2005 PLP 1405 (CLD)

MIAN HAMID FAROOQ, J.

Appellant/decree-holder, through the filing of the present appeal, has called in question order dated 28-3-2002, whereby the learned Banking Court accepted respondents Nos.2 to 34 objection petition and consequently dismissed appellant's execution petition.

2. Precisely stated the facts of the case are that appellant's suit for recovery of Rs.1,00,815, against Mst. Begum Bibi, was decreed through a preliminary decree dated 13-5-1996, which was made final on 21-11-1997, by the then Judge Banking Court. Pursuant thereto the appellant filed the execution petition, wherein respondents Nos.2 to 34, claiming to be the owners of the attached property, filed the objection petition, which was resisted by the appellant-Bank. Following issues were framed: Issues:

(1) Whether the property mortgaged with decree-holder by judgment-debtor Mst. Begum Bibi was later on transferred to the objectors and she was no more owner thereof? OP. (2) Relief. The learned Banking Court recorded the evidence of the parties and ultimately accepted the objection petition and consequently dismissed execution petition through a composite impugned order dated 28-3-2002, hence the present appeal.

3. Despite publication in the newspaper, as none has entered appearance to represent respondent No.1, therefore, this Court, vide separate order of even date, has proceeded ex parte against respondent No.1.

4. Learned counsel for the appellant has contended that the findings of the learned Banking Court are not based on evidence on record and the impugned order suffers from misreading and non-reading of evidence. He has further submitted that in case the objection petition was to be accepted, the learned Banking Court had no lawful authority to dismiss the execution petition. Conversely, the learned counsel for the respondents Nos.2 to 34, has submitted that Patwari appeared in the witness-box and stated that the original allotment order was cancelled and afresh allotment order was made by the Department in favour of the respondents Nos.2 to

34. He has further submitted that the impugned order is well-reasoned and the same does not call for any interference. He has added that he has no objection for the revival of the execution proceedings, so long as it does not affect the property in-question.

5. In view of the arguments of the learned counsel for the parties, we have examined the available record, perused the impugned order and find that the learned Banking Court has rightly adverted to every aspect of the case, appreciated the evidence on record in its true perspective and rendered a reasoned order, which is not open to exception. We have also examined the evidence on record in juxtaposition with the findings of the learned Banking Court and find that the same are not only in accordance with the record of the case but also in consonance with the law on the subject. The statement of Patwari, who appeared as P.W. 1, really clinches the matter, who stated that the questioned land was cancelled from the name of Mst. Begum Bibi land the same was allotted to Nawab All etc. The statement of Patwari could not be discredited by the appellant, though he was cross-examined. The appellant-Bank could not produce sufficient evidence in order to rebut the statement of Patwari. The findings of the learned Banking Court, in this regard, are not open to exception and, thus, the same are maintained.

6. We do hereby agree with the next contention of the learned counsel for the appellant that after the acceptance of the objection petition, in any case the execution petition could not be dismissed, and the same was to be executed through other modes of execution of decree, as provided under the law. To our mind, after the acceptance of the objection petition, the learned Executing Court should have allowed the execution petition to be proceeded with in accordance with law and allowed fair chance to the appellant-Bank to get the decree executed. In view whereof, we are inclined to modify the impugned order, so as to allow the decree-holder to proceed with the execution petition.

7. Upshot of the above discussion is that the present appeal is partly allowed and the impugned order, qua dismissal of execution petition, is set aside, while the remaining part of order is maintained with no order as to costs. Resultantly, appellant's execution petition shall be deemed to be pending before the learned Banking Court, which shall execute the same, of course, in accordance with law. S.A.K./A-471/L Appeal partly accepted.