2004 PLP 1637 (CLD)

M.M. Alam for Appellants. Muhammad Ahsan Rasool Chattha for Respondent. The appellants/judgment‑debtors, through the filing of the present appeal, have called in question order dated 14‑4‑2000, whereby, the learned Banking Court, after rejecting the reply to the show cause notice, issued warrants of arrest of the judgment‑debtors for keeping them in judicial lock up till the realization of the decretal amount.

2. Precisely stated the facts of the case are that pursuant to passing a decree for the recovery of Rs.53,88,620, against the appellants, by the learned Banking Court, vide judgment and decree dated 4‑5‑1999, which was assailed by the appellants by way of filing an appeal (RFA No.299 of 1999), the respondent‑Bank filed an execution petition. During the execution process, the appellants filed an application seeking directions to the respondent‑Bank to satisfy its claim from the sale of the pledged goods, which, according to the judgment‑debtors, are still in the custody of the respondent-Bank. It appears from the record that on the asking of the decree‑holder, for the execution of the decree through arrest and detention of the judgment‑debtors, the learned Banking Court issued show cause notice to the appellants/judgment debtors, which was contested by them. Ultimately, the learned Banking Court, after hearing the parties and finding that the decree‑holder is not in possession of articles, belonging to the judgment‑debtors, issued their warrants of arrest, vide order dated 14‑4‑2000, hence the present appeal.

3. The learned counsel for the appellant has contended that the learned Banking Court has passed the impugned order in complete oblivion of the law on the subject and facts of the case, thus, the same is not sustainable in law. He has further submitted that appellant's application for the sale of the pledged goods, is still pending. Conversely the learned counsel for the respondent‑Bank has supported the impugned order.

4. Upon the examination of the available record, we find that during the execution proceedings, the appellants filed an application under Section 18 of Act XV of 1997 with the prayer that the Bank may be directed to, firstly, sell the pledged goods and satisfy its claim and to pay the balance of sale proceeds to them, as the value of the goods are much more than the claim of the bank. Admittedly the said application was not decided by the learned Banking Court, inasmuch as we do not find any reply on record on behalf of the decree‑holder to the said application. Upon the perusal of the contents of the said application, we feel that the judgment‑debtors have raised crucial issues with specific assertion that the pledged goods are still lying in the custody of the respondent‑Bank and the decree could be satisfied through the sale of the pledged goods. There cannot be two opinions about it that the learned Banking Court was under a legal obligation to decide the application, either way, before embarking to execute the decree through the adoption of extreme measures of arrest and detention. The application cannot be allowed to remain pending un‑disposed. Although we find from the impugned order that the learned Banking Court has observed that "there is nothing on the record to hold that the decree holder is in possession of any articles belonging to the judgment‑debtors", yet to our mind these findings are devoid of reasons and rendered without any basis. It is not discernible from the record that upon what material, the learned Banking Court came to the conclusion that the Bank is not in possession of any pledged goods, inasmuch as the record does not reveal that any inquiry was undertaken on this aspect of the case. As a matter of fact, the learned Banking Court was obliged to initiate an inquiry about the status of the pledged goods and thereafter decided the said application either accepting the same or rejecting it, but in no way during the pendency of the application, the Darned Banking Court could have issued warrants of arrest of the judgment‑debtors. We are of the view that at least, the judgment‑debtors have this much right to ask the decree‑holder about the position of the pledged goods and the decree‑holder is obliged to explain about the status of the pledged goods.

5. In the above perspective, we have examined the impugned order and are of the view that the impugned order is not sustainable in law and the learned Banking I Court was under a legal obligation to have decided the aforenoted application before ordering the executing of the decree through the arrest and detention of the judgment, debtors. In view whereof, we find ourselves unable to concur with the findings of the learned Banking Court, as the same were rendered in complete ignorance of the record of the case and thus the findings are not only against the record of the case, but also in violation of law on the subject.

6. Upshot of the above discussion is that the present appeal is allowed and the impugned order dated 14‑4‑2000 is set aside with no order as to costs. Resultantly the learned Banking Court is directed to, at the first instance, decide appellant's application, filed under Section 18 of Act XV of 1997, after calling for the reply from the respondent‑Bank, (if not already filed) and after hearing the parties and of course in accordance with law. After the decision of the said application, either way, the learned Banking Court shall of course execute the decree in accordance with law. M.H./P‑148/L Case remanded.