1989 PLP 1302 (MLD)

AJMAL MIAN, J.‑‑This first appeal is directed against the judgment and decree, dated 4‑2‑1988 by the learned Presiding Officer, Special Court (Banking) for Sind at Karachi in Suit No.288 of 1983, whereby the appellant's application under section 12 read with Order 9 Rule 13 and Order 37 presented on 3‑5‑1988 before the Special Court for setting aside ex parte decree, dated 12‑2‑1988 on a mortgage suit was declined and the ex parte judgment and decree were maintained. The appellant was a guarantor of the loan amount. The appellant being aggrieved by the above order has filed the above appeal against the above order with the prayer that the Special Court be directed to allow the appellant's application and to set aside the above judgment/decree which was for the recovery of Rs.8,74,395.59 on mortgage under Order 34, C.P.C.

2. The present appeal has been riled under section 12 of the Banking Companies (Recovery of Loans) Ordinance, 1979 (hereinafter referred to as the Ordinance). Alongwith the above appeal the appellant had filed, inter alia, Civil Miscellaneous Application No.455 of 1988 under section 12(5) of the Ordinance praying therein that the Court may dispense with the condition of depositing the amount equivalent to the judgment‑debt in Court and permit to furnish security equal in value to such amount. It has been further prayed in the application that the value of the property shown by respondent No.1 to have been mortgaged with them is much more than the amount of claim in the suit. The notice of this application was issued to the other side before admitting the above appeal for regular hearing as subsection (5) of section 12 of the Ordinance provides that "no appeal shall be admitted for hearing unless the appellant deposits in cash with the High Court all amount equivalent to the judgment‑debt or at the discretion of the High Court furnishes security equal in value to such amount. The Respondent No.1/Decree Holder Bank filed Valuation Certificate today in the Court in respect of the mortgaged property which assesses the value of the mortgaged property, namely, plot of land measuring 1112 square yards situated in Block No.27 Township Area, Karachi at Rs.200 per square yard valuing Rs.2,22,

400. Since the decretal amount is Rs.8,74,395.59 plus interest etc., we asked Mr. Shahanshah Hussain, learned counsel for the appellant to file a Valuation Certificate of the mortgaged property contrary to what has been assessed in the certificate produced by Respondent No.1. However he has submitted that his client is not in a position to file any Valuation Certificate. His submission was that since the Respondent No.1 accepted the mortgaged property from Respondent No.2 against the loan amount, the same should be accepted. His further submission was that the above provision requiring deposit of the decretal amount or furnishing of security equivalent to the judgment‑debt at the discretion of the Court is contrary to Shariah and Sunnah.

3. As regards the first submission of Mr. Shahanshah Hussain that since Respondent No.1 accepted the mortgaged property from Respondent No .2 against the loan, the same should be accepted, it may be observed that the loan amount was much less than the decretal amount. In our view, subsection (5) of section 12 of the Ordinance envisages either the deposit of the decretal amount, or at the discretion of the Court furnishing of security equivalent to the judgment?-debt. The Court while exercising the discretion to accept a security equivalent to the judgment‑debt is bound to apply its mind to the question, whether the appellant is willing to offer a security equivalent to the judgment‑debt. In the instant case the, appellant has not brought any material on record to indicate that the value of the mortgaged property was more than the decretal amount. Even if we were to accept the mortgaged property, which was not mortgaged by the appellant, we are bound to apply our mind to the question whether the value of the mortgaged property is sufficient to cover the judgment‑debt. Since the appellant has failed to bring any material on record on the above aspect and in spite of our willingness to grant time to get a. Valuation Certificate, we have no option but to dismiss the above appeal as we cannot admit the same without having either the decretal amount or a security equivalent to the judgment‑debt.

4. Adverting to the second submission of Mr. Shahanshah Hussain that the provision requiring deposit of the decretal amount or furnishing of security equivalent to the judgment‑debt at the discretion of the Court is contrary to Shariah and Sunnah, it may be stated that since the appeal has been filed under section 12 of the Ordinance, in our view it is not open to the appellant to urge in this appeal that the above section is violative of Shitriah and Sunnah. The, appeal is therefore dismissed in limine. These are the reasons in pursuance of a short order of even date. H.B.T./M‑667/K. ??????????????????????????????????????????????????????????????????????????????? Appeal dismissed.