2007 PLP 845 (CLD)

MAULVI ANWARUL HAQ, J.

Suit filed by the respondent-Bank against respondents Nos.2 and 3 was decreed by the learned Judge Banking Court-III, Lahore on 30-6-1997, in the sum of Rs.15,21,027 with mark-up from the date of institution till realization. It was specifically directed that the decretal amount will be recovered by sale of House/Bungalow No.677 Block-W, Phase III, LCCH Society, Lahore Cantt. and other properties mentioned in the plaint.

2. The decree was put into execution. On 27-9-2003, Property No.677 Block W, Phase III, LCCHS, Lahore Cantt. was attached. On 23-2-2004 Mst. Faiz Asghar deceased appellant filed objection petition against the attachment of her Property No.36-Civil Lines Scheme, Rawalpindi, which was attached by the Banking Court on 17-2-2004. According to her she is not liable to pay the decretal amount and was not a party to the suit or to the loan agreements and that the property could not have been attached in execution of the said decree. All present state that these objections are still pending and have not been decided.

3. Present appeal has been filed to question the validity of order dated 27-9-2004, whereby the learned Executing Court has ordered the sale of the said property (36 Civil Lines Rawalpindi).

4. Learned counsel for the appellant contends that in view of the specific direction contained. in the said judgment and decree as also the tenor of the judgment, in the first instance the mortgaged properties as detailed in the decree to be read with the plaint are to be sold. However, instead of selling the said properties the learned Executing Court has first ordered sale of the aforesaid property of his client. Learned counsel for decree-holder bank has not seriously contested this appeal. According to him the process of sale of mortgage property has commenced and the bank will proceed accordingly. Mr. Shahid Ikram Siddiqui, Advocate, who is representing respondent No.3 has opposed this appeal with the contention that the property located at Rawalpindi belonged to the father of respondent No.2 and on his death devolved upon his legal representatives, including respondent No.2 and that the share of said respondent No.2, who is judgment-debtor can be validly attached and sold in execution of the decree passed against him. He, however, fairly conceded that it was duty of the learned Banking Court to have decided the said objections first. Respondent No.2 has been served through publication in the newspaper. The case has been called but no one has turned up on his behalf, accordingly he is proceeded against ex parte.

5. We have examined the available record in the light of the submissions made by the learned counsel for the parties. There is no manner of doubt in our mind that the decree has to be executed as directed in the decree itself, i.e. the properties mentioned in the judgment to be read with the plaint were to be sold and it was thereafter if some deficiency was found then the other assets of the judgment-debtors were to be attached and sold. As is being informed by the learned counsel for the decree-holder bank the said process has already started we, therefore, allow this appeal, set aside the impugned order directing sale of the property located at Rawalpindi. The learned Executing Court shall carry on the process as directed in the decree and if some deficiency is found shall take up the objections filed by the deceased lady and decide the same in accordance with law. H.B.T./F-14/L????????????????????????????????????????????????????????????????????????????????????? Appeal allowed.