2002 PLP 183 (CLD)

Shamas Mehmood Mirza for Respondent. Date of hearing: 24th October, 2001. CH. IJAZ AHMAD, J.‑‑‑The brief facts out of which the present appeal arises are that late Iftikhar Ahmad Malik secured a loan from the respondent/ Bank. After the death of late Iftikhar Ahmad Malik, the respondent/Bank filed a suit for recovery against the present appellants being legal representatives of late Iftikhar Ahmad Malik before the Banking Tribunal, Lahore for the recovery of Rs.6,769,

376. The appellants filed reply of show‑cause notice issued by the Banking Tribunal and took a stand for appellants /defendants are not legal representatives of late Iftikhar Ahmad Malik under the law. They further took a stand that the property in question which was mortgaged with the respondent/Bank by late Iftikhar Ahmad Malik in 1992 was not owned by him at that time and he could not thus create a mortgage/charge over the same. The Banking Tribunal refused to accept the reply filed by the appellants to show‑cause notice issued to them and decreed the suit vide impugned judgment and decree dated 24‑7‑1997. The appellants being aggrieved filed this appeal.

2. The learned counsel of the appellants submits that loan was obtained by the deceased father of the appellants in his personal capacity and the appellants are not liable to pay the said debt in excess of the ‑assets left by the deceased and inherited by them. The deceased father/debtor mortgaged property which was in the personal name of the appellant No.l. He further submits that the said property was not inherited by the appellant No.l from the deceased. The learned counsel of the respondent/Bank submits that property was mortgaged by the father of the appellants. The learned Banking Tribunal after applying its mind dismissed the reply of the appellants and decreed the suit through the impugned judgment in accordance with law.

3. We have considered the contentions of the learned counsel of the parties and perused the record ourselves.

4. Since the appellants had taken a specific stand that appellants are not legal representatives of late Iftikhar Ahmad Malik. The appellants are not liable to pay the said debt in excess of the assets left by the deceased and inherited by them. The property in question which was mortgaged with the respondent/Bank belonged to appellant No.

1. The question of law was considered by the then Chief Justice Sardar Muhammad Iqbal, in Dr. Arshad Mahmood's case PLD 1974 Lah. 312 and laid down the following principle:‑‑ "Doubtless, in Ranjit Singh v. Mt. Narmadi AIR 1931 Nag. 173 it was held that 'in a suit filed against the debtor's heirs as the legal representative the plea that the defendant does not possess the assets of the deceased debtor could not be held to resist the suit, it could be raised only in execution proceedings'. This view was, however, not approved by a Division Bench of Nagpur High Court in S.A. No.514 of 1936 in In re: Babusa v. Khandas I have taken these facts from AIR 1943 Nag. 233 ‑ 235 by observing: in our opinion the view expressed in Heera Lall Mockerjee v. Digumbura Raloonee 14 WR 431 and by Ashworth, J. in Tamiz Bano v. Nand Kishore 49 All. 645 is correct .... In Madho Dass v. Radha Mal (1874) PR 213 it was held: the person who sues the legal representative of a deceased debtor must allege and prove that such representative is entitled to a certain estate.' It was further observed: 'the existence and receipt of estate by the legal representative should be inquired into before decree, unless a prima facie case appears on proof that the representative is entitled to an existing estate, without proof that it has come into his actual possession." This question cannot be decided without framing issues and recording evidence. The learned Banking Tribunal decided the case in summary manner without adopting the aforesaid procedure. In this view of the matter, the impugned judgment I and decree is set aside and case is remanded to the Banking Court to decide afresh after framing issues and allowing the parties to adduce evidence. Parties are directed to appear before the Banking Court on 5‑11‑2001. The learned Banking Court is directed to finalise the trial and decide the case within six months from today. S.A.K./M.A.K./I‑81/1???????????????????????????????????????????????????????????? ?????????? Case remanded.