2003 PLP 457 (CLD)

Umar Mehmood Kasuri for Respondent. Date of hearing: 22nd July, 2002. SYED JAMSHED ALI, J.‑‑‑The order dated 17‑11‑2000 of the ‑ learned Executing Court has been assailed in this appeal which arises out of the following circumstances.

2. On 11‑5‑2000 the learned Modaraba Tribunal passed a decree in the sum of Rs.1,401,74,216 against the appellants. The respondent sought execution of the said decree by sale of seven properties belonging to the judgment‑debtors. The said properties were attached and ordered to be put to auction vide order dated 13‑7‑2000. The appellants filed an objection petition with the averment that only three, out of the seven properties were mortgaged in favour of the respondent and, therefore, the other four properties in the 'Fard Taleeqa' could not be put to auction. This application was rejected by the learned Executing Court vide order. dated 17‑11‑2000 with the observation that the properties being auctioned had already been attached and the objection petition was filed only to put obstructional spokes in the way of execution proceedings: It was further observed that provisions of rule 23‑A of Order XXI of the Code of Civil Procedure had not been complied with by the appellants. The order dated 17‑11‑2000 has been assailed in this appeal.

3. The learned counsel for the appellants referred to paragraph 21 of the plaint to contend that only three properties were specified in the plaint as having been mortgaged and satisfaction of the claim was sought by the respondent by sale of the aforesaid properties. The suit of the respondents was decreed as prayed for and, therefore, the other four properties in the 'Fard Taleeqa' could not be put to auction. It was further contended that properties described at Sr. Nos.2 and 3 in the 'Fard Taleeqa' were already mortgaged with the Gull Commercial Bank and, therefore, could not be proceeded against.

4. On the other hand, the learned counsel for the respondent submits that as far as the properties at Sr. Nos.2 and 3 in the 'Fard Taleeqa' are concerned, Gulf Commercial Bank had also filed an objection petition which was allowed with the consent of the respondent decree‑holder and four properties regarding which Gulf Commercial Bank had filed objection petition (including the aforesaid two properties) were released. He also contends that this appeal is not maintainable due to the bar contained in the proviso to section 30 of the Modarba Companies and Modarbas (Floatation and Control Ordinance), 1980, as the order impugned is interlocutory. He further submits that the decree was passed against the appellants, the mortgaged property was only a security and the appellants were bound to satisfy the decree which could be executed against their other properties.

5. Maintainability of the appeal on behalf of the Company, the principal debtor has also seriously been questioned on the ground that no resolution of the Board of Directors has been placed on record permitting appellant No.2 to file this appeal on behalf of the Company.

6. The submissions made by the learned counsel for the parties have been considered. We have perused the plaint. Although in para. 21 thereof the respondent had claimed satisfaction of their claim by sale of three mortgaged properties specified therein but the first prayer specifically made in the plaint was a decree for Rs.1,63,78,849 in favour of the respondent against the appellants while the second prayer made in the plaint was that the properties specified in para. 21 of the plaint be sold to recover the said amount. Accordingly, the decree was passed as prayed for. Apart from the fact that the mortgaged property was also liable to satisfy the claim of the respondent, the appellants were bound to satisfy the decree which was passed against them as well besides directing the sale of the mortgaged B properties. The mortgage is, only a security and the debtor is not absolved of is liability to satisfy the decree. Therefore, the decree‑holder could legitimately proceed against any property of the judgment‑debtor appellants irrespective of the fact whether it was or was not mortgaged.

7. For what has been stated above, we find no merit in this appeal which is dismissed. H.B.T./A‑636/L Appeal dismissed.