2002 PLP 821 (CLD)

JAWWAD S. KHAWAJA, J.‑‑‑This. appeal impugns the order, dated 28‑3‑2001 passed by a learned Single Bench of this Court in Execution Application No.61‑B of 1999 so far as the said impugned order relates to C.M. No.449‑B of 1999. The said application was moved by the therein that carpets which had been pledged by the appellants to secure facilities availed by Rizco Carpets had been destroyed and rendered worthless due to the failure of the pledgee decree‑holder Bank to take proper care of the same. It was, therefore, prayed that the execution petition should be dismissed, as the appellants stood discharged of liability on account of the failure of the Bank to take proper care of the pledged carpets.

2. From the impugned order, dated 28‑3‑2001 it appears that this application was dismissed because the claim made by the appellants in respect of the pledged goods was yet to be determined. Learned counsel for the Bank points out that the matter in contention between the appellants and the Bank relates to the legal incidence and responsibility for wastage of the pledged carpets. This is a matter, which is yet to be determined by the learned Executing Court.

3. The appellants are aggrieved of the observation made in para. 8 of the impugned order, the relevant part of which reads as under:‑‑ "The claim that the goods lost were worth more than the amount of decree also cannot be accepted on its face value. Therefore, the ratio settled in the aforesaid judgment of this Court in Re: A.M. Burq and another v. Central Exchange Bank Ltd. and others (supra) cannot be made applicable to the execution proceedings. There can hardly be two opinions about the other proposition that this Court could take notice of happenings after the date of decree and that the executability can be gone into by an Executing Court. However, the learned counsel for the petitioner/judgment‑debtor has not been able to support the contention either by a provision of law or by an authoritative pronouncement that some loss to the goods hypothecated had the effect of frustrating a judgment and decree of a Court of competent jurisdiction, particularly when sufficient securities in the form of immovable properties were available. Also I am not in agreement with the learned counsel for the judgment‑debtors that the aforesaid provisions of Contract Act expressly or impliedly in the given situation create any bar to execution of the decree‑"

4. It is on the basis of the aforesaid observation that C.M. No.449‑B of 2000 moved by the appellants was rejected.

5. The dispute between the appellants/judgment- debtors and the respondent‑Bank relates to the value of the security and requires a determination as to the party which was responsible for diminution in the value of the pledged stocks which constituted security for the finance provided to the appellants/judgment‑debtors by the respondent‑Bank. As such, this contention between the parties has to be determined by learned Executing Court. If there are factual matters to be decided for the purpose of such determination, under section 47, C.P.C., the factual controversy also has to be decided in the execution proceedings. The learned counsel for the appellants has also referred to case‑law in support of the above assertion. It is, however, not necessary to discuss the same in view of the provisions contained in section 47, C.P.C. In view of the foregoing discussion, we set aside the impugned order, dated 28‑3‑2001 in respect of C.M. No.449‑B of 2000. The said application, therefore, will stand revived before the learned Executing Court and shall be decided if necessary after recording evidence to settle the dispute between the parties adverted to above. The appeal is allowed in the above terms. Q.M.H./M.A.K./R.114/L Order accordingly.