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Civil Revision No. 1353 of 1978, decided on 23rd December, 1986.

‑‑‑0. XXI, R. 23‑A, 0. XXXVII, Rr. 2, 3, Ss. 151, 152, 153 &115‑‑Banking Companies (Recovery of Loans) Ordinance (XIX of 1979), S. 6‑‑Suit for recovery of Bank loan‑‑Decree for‑‑Execution of‑‑Objections to‑‑Judgment‑debtors against whom decree was passed three years before in suit for recovery of loans filed by Bank, prayed before executing Court for deletion of their names from decree Judgment debtors having made application under Ss. 151, 1.52 & 153, C.P.C. were directed by executing Court to furnish Bank guarantee of specified amount failure in which would entail rejection of application‑‑Judgment‑debtors failed to furnish Bank guarantee and not only took active part in whole proceedings, but being fully aware of decree against them neither raised any objection against such decree nor filed appeal during period of three years‑‑Judgment‑debtors on more than one occasion made offer to pay suit amount provided interest on such amount and costs thereon were waived‑‑Objecting against decree having consciously been waived by judgment‑debtors by their conduct, names of judgment debtors, held, could not be deleted from such decree‑‑Exercise of discretionary revisional jurisdiction in favour of petitioners/judgment debtors was refused in circumstances.

Sh. Abdul Hayee Mansoor Ahmad for Petitioners.

Muhammad Yaqoob Khan for Respondents.

Date of hearing: 16th December, 1986.

The facts necessary for the disposal of this revision petition under section 115, C.P.C. are that National Bank of Pakistan, respondent No. 1 filed a suit on 9‑3‑1968 for the recovery of Rs.17,23,406.19 Rs. Seventeen lacs twenty‑three thousand four hundred and six and paisas nineteen only) against the defendants jointly and severally with future interest from the date of institution of suit till realization. It was further prayed that in case the defendants fail to pay the decretal amount, the mortgaged immovable property, the encumbered assets, mortgaged and hypothecated goods mentioned in the plaint be ordered to be sold for realization of the decretal amount. The suit was contested for years and ultimately vide order, dated 3‑2‑1975, the suit was decreed against the defendants. This decree was not challenged by filing an appeal by any of defendants/ judgment debtors for years together. Then in March, 1978, an application under sections 151, 152 and 153, C.P.C. was filed before the executing Court praying that the names of defendants, who are now the petitioners in this civil revision, be struck off from the decree and the execution proceedings, if any, should proceed against Mian Aziz‑ud‑Din only for recovery of the decretal amount or the decree be set aside and the proceedings should start in accordance with law from 3‑2‑1975 onwards. On submission of this application, executing Court vide order, dated 7‑11‑1978 directed the petitioners/judgment‑debtors to furnish a bank guarantee to the tune of Rs.20,00,000 (Rs. twenty lacs). It was clarified that failure of the petitioners/judgment‑debtors to furnish the bank guarantee would entail rejection of the application. The bank guarantee was not furnished and ultimately the application was dismissed by the learned Civil Judge vide order 19‑11‑1978. This order and the order, dated 7‑11‑1978 were then impugned by filing the present revision petition.

2. The case of the petitioners is that the petitioners had filed the application under sections 151, 152 and 153, C.P.C. and as such the order to furnish bank guarantee in terms of the provisions of Rule 23‑A, Order XXI, C.P.C. could not have been passed and consequently on failure to furnish a bank guarantee, the application could not legally be rejected; that the decree at best could be passed against Mian Aziz ud Din defendant (deceased) only as he alone had confessed the judgment and not against the other defendants; that in any case, the petitioners Nos. 11 and 12 who are legal representatives of Mrs. Rehmat Khan could not be impleaded as defendants in the suit as the suit was held to have been abated against Mrs. Rehmat Khan vide order, dated 28‑4‑1969 by the learned civil Judge. It was added 'that impleading of legal representatives of Mrs. Rehmat Khan on 28‑10‑1974 was illegal as no notice was given to the said legal representatives and that the application was accepted on the very date of its submission.

3. I have heard Mr. Abdul Hayee Mansoor Ahmad, Advocate for the petitioners and Muhammad Yaqoob Khan, Advocate for the respondent No. 1. None has entered appearance on behalf of Mian Aziz ud Din, deceased respondent No. 2.

4. The foremost fact to be noted is that no appeal was filed either by the petitioners or by Aziz ud Din defendant, Managing Director of the company against the decree, dated 3‑2‑1975 passed by the learned trial Court. This revision petition was filed after almost three years of the passing of the impugned decree. During the pendency of revision petition, C.M. No. 6927/C/78 was filed by the petitioners saying that on the last date of hearing, the petitioners made an offer for the payment of decretal amount and the same was accepted by the respondents but during the course of drafting the compromise, a minor dispute had arisen with regard to interpretation of the decree. The details of agreement and disagreement given in the said application read as under:‑‑

Rs.18,23,406 (Rupees eighteen lacs twenty‑three thousand four hundred and six only) (Principal amount about rupees seven lac and interest about eleven lac) which the petitioner is willing to pay @ Rs.2 lac per month against the release of pledged goods worth rupees one lac of the invoice value in four equal monthly instalments.

Rs.3,93,000 (Rupees three lac ninety‑three thousand only). This is the amount of interest on the decretal amount from the date of the decree uptodate. The petitioners' contention is that in terms of the decree this amount is not due as Rs.50,000 were tendered to the respondent but the respondent in contravention of the order and decree of the Court did not accept the same and returned the same after a lapse of one year. The detailed contentions alongwith the necessary orders are attached as Annexure 'A"'.

Thereafter, it was suggested in the application that the bank should start releasing the goods and receive the amount as per agreement and so far as the disputed amount of liability is concerned, the executing Court can be directed to determine the liability. It was added that the revision petition is disposed of in terms of above submissions. The disagreement as to the payment of interest was raised on the basis that on 6‑1‑1975, a sum of Rs.50,000 (Rs. fifty thousand) was tendered to the respondents which they returned on 10‑1‑1976. It was added that had the bank accepted this amount, judgment‑debtors would have paid the amount of interest within the period fixed by Court and in that eventuality the judgment‑debtors would not have rendered themselves liable to pay the interest at the rate of 6 as directed by the Court. This C . M . application came up before the Court on 18‑12‑1978 and it was noted in the order‑sheet that the dispute remains only of Rs.3,93,000 (rupees three lac and ninety‑three thousand) being claim of the bank as interest on 23‑11‑1978 on account of non‑payment of the decretal amount within the stipulated period of one year and six months from the date of decree. The parties then took time for settling the dispute with regard to the interest. Thereafter, revision petition came up for hearing on the many dates till 7‑5‑1980. On each date, time was taken for resolving the dispute amicably. Thereafter, the revision petition did not come up for hearing till 18‑6‑1986. On this date with the agreement of the learned counsel for the parties, the bank was allowed to dispose of pledged goods and to adjust to the amount realized towards the liability. The respondent bank then filed C.M. No. 855/C‑86 and vide order, dated 17‑2‑1986 again with the agreement of learned counsel for the parties, the bank was allowed to sell the pledged machinery to Inter State Engineering Groups Limited. On 17‑2‑1986, the matter was adjourned as the learned counsel for the parties stated that the petition be adjourned as after sale of pledged goods and machinery, the parties will come to know of the exact position of the outstanding amount and then there is possibility of settling the dispute mutually. Ultimately on 16‑12‑1986, the learned counsel for the parties stated that the compromise could not be affected.

4. From the above resume of the facts, it is apparent that the petitioners consciously waived their objections against the decree as by moving C.M.No. 6927/L‑78 objection was raised only to Rs.3,93,000 (Rs. three lac and ninety‑three thousand), the sum being claimed by the bank as interest as on 23‑11‑1978. As regards this dispute, their plea was that they would have paid the decretal amount but for return of sum of Rs.50,000 (Rs. fifty thousand) tendered to the bank on 6‑1‑1975. This amount was returned admittedly on 10‑1‑1976. Now the decree was passed on 3‑2‑1975. The amount was returned on 10‑1‑1976. From this, it is apparent that the petitioners were aware of the decree passed against them as well and they had no objection to the passing of the decree against them as otherwise no question would arise of paying the amount in terms of the decree within the period fixed by the decree. Moreover, payment of Rs.50,000 (Rs. 'fifty thousand) alone would have not satisfied the principal sum of the interest accrued and allowed. Had the petitioners intended to pay the amount in the period fixed by the decree, they would have tendered more amount in addition to the amount already remitted. The plea that they would have paid the decretal amount but for the return of the aforesaid sum, cannot be accepted as the facts and circumstances appearing on record sufficiently belie this plea. Again according to the petitioners, they had remitted Rs. fifty thousand on 6‑1‑1975 pursuant to the order, dated 6‑11‑1974. Now the position obtaining on the record of the suit is that on 6‑6‑1974 the application of the petitioners for release of pledged goods on payment of invoice value of goods was turned down. Again on 6‑11‑1974 the order passed on the fresh application was that if the judgment‑debtors deposit Rs. fifty thousand, then the pledged goods of the invoice value of Rs. twenty‑five thousand be released to them. The defendant bank then submitted an application for review of order, dated 6‑11‑1974 on the plea that the release of pledged goods could not be ordered until the defendants are not directed to pay the principal amount alongwith interest. Notice of this application was issued to the defendants and Mian Aziz‑ud‑Din, filed reply on behalf of defendants on 5‑12‑1974. It is also pertinent to note that the defendants on more than one occasion agreed to pay the suit amount provided the interest as well as the costs are waived. This conditional offer was, however, not accepted by the Court and then on 3‑2‑1975 Mian Aziz‑ud‑Din made a statement confessing judgment. This statement was also signed by the counsel. It may be noted that Aziz‑ud‑Din was the Managing Director of the company and throughout the proceedings he has been appearing in the proceedings on his own behalf as well as on behalf of the company. The reply, dated 5‑12‑1974 to the application was filed on behalf of all the defendants under his signatures. This application was also signed by the same counsel who had signed the statement recorded by Court on 3‑2‑1975 The decree was then passed on 3‑2‑1975. It is apparent that the sum of Rs. fifty thousand was remitted by the bank on 6‑1‑1975 as it had not accepted the order. dated 6‑11‑1974. This amount was neither paid pursuant to the decree nor was intended to be adjusted against interest awarded under the decree. The dispute thus raised by the petitioners in C.M. No. 6927‑C/78 is neither genuine nor stands supported by any valid material. This was yet another device of the petitioners to frustrate the recovery of decretal amount. The objections raised in the applications moved before the learned Executing Court and then in the Memo of Revision Petition stood waived by moving the civil miscellaneous petitions referred to above.

5. In view of the circumstances and the reasons given above the petitioners are neither entitled to seek the relief prayed for nor on merits, a case is made out for interference in exercise of discretionary revisional jurisdiction. The revision petition is, therefore, dismissed with costs.

H. B. T./682/L. Revision petition dismissed.

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