Mst. KHAIRUNNISA CHANNA vs FEDERATION OF PAKISTAN and others
This matter arises from a petition filed against the High Court's order upholding the execution proceedings initiated by a banking court. A recovery decree was passed against the petitioner on 30-7-1998 under the Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act, 1997, after the dismissal of her application for leave to appear and defend the suit. The petitioner did not challenge the decree in appeal, making it final. During execution proceedings, the petitioner offered a payment schedule and undertook not to challenge the auction, but subsequently backed out. The core legal question was whether the petitioner could challenge the final decree on merits during execution and the effect of her undertaking. The Supreme Court held that the petitioner could not challenge the final, unchallenged decree in execution proceedings, and while her undertaking not to seek legal remedies was void, the executing court was fully justified in proceeding with the execution and sale of the secured property for the recovery of the decretal amount. The petition was dismissed.
- Can a judgment debtor challenge a final decree in execution proceedings when leave to defend was refused and no appeal was filed?
- Whether an undertaking given by a party not to seek legal remedies under the law is void?
- Is a banking court competent to proceed with the sale of mortgaged property upon default of the judgment debtor's payment undertaking in execution?
- 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 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 .