2004 PLP 1081 (CLD)

‑‑‑‑S. 18‑‑‑Contract Act (IX of 1872), S. 28‑‑‑Execution proceedings‑‑‑Auction of mortgaged property‑‑‑Statement by judgment debtor that she would pay decretal amount as per schedule, which if accepted, then she would not seek remedy against auction of property‑‑‑Judgment debtor backed out from her undertaking, over which Executing Court ordered for sale of property‑‑‑High Court dismissed Constitutional petition filed by judgment debtor‑‑‑Contention of judgment debtor was that her statement that she would not seek any remedy was void as no party could contract not to avail remedy under law ‑‑‑Validity‑‑ Consequence of backing out from such statement by judgment debtor was that Executing Court would execute decree and sell property for recovery of decretal amount‑‑‑Judgment debtor, if desired to seek any remedy against any order passed by Executing Court, she would be at liberty to do so in accordance with law, which would be decided on its own merits, irrespective of her undertaking not to avail any remedy‑‑‑Supreme Court dismissed petition and refused leave to appeal. Abbas Mirza, Advocate Supreme Court and Mahmood A. Qureshi, Advocate‑on‑Record (Absent) for Petitioner. Nemo for Respondents. Date of hearing: 9th June, 2003. MUNIR A. SHEIKH, J.‑A decree was passed against the petitioner in the suit filed by respondent/bank for recovery of an amount of Rs.15,73,589 on 30‑7‑1998 with further amount permissible under section 15 of the Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act, 1997.

2. Learned counsel for the petitioner admitted that the decree was passed after dismissal of the application of the petitioner for leave to appear and defend the suit. He further admitted that the petitioner did not challenge the said decree in appeal or otherwise, therefore, the same became final in its terms.

3. In the execution proceedings the property of the petitioner, which she had given as security, was intended to be proceeded against by way of sale for recovery of the said amount. The petitioner appeared before the Court and made statement that she had already paid an amount of Rs.1,00,000 she will pay an amount of Rs.50,000 up to 26‑5‑1999 and the remaining decretal amount before 31‑12‑1999. It was made on 26‑5‑1999. She further stated that if the schedule is accepted and her property is not proceeded against she would not file any appeal by seek any remedy against the auction of the property.

4. The petitioner backed out from the said undertaking, therefore, the Executing Court, according to learned counsel, proceeded with the execution decree i.e. sale of the property of the petitioner.

5. Learned counsel for the petitioner wanted to challenge the decree on the ground that in the amount decreed in favour of respondent mark up over mark up has been allowed. We are afraid the petitioner in these proceedings legally cannot object to the decree for the same was passed after dismissal of her application for leave to appear and defend the suit and she did not seek any remedy against the said decree.

6. As regards part of the statement of the petitioner that she would not seek any remedy, learned counsel for the petitioner submits that this was void as no party can contract not to avail remedy under the law. The consequence of the backing out from the said statement/arrangement by the petitioner is that the banking Court shall proceed to execute the decree, sell the property of the petitioner for recovery of the decretal amount. If in future the petitioner seeks any remedy against any order passed in the executing proceedings regarding sale of the property or otherwise, she shall be at liberty to do so in accordance with law which shall be decided by the Court on its own merits irrespective of the undertaking given in the said statement that no remedy shall be sought.

7. So far as the impugned order, dated 5‑5‑2003 passed by the High Court is concerned it does not suffer from any illegality, therefore, this petition has no merits, which is accordingly dismissed and leave refused. S.A.K./K‑8/S Leave refused.