2005 PLP 1003 (CLD)

Khawaja Saeed uz Zafar for Respondents. Date of hearing: 23rd June, 2004. MIAN SAQIB NISAR, J.‑‑‑The respondent was the employee of Habib Bank Limited and had obtained some house building loan from the said bank. He on retirement from Habib Bank Limited was employed by the appellant‑Bank, and according to the case of the appellant, the liability of the loan, outstanding against the respondent with Habib Bank Limited was taken over by the appellant, with the result that Habib Bank Limited was paid off, and the respondent was obliged to repay the said amount, through certainly monthly instalments; to secure the loan the respondent also executed certain documents. However, subsequently, respondent failed to discharge his liability, thus the appellant‑Bank brought a suit for recovery against him, which was decreed in its favour in the following terms:‑‑ "The plaintiff is granted a decree for the recovery of Rs.7,37,784.66, with costs against the defendant with the direction that the plaintiff would be entitled to the benefit of section 15 of the Act XV of 1997. If the decretal amount is not paid within the stipulation time then it would be recovered by the sale of the mortgaged property of the defendant and if still any amount remains unpaid the same would be recovered from the other properties as well as assets of the defendant and also from his person as permissible in law." Thereafter, the respondent had paid the amount of Rs.7,37,784.66 and through miscellaneous application, applied to the Executing Court, for the return of his documents, and the release of his security. The learned Executing Court through the order dated 4‑8‑2001 held as under:‑‑ "The order as to grant of benefit under section 15 ibid appears to have been passed by my learned predecessor in routine. The decree‑holder cannot take benefit section 15 of the Act." This order was not challenged by the appellant. However, now through the order dated 23‑11‑2001, the learned Banking Court by relying upon the aforesaid order, has directed "After the payment of the principal amount and the costs nothing remains to be recoverable from the judgment‑debtor. The decree‑holder is, therefore, directed to return the total security documents to the judgment‑debtor within three weeks from today".

2. Learned counsel for the appellant contends that the judgment and decree dated 6‑10‑1998, under which the benefit of section 15 was awarded to the appellant, could not be reversed or nullified by the Executing Court, as according to the settled principle of law, the Executing Court cannot go behind the decree. Therefore, until and unless the respondent had paid the costs of funds according to the decree, the direction for the release of security is illegal and unlawful.

3. Confronted with the above, learned counsel for the respondent argued that the appellant did not challenge the order dated 4‑8‑2001, which has attained the finality and now in the garb of the impugned order, the earlier order cannot be impugned. It is further submitted that benefit of section 15 could not be given to the appellant, in the decree because such provision was absolutely inapplicable, therefore, the execution of the decree passed in breach of the law, could always be refused by the Executing Court. It is submitted that as the respondent had paid the entire decretal amount, therefore, the bank was under obligation to return the documents/security and the learned Court has rightly passed the order.

4. We have heard learned counsel for the parties. The operative part of the decree reproduced above, clearly shows that the appellant was given the benefit of section 15; notwithstanding if there is some error or illegality in the judgment and decree, suffice it to say that the said error etc. cannot be termed, so as to render the judgment and decree nullity or void or in‑executable in the eye of law. This may be an illegality, which we find otherwise, but when the respondent did not challenge the decree in appeal, it had attained the finality, resultantly, learned Executing Court could not go behind the decree and to nullify the same. Reliance of the learned counsel for the respondent on the case reported as Fakir Abdullah and others v. Government of Sindh through Secretary to Government of Sindh, Revenue Department and others PLD 2001 SC 131 has no application to the facts and circumstances to the present case and is distinguishable: Anyhow, there is catena of case‑law, that the execution of the decree can only be refused by the Executing Court, if it is void or, nullity, in‑executable or passed without jurisdiction; this is not the position in the present case.

5. As regards the arguments of the learned counsel for the respondent that the appeal was not filed by the appellant, against the order dated 4‑8‑2001, therefore, in the present appeal, such order cannot be challenged, suffice it to say that no appeal was permissible under special law, against the earlier order. Obviously, at the time, when the application under section 151 in the execution proceedings, has been finally disposed off through the impugned order, the appellant competently has brought under challenge the earlier order, affecting his rights. Therefore, we overrule the objection of learned counsel for the respondent.

6. As far as the argument of learned counsel that the provisions of section 15 were not attracted, suffice it to say that this is not the job of the Executing Court to determine the above, rather if the application of section 15 was wrongly made in the decree, the respondent at the appropriate point of time, should have challenged the said decree. In the light of above, by allowing this appeal, the impugned order is set aside with the result that the learned Court below shall determine the liability of the respondent, in terms of the judgment and decree dated 6‑10‑1998 under section 15 and on the payment of the amount, so determined, obviously the respondent shall be entitled to receive the return of his security documents. S.A‑K./S‑185/L Appeal accepted.