2005 PLP 343 (CLD)
SHAHNAWAZ and others‑‑‑Appellants Versus ZARI TARAKIATI BANK OF PAKISTAN (ADBP) through Manager‑‑‑Respondent E.F.A. No.439 of 2003, decided on 21st January, 2004.
| Citation | 2005 PLP 343 (CLD) |
| Forum / Court | Lahore |
| Bench Members | Mian Saqib Nisar and Syed Sakhi Hussain Bokhari, JJ |
| Parties | SHAHNAWAZ and others‑‑‑Appellants Versus ZARI TARAKIATI BANK OF PAKISTAN (ADBP) through Manager‑‑‑Respondent E.F.A. No.439 of 2003, decided on 21st January, 2004. |
Q1: What are the key laws and sections cited in 2005 PLP 343 (CLD)?
This judgment primarily cites: statutory provisions as referenced in Pakistani case law index.
Q2: Which judicial bench decided the case 2005 PLP 343 (CLD)?
The case was heard and decided by the Lahore bench comprising: Mian Saqib Nisar and Syed Sakhi Hussain Bokhari, JJ.
Q3: What is the official citation format for this judgment on Pakistan Law Portal?
Cite this legal precedent as: 2005 PLP 343 (CLD) (SHAHNAWAZ and others‑‑‑Appellants Versus ZARI TARAKIATI BANK OF PAKISTAN (ADBP) through Manager‑‑‑Respondent E.F.A. No.439 of 2003, decided on 21st January, 2004.). Read the full summary and cross-referenced laws free on Pakistan Law Portal.
Representation
- Malik Imran Nazir Awan for Appellants.
- Haider Ali Shah for Respondent‑Bank.
Headnotes / Summary
Civil Procedure Code (V of 1908)‑‑‑ ‑‑‑‑Ss.2(2), 47, 0.1, R.10 & O.XXI, R.11‑‑‑Decree, execution of‑‑‑Objection‑‑‑Necessary parties, non‑impleading of‑‑ Original loanee died and suit for recovery of bank loan was filed‑‑‑Bank failed to implead all the legal heirs of the deceased loanee‑‑‑Suit was decreed by Banking Court in favour of bank‑‑‑Objection filed by the appellants before Banking Court was that although they were the legal heirs but they were not impleaded in suit as defendants so decree could not be executed against them‑‑‑Objection petition was dismissed by Banking Court‑‑‑Validity‑‑‑Banking Court failed to follow, not only the law provided under the special statute but also the Civil Procedure Code, 1908, providing as to who were the necessary parties, in a suit against whom a valid decree could be passed‑‑‑Banking Court had also violated the rule of natural justice by passing a decree against persons who were not even party to the suit and such decree was neither executable against them nor the defect could be removed in execution proceedings‑‑‑Order passed by Banking Court was set aside‑‑‑Appeal was allowed in circumstances.
Judgment & Decree
Mst. Sakina Bibi, obtained some loan facility from the respondent‑Bank; she however, died on 22‑2‑1988. On 30‑6‑1992, the respondent‑Bank brought a suit for recovery against Sakhawat Ali, Zaman Khan, Falak Sher and Liaqat Ali_ showing all of them to be the legal representatives of Mst. Sakina Bibi. The suit was finally decreed on 30‑11‑1996. In execution of the decree, the property of Mst. Sakina Bibi, which had devolved upon the present appellants was sought to be put to auction; when the appellants approached the Court by filing objection petition, stating that, they had never been impleaded as party in the suit, though they were the legal representatives of the deceased lady and thus, the decree was not against them, which could not be executed qua the property, which is now owned by them. This objection petition has been dismissed by the learned Banking Court through the impugned order.
2. Learned counsel for the appellants contends that admittedly, the appellants Nos.1 to 3 were not impleaded as party in the main suit. Confronted with the above, learned counsel for the respondent‑Bank concedes that erroneously Sakhawat, Zaman Khan, and Falak Sher were arrayed as defendants, but realizing this error, the bank moved an application at the execution stage for impleading the appellants Nos.1 to 3 as party to the proceedings; this application perhaps was allowed and the objection petition of the present appellants was dismissed.
3. We are afraid that, the learned Banking Court has absolutely failed to follow not only the law provided under the special statutes, but also the Civil Procedure Code, in relation to, who the necessary parties in a suit are, against A whom a valid decree can be passed. The learned Court has also violated the rule of natural justice by virtually passing a decree against those, who were not even party to the suit and such decree was neither executable against them nor the defect could be removed in the execution proceedings. In the light to above, by allowing this appeal, the objection petition filed by the appellants Nos.1 to 3 is accepted and the judgment and decree is held to be in executable against them. However, if any other remedy is available to the respondent‑Bank, that may be construed. It is clarified that, the decree against the appellant No.4, who was the original party, shall remain intact. M. H. / S‑10 / L Appeal allowed.