Maj. (Recd.) MAHMOOD HUSSAIN vs HABIB BANK LIMITED, FAISALABAD And ANOTHER

CH. IJAZ AHMAD, J.--- The brief facts giving rise to this appeal are that the appellant and respondent No.2 secured a loan amounting to Rs.3 lacs from respondent-Bank, property of respondent No.2 was mortgaged with the respondent-Bank. The respondent-Bank filed suit for recovery before Banking Court No. 1, Faisalabad against the appellant and respondent No.2 for recovery of Rs. 4,36,776 on the basis of availing the facility of loan. The Banking Court decreed the suit vide judgment and decree, dated 6-1-1999 severally and jointly against the appellant and respondent No .2.

It is pertinent to mention here that appellant is principal borrower and immovable property of respondent No.2 was mortgaged as security for advancement of loan to the appellant. During the pendency of execution petition show-cause notice was issued to appellant under Order 21, Rule 37, C.P.C. By the Executing Court for 8-4-2000 to appear in person in Court and to intimate the Court whether warrant of arrest should be issued or not? The judgment-debtor No.2/respondent No.2 was directed to deposit another amount of Rs.50,000 in the Court on the said date. The Banking Court attached the property of appellant vide order, dated 9-3-2000, the appellant being aggrieved, filed an application for recalling of notice issued by the Banking Court to the appellant under Order 21, Rule 66 and Order 21, Rule 37, C.P.C. And also prayed that order for the auction of the property which has, already mortgaged with respondent NO-1 may be recalled the application was dismissed vide impugned order, dated 9-2-2001. The appellant being aggrieved, filed this appeal.

2. The learned counsel for the appellant submits that appellant had already deposited Rs. 1 lac and Rs.50,000 on 3-5-2000 and 9-3-2000 respectively. It was the duty and obligation of the Executing Court to auction the mortgaged property with respondent-Bank and the proceed in the matter against the appellant but the Banking Court erred in law to initiate proceedings against the appellant in a very haste manner in violation of the mandatory provisions of Civil Procedure Code.

The mortgaged property with the respondent-Bank is much more as compared to the balance amount of the decretal amount as the mortgaged property is more than Rs.4 lacs.

3. Respondent No.2 submits that loan was secured by appellant from respondent No. 1 and the property of respondent No.2 was mortgaged with respondent No. 1. He further submits that he did not receive a single penny from appellant out of the loan received by appellant from respondent No. 1.

4. The learned counsel for respondent-Bank submits that order of Banking Court is valid in the eyes of law. The Executing Court has inherent powers to execute decree in any manner.

5. We have given our anxious consideration to the contentions of learned counsel for the parties and perused the record. The judgment and decree reveals that it is simple money decree. It is settled principle of law that decree can be enforced by any of the mode authorized by Civil Procedure Code. In arriving to this conclusion we are fortified by the following judgments: Ramachandrarao Gangadkarrao and another's case AIR 1948 Bom. 143 and Gurappa Guraushiddappa Neeli's case AIR 1941 Bom. 90.

The aforesaid principle of law is also supported by Ishrat Hussain Siddiqui's case PLD 1968 Kar. 537.

It is also settled principle of law that it is the duty of the Executing Court to provide assistance to the decree-holder for execution of his decree and it should, therefore, offer him every possible and reasonable facility for realising the decretal amount in a short time as possible as the principle laid down in Mahary Bahadur Singh's case AIR 1936 Cal. 238. It is also settled proposition of law that Court has inherent jurisdiction while executing a decree to determine how and to what extent and in what manner the decree shall be executed, as decree may be executed simultaneously against both the persons and the property of the judgment---debtors. In arriving to his conclusion we are fortified by the following judgments:-- Venkappa and others' case AIR 1956 Hyd. 7 and Sayed Muhammad Hussain Shah's case PLD 1943

(sic) Lah. 166.

It is pertinent to mention here that the Court should sitting here to do justice and not allow technicalities to come in their way and deprive the decree---holders of the fruit of their decrees.

6. In view of what has been discussed above, this appeal has no merits and the same is dismissed.

There is no order as to costs.