2016 PLP 1281 (CLD)

SYED SAEEDUDDIN NASIR, J.

Through the instant Constitutional Petition the petitioner seeks declaration that the proceedings initiated by the respondent No.1, the Banking Court No.II, Karachi, through Execution Application No.24 of 2013 are illegal, and the order dated 24.3.2015 as well as order to release the documents of respondent No.4 by the respondent No.1 are illegal and are liable to be set aside. The respondent No.2 filed a Banking Suit No.47 of 2011 before the respondent No.1, which was decreed through a consent order dated 05.11.2011 and compromise decree was drawn on 26.11.2011 for a total amount of Rs.3,29,90,744.15. However, on account of default in honouring the compromise decree by the petitioner and other judgment debtors the respondent No.2 filed Execution Application No.91 of 2012 before respondent No.1 and during its proceedings parties entered into an agreement dated 24.7.2012 whereby the respondent No.2 agreed for final settlement of the entire liability of the borrowers at Rs.28.00 million, out of which amount the judgment debtors paid Rs.10.00 million to the respondent No.2 and the remaining amount of Rs.18.00 million was to be paid in eighteen (18) equal installments. Thereafter, the petitioner as well as the respondents Nos.3 to 8 could not repay the balance loan amount due to which per clauses (F) & (G) of the decree, obtained by the respondent No.2 stood revived. Clauses (F) and (G) of the compromise are reproduced as under: "(F) That in case of default and/or breach/violation of any of the terms and conditions mentioned herein above, this compromise agreement shall immediately be treated as ineffective, cancelled and withdrawn and first party shall be at liberty to recover the entire decretal amount payable by second party, at once, by way of sale of mortgaged property without any further notice by filing fresh execution application. (G) That non-payment of any ONE monthly installment by the second party shall be treated as default and the First Party shall be at liberty to recover entire settlement among along with mark up and all other charges." Upon careful examination of the decree we have observed that the decree in Suit No.47 of 2011 is against all the defendants jointly and severally, petitioner is defendant No.2 in Suit No.47 of 2011 and J.D. No.2 in Execution Application No.24 of 2013. Therefore, the petitioner cannot hide behind other judgment debtors and say that only petitioner's mortgaged property should not be sold, and that the mortgaged properties of other judgment debtors should also be sold along with the petitioner's. It is settled law that the liability of the surety is co-extensive with that of the principle debtor, and the decree holder can proceed to exhaust his remedy for recovery of loan amount either against the principal borrower or the surety/guarantor. In the instant case, if the judgment debtor has decided to execute the decree against the mortgaged property of the petitioner, the decree holder is absolutely justified in doing so, therefore, we see no merit in this petition, which in our view is misconceived. In view of the facts and circumstances narrated herein above we see no force in the arguments extended by the learned counsel for the petitioner. Consequently, we dismiss the instant petition in limini at preliminary/Katcha Peshi stage along with all listed applications. SL/A-7/Sindh Petition dismissed.