Mst. Khair-un-Nisa Channa vs Federation of Pakistan and others
The petitioner challenged the execution of a recovery decree passed against her in favor of a respondent bank under the Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act, 1997. The core legal questions involved whether a final and unappealed decree could be challenged in execution proceedings on the ground of excessive markup, and the effect of an undertaking given by the judgment-debtor not to pursue legal remedies. The Supreme Court held that the petitioner could not challenge the final decree in execution proceedings after failing to appeal its initial passing and the dismissal of her leave to defend application. The Court further clarified that the consequence of the petitioner backing out of her payment schedule and undertaking was that the executing court would proceed with the execution and sale of the mortgaged property, while preserving her liberty to challenge future orders in execution in accordance with law. The petition was dismissed and leave to appeal refused.
- Can a judgment-debtor challenge a final decree in execution proceedings after failing to appeal its passing?
- Whether an unappealed decree passed after the dismissal of an application for leave to defend becomes final?
- What are the legal consequences when a judgment-debtor backs out of an undertaking given before the executing court?
- Section 15, Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act 1997
ORDER
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/- upto 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 or 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 decretai 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.
Accordingly.