. In view of what has been discussed above, the appeal is accepted and the impugned order is set aside to the extent of appellant No.1 subject to the condition that respondent No.1 is well within, his right to file fresh execution petition in case respondent No.1 shall come to know that appellant No.1 has inherited some property of his father. The appeal of the remaining appellants is not maintainable as no final order has yet been passed against them. M.B.A./M-1898/L Order accordingly.