2007 PLP 524 (CLD)

IQBAL HAMEED-UR-REHMAN, J.--The appellants through this appeal seeks dismissal of the execution petition of the respondent-Bank on the ground that the decretal amount stands paid.

2. Brief facts succinctly required for the determination of. this appeal are that a compromise decree for Rs. 10,47,957.85 inclusive of mark-up, excise duty and liquidated damages was passed against the appellants on 15-4-1996 by the Banking Tribunal Multan. Thereafter the respondent filed an execution petition against the appellants for the recovery of the following amount:-- (i) Decreed Amount Rs. 10,47,957.00 (ii) Cost of suit Rs.30,402.00. (iii) Excise duty from September to November, 1995. Rs.2,396.00 (iv) 20% Liquidated Damages Rs.1,96,156.00 (v) Total amount Rs.12,76,908.85 (vi) Amount received Rs.1,00,000.00 (vii) Recoverable amount Rs. 11,76,908.00

3. The appellants filed an application in the execution petition, stating that the decree-holder/Bank was entitled only to recover the decretal amount of Rs.10,47,957.85 and the appellants had paid the whole decretal amount and, therefore, they prayed that execution petition be disposed of and consigned to the record room after making observation that the decree had been fully satisfied. The Banking Court No.11, Multan, vide order dated 15-9-2005 dismissed the application of the appellants. Hence this appeal.

4. It is argued on behalf of the appellants that the decree was passed under the Banking Tribunals Ordinance, 1984 (since repealed) and under the said Ordinance, no mark-up could be charged after the expiry period; that the decree was for Rs.10,47,957.85 and the excess amount of Rs.1,28,951.00, as has been claimed by the respondent-Bank in the execution petition, is devoid of any legal sanctity and cannot be allowed to be charged and that the appellants had paid Rs.10,48,000 and as such Rs.42.15 may be refunded to them.

5. It has been argued on behalf of the respondent-Bank that it was a compromise decree on the basis of Mark A, in which it was ordered that if the appellants failed to deposit four consecutive instalments, the bank could claim upto date mark-up and as such the execution petition was filed with upto. date mark-up and the appellants are liable to pay Rs.11,47,000 after deduction of the amount of Rs.61,000 deposited by them. Therefore, the Banking Court has rightly dismissed the application of the appellants.

6. Arguments heard. Record perused.

7. The suit was decreed under the Banking Tribunals Ordinance, 1984 and under that law future mark-up or upto date mark-up was neither allowed nor recoverable from the judgment-debtor. A perusal of the compromise decree dated 15-4-1996 also shows that no such mark-up was allowed to the decree-holder/Bank, as such the execution petition on the basis of upto date mark-up could not be allowed. It is settled principle that an Executing Court could not go behind the decree and it is obliged to execute the decree as it is. The appellants made total payment of Rs.10,48,000 as under: (i) Amount deposited in the Court on 11-3-1999 Rs.1,50,000 (ii) Amount deposited in the Court on 19-9-1999 Rs.50,000 (iii) Amount deposited in the respondent-Bank on 16-11-1999 Rs.2,77,000 (iv) Amount deposited in the respondent-Bank on 11-8-2005 Rs.4,10,000 (v) Amount deposited in the respondent-Bank on 12-9-2005 Rs.61,000 (vi) Amount admitted by the respondent-Bank in its execution petition. Rs.1,00,000 Total Rs.10,48,000 It appears that as the decree was for Rs.10,47,957.85 and the appellants deposited an amount of Rs.10,48 ,000, they have deposited Rs.42.15 in excess.

8. In view of the above, this appeal is accepted and the impugned order dated 15-9-2005 is set aside. Resultantly, the execution petition stands dismissed. No order as to costs. H.B.T./S-14/L Appeal accepted.