UNITED LEATHER EXPORTS through Haji Muhammad Iqbal and 4 others vs NATIONAL BANK OF PAKISTAN through Branch Manager

MIAN HAMID FAROOQ, J.---Pursuant to passing a decree for the recovery of Rs.12,30,724.40, together with costs, against the appellants, by the Defunct Banking Tribunal, vide judgment and decree dated 13-6-1995, the decree-holder filed the execution petition. During the execution process, the appellants paid a sum of Rs. 12,56,279.40 to the respondent-Bank, which issued clearance certificate dated 23-10-2000. Subsequently, the learned Executing Court required the judgment-debtors to pay certain amount as future mark-up and thereupon, on 23-6-1999, the learned counsel for the appellant stated before the Executing Court that the judgment-debtors will pay the amount of mark-up uptil 30-9-1999. The appellants failed to pay the amount of future mark-up and the learned Banking Court directed the judgment-debtors to pay a sum of Rs.1,12,072 to the respondent-Bank, and to produce clearance certificate, vide impugned order dated 28-10-2000, hence the present appeal.

2. Despite service for today, none has entered appearance to defend this appeal, hence the respondents are proceeded ex parte.

3. Learned counsel for the appellant has contended that the Banking Tribunal, while passing the decree, did not award future mark-up to the respondent-Bank and the appellants have paid the decretal amount, which is evident from the certificate, issued by the respondent-Bank, thus nothing is due from the appellants. He has further submitted that the appellants are not bound by the statement of their learned counsel, as the admission on a wrong point of fact or law is not binding. He has relied upon Messrs Asian Associated Agencies Ltd. Karachi v. Pakistan through Secretary, Ministry of Industries Government of Pakistan 1999 M LD 2825; Barkhurdar v. Muhammad Razzaq PLD 1989 SC 749.

4. We have examined the available record, including the decree, and find that the then Banking Tribunal passed a decree for the recovery of Rs. 12,30,724.40 with costs and future mark-up was not allowed. Decree sheet shows that a sum of Rs.25,555 was granted as costs to the respondent- Bank, thus, the total decretal amount comes to Rs.12,56,279.40 A (1,230,724.40 + 25,555.00).

Admittedly, the said amount was paid by the appellants to the respondent, on 23-10-2000, which is evident from the clearance certificate, issued by the respondent-Bank, and from the impugned order. It is, thus, clear that the respondent-Bank was not awarded future markup and the decretal amount has duly been paid. The learned counsel has rightly relied upon the case of Messrs Asian Associated Agencies Ltd. Karachi (ibid) in support of the established principle that the executing Court could not go B beyond the terms of the decree, which have attained finality.

5. We are of the firm view that the respondent-Bank is not entitled to claim the amount of future mark-up, as the same was not awarded to it at the time of passing of the decree. Needless to add that the then Banking Tribunal under the C provisions of Banking Tribunal, Ordinance, 1984 (since repealed) was not empowered and competent to award the amount of future mark-up at the time of passing the decree. Now coming to the statement of the learned counsel for the appellants on 23-6-1999. on which the respondent-Bank appears to be banking upon. It is true that the appellants undertook to pay the amount of mark-up from 1-4-1999 uptil 30-9-1999 and they did not fulfil the requirements of their statement, which resulted in passing of the impugned order, but it is equally true that admission, which was made on wrong point of fact or is made in ignorance of a legal right, has no binding effect on the person making it. If any case-law is needed, judgments reported as Shahzadi Sharaf Sultan and another v. Brig. Shahzada Sher Muhammad Jan PLD 1963 (W.P.) Lahore 606; Ahmad Khan v. Rasul Shah and others PLD 1975 SC 311 and Barkhurdar v.

Muhammad Razzaq PLD 1989 SC 749 can be referred. In view whereof, we believe that merely on the statement of the learned counsel for the appellants, they cannot be compelled to pay the future mark-up, which, as noted above, was not granted to the bank at the time of passing of the decree.

6. In the above perspective, we have examined the impugned order and find that it suffers from legal defects and errors and the same cannot be allowed to be maintained. We have strong reasons to reverse the said order, which we hereby do.

7. Upshot of the above discussion is that the present appeal is allowed and the impugned order dated 28-10-2000 is set aside with no order as to costs.