P L D 2001 Lahore 135 (PLP)

AMIR ALAM KHAN, J.

This judgment will dispose of F.A.Os. Nos.31, 32, 33, 34, 35, 36, 37, 38 and 39 of 1986 as common questions of facts and law are involved therein.

2. All the abovesaid appeals are directed against the order dated 23-11-1985 passed by the learned Special Judge Banking, Lahore, whereby the applications of the judgment-debtors filed under section 47, C.P.C. was held to be maintainable and the report of the local commissioners appointed during the course of pendency of the main suit was also upheld.

3. The relevant facts for the disposal of the appeals afore-noted are that the appellant herein filed suits for recovery of different amounts against the respondents as arrayed in the aforesaid appeals. The suits proceeded and during the pendency thereof local commissioners were appointed to ascertain as to whether the pledged goods were available and still intact for the purpose of returning the same to the respondents. The local commissioners so appointed did render a report but the same was not considered for the learned Banking Court was of the opinion that it was not a stage to consider the same. However, some times later the parties agreed to the appointment of another commission, which was accordingly appointed, who rendered a consolidated report in the cases afore-noted on 4-3-1985. It was reported by the local commissioners that the pledged goods were not available with the bank for the one shown to them did not tally with the goods mentioned in the letter of pledge. The bank however, insisted that it is in possession of the pledged goods and it would return the same in species to the respondents. It was then that the respondents confessed judgment with the rider that if the bank returns them the pledged goods in species, the suits may be decreed and that the pledged goods would only be received on the payment of the decretal amount. Consequent thereupon, conditional decrees were passed in all the suits filed by the appellant.

4. In the course that followed the judgment-debtors filed applications under section 47, C.P.C. with the assertion that the judgment-debtors have reason to believe that now the appellant has fully realized its inability to return the pledged goods to the judgment-debtors, it has started disputing the true quantity; quality and condition of the pledged goods which has a direct relation to the execution, discharge and satisfaction of the decree, therefore, the Court may determine the same. The applications afore-noted were resisted by the decree-holder bank inter alia on the ground that the same were not maintainable for no execution as such had been filed by the bank and that the pledged goods were available with the bank for the purpose of handing over to the judgment-debtors, but they should first surrender the decretal amount and then demand the pledged goods. It was also maintained by the decree-holder bank that the first local commissioner had reported as to the condition, quantity and quality of the pledged goods, which is available on the file.

5. The question as to whether an application under section 47, C.P.C. could at all be entertained/maintained without there being an execution application filed by the decree-holder and the allied question as to whether in the circumstances the report of the local commissioner could be relied, had been decided by the Banking Court vide its judgment dated 23-11-1985, whereby the application was held to be maintainable while the report of the local commissioners was upheld.

6. The abovesaid order has been assailed in the present appeals.

7. The main thrust of arguments of the learned counsel for the appellant was to the effect that since no execution application had been filed by the decree-holder, therefore, the question relating to the execution, satisfaction and discharge of the decree did not arise at all hence the application filed by the judgment-debtors was premature and should not have been entertained by the learned Banking Court. This argument has not impressed us. As a matter of fact decree is formal expression of adjudication, which conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit. In the domain of execution, the satisfaction thereof can be obtained by the decree-holder by executing the same, while the judgment-debtor can also satisfy the decree by complying therewith. In the instant case the decree could have been satisfied by the execution thereof while the other mode open to the judgment-debtor was to obtain discharge by tendering the payment to the decree-holder. In both the cases afore-noted the matter falls in the domain of execution, satisfaction and discharge of the decree. There is yet another aspect of the matter i.e. the decree being conditional, it was open for the judgment-debtor to have claimed the pledged goods by offering the decretal amount and the bank was obliged by the terms of the decree itself to surrender the pledged goods to the judgment-debtors on the payment of the decretal amount, therefore, it was eminently a case which related to the execution, satisfaction and discharge of the decree and judgment-debtor could have also filed and maintained an application under section 47, C.P.C. we are fortified in this A view by the rule laid down in Erusappa Mudaliar v. Commercial and Land Mortgage Bank Limited ILR 23 Mad. 377 which has also been followed by the learned Banking Judge. The said rule is instructive and for that reason the same may be reproduced hereunder-- "We cannot construe the words 'a Court executing a decree' as meaning, as contended on behalf of the respondents, that the section only covers cases of proceedings initiated by the decree-holder and does not include applications (relating to the execution, discharge or satisfaction of the decree) made by the judgment-debtor." The judgment afore-noted has been delivered under the old section 244, C.P.C., which in its terms corresponds with the present section 47, C.P.C. Obviously the application under section 47, C.P.C. was competently filed before the Banking Court.

8. Coming to the second report of the local commissioners need it be mentioned here that the same was not objected to by either of the parties. The local commissioners had patently reported that the goods identified and shown by the bank did not tally. either the specification or the make as incorporated in the pledge letter, therefore, the same were not ascertained and found to be goods actually pledged with the bank. The learned counsel for the appellant relying on Muhammad Bakhsh v. Nizam Din PLD 1978 Lahore 31 argued that the material issue in the case could not be delegated to the local commissioners nor the findings arrived at by the local commissioners should be received as evidence in the case. Both the arguments afore-noted, are devoid of any merits for the local commissioners were appointed on the statement of the learned counsel for the bank and that too from the Awami Motors, (subsequently came to be- known as Sindh Motors) for the experts of the said concern were acknowledged to be the person having technical knowledge about the spare parts. Bank people are definitely estopped from challenging the said report. Needless to add that no objections were filed on the report of the local commissioners, therefore, it was rightly concluded that the bank people have accepted the same. Again the question being that of the condition, quality and quantity of the pledge goods could only be determined by appointment of the local commissioner, who could go to the godown of the bank to ascertain the same. It is ordained in Rule 10 of Order XXVI, C.P.C. that the report of the local commissioner shall be evidence in the suit and shall also form part of the record. In the absence of any objection to the report of the local commissioners by the decree-holder, the same had been rightly upheld by the learned Banking Court. In the circumstances, the learned counsel for the appellant has failed to point out any vitiative infirmity in the impugned judgment of the Banking Court.'

9. In result the F.A.Os. afore-noted are dismissed with costs. Q.M.H./M.A..K./N-52/L Appeals dismissed.