1999 PLP 1918 (SCMR)

IRSHAD HASAN KHAN, J.

The petitioner/National Bank of Pakistan challenged the money decree dated 29-6-1998 for the recovery of Rs. 1,38,86.9 passed against it and in favour of the respondents/decree-holders through Regular First Appeal (R.F.A. No. 337/98), before the Lahore High Court.

2. The learned Division Bench admitted the appeal to regular hearing vide order dated 22-9-1998. Meanwhile, operation of the decree was suspended subject to the petitioners herein depositing the decretal amount as well as the balance amount in terms of the amended decree. It would be advantageous to reproduce the impugned order, which reads thus:- We have noted that in compliance with the order dated 22-9-1998, the appellant has deposited the original decretal amount before the Deputy Registrar (Judicial) of this Court but has not deposited the whole of the decretal amount as rectified by the amended decree.

2. The appellant is directed to deposit the balance of the decretal amount with the above said Officer of this Court within two weeks.

3. No one has entered appearance on behalf of the petitioner bank Challenge has, however, been made to the impugned order in the memorandum of Appeal, inter alia, on the following grounds. (1) the original decretal amount has already been deposited in court. The decree had been amended during the pendency of the appeal in the High Court but notwithstanding pendency of appeal before the High Court the trial Court amended the judgment and decree without notice to the petitioner. In the circumstances, it was urged that the High Court had not exercised its discretion in accordance with the law while ordering to deposit the differential amount. (1) The National Bank of Pakistan was established under Ordinance XIX of 1.949 under Government of India Act, 1935 and as such is part of the Government, therefore, exempted to deposit the decretal amount in view of the dictum laid down by this Court in the case, of Haii Banaras Khan v. Central Government through Secretary Defence and Military Estate Officer (1986 SCMR 1805). (3) The impugned order affects the protection available to the Government against the requirement of any security in terms of Order XXVII, Rule 8, C.P.C., inasmuch as, the petitioner bank could always pay any amount at the call of the Court's order, therefore, the impugned order for depositing the decretal amount in cash was not reasonable, in the facts and circumstances of the case.

4. The case of Haji Banaras Khan (supra), relied upon by the, petitioner, has no relevance to the facts and circumstances of the present case. Suffice it to say that Order XL1, rule 7, to the effect that," No security to be required from the Government or a public officer in certain cases", has been repealed. Furthermore, the petitioner having once deposited the original decretal amount in cash in terms of the order dated 22-9-149'8, we fail to understand the difficulty in depositing the balance amount as contemplated by the amended decree. Under Order XLI, Rule 8, C.P.C. it is discretionary with the Court to pass orders, in case of a decree for the payment of money, to deposit the decretal amount or to furnish security for its payment; and, in the case of any other decree, to furnish security for the due performance of the decree. Here, having regard to the facts and circumstances of the case, the appellate Court passed orders for deposit of cash, to which no exception can be taken. Even otherwise, this Court ordinarily does no interfere with interlocutory orders of the High Court except in exceptional circumstances, which are lacking in the instant case. However, with a view to protecting the rights of both the parties, we direct that the respondents shall give an undertaking to refund the amount to the petitioner in case the appeal is allowed by the High Court. We further direct that the decretal amount so deposited, shall be invested in some profit carrying scheme of the Government till the final disposal of the appeal. With the above observation, the petition is disposed of. H.B.T./N-53/S Order accordingly