2005 PLP 624 (CLD)

The brief facts out of which the present appeal arises are that respondents Nos.2 to 10 secured loan from respondent-Bank. The respondent-Bank sanctioned and released the loan to respondents Nos.2 to 10 after mortgaging their properties as well as property of the appellant. Respondents Nos.2 to 10 failed to discharge the liabilities of the respondent-Bank. Respondent-Bank being aggrieved filed a suit for recovery against respondents Nos.2 to 10 and the appellant in Banking Court No.1, Gujranwala. Ex parte decree was passed against respondents Nos.2 to 10 on 4-10-2001 as they did not file application for leave to appear and defend the suit within prescribed period whereas the appellant filed application for leave to defend before the Banking Court which was rejected on 31-1-2003 and the suit was also decreed against the appellant on 31-1-2003. The appellant being aggrieved filed this appeal.

2. During the pendency of the appeal respondents Nos.2 to 10 and respondent No.1 have arrived to an agreement to allow respondents Nos.2 to 10 to discharge their liabilities in easy instalments. Respondents Nos.2 to 10 have paid two instalments to the respondent-Bank along with down payment which they have mentioned in the agreement arrived between the parties. This fact was not denied by the Manager of the Bank. Copy of the letter dated 15-1-2005 and letter dated 11-6-2004 are also placed on record.

3. Learned counsel of the appellant submits that in view of the subsequent events the decree against the appellant has become redundant as the respondent-Bank has settled the dispute with respondents Nos.2 to 10 and this Court has ample jurisdiction to look into the subsequent events at the time of deciding the case between the parties. Learned Standing Counsel submits that appellant has not settled the dispute with the respondent-Bank, therefore, appeal has not become redundant.

4. Be that as it may, this Court has ample jurisdiction to look into the subsequent events at the time of deciding the case in view of the law laid down by the Division Bench of Karachi High Court and Honourable Supreme Court in the following judgments:-- Nasir Jamal v. Zubaida Begum 1990 CLC 1069 Mst. Amina Begum v. Mehr Ghulam Dastigir PLD 1978 SC

220. It is settled principle of law that nobody is allowed to approbate and reprobate. As the respondent-Bank after the decree secured by the respondent-Bank has settled the dispute by way of agreement with respondents Nos.2 to 10, therefore, appeal is allowed. However, respondent-Bank is well within his right to secure the decretal amount from respondents Nos.2 to 10 in terms of the agreement arrived between respondents Nos.2 to 10 and respondent-Bank. In case respondents Nos.2 to 10 fail to honour their commitment the respondent-Bank is at liberty to avail appropriate remedy under the law. With these observations the appeal is disposed of. M.B.A./M-869/L Order accordingly.