' C.M.A. No.5858 of 2001.
' The plaintiff filed this application under sections 151 and 152, C.P.C. For seeking an order amending the decree dated 16-9-2000 and granting the relief as per prayer clause (ii) of the plaint. The application is supported by the affidavit of one Zakir Zaidi, the Attorney of the plaintiff and Mr. Mohsin Tayabali one of the counsel for the plaintiff.
2. The suit had been filed by the plaintiff for recovery of Rs.470,004,779 under the Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act, 1997 praying therein for judgment and decree jointly and severally against the defendants in favour of the plaintiff as follows: "(i) in the sum of Rs.470,004,779 with up to date mark-up in respect of the outstanding amount in respect of the various component facilities comprising such consolidated sum, as specified in paragraph 22 above, at the contractual rate or at such higher rate applicable to each fcility;
(ii) for the attachment and sale of the Mortgaged Properties, the pledged Goods and the Hypothecated Property as described in paragraphs 13 and 14 of the Plaint;
(iii) costs of the suit;
(iv) any other relief that the Honourable Court may deem fit and proper in the circumstances of the case."
3. On 16-9-2000 when the defendant's application C.M.A. No.13850 of 2000 under section 10 of the Act 1997 was fixed for hearing by consent of the counsel for the parties suit was disposed of and the following decree, hereinafter referred to as "the decree" was passed:-- "16-9-2000.
' Mr. Moshin Tayyab Ali, Advocate for plaintiff along with Mr. Kausar Ali and Mr. Zakir Zaidi, Senior Manager Credit and Incharge Recovery Department.
' Mr. Hamid Khan, Advocate for defendant No.1 along with Mr. Abid Malik General Manager Finance of defendant No. 1.
' Mr. Munir A. Malik, Advocate for Defendants Nos.2 and 3.
' By consent, the plaintiff withdraws the suit against defendant No.2 with permission to file a fresh suit. .
(2) The suit is decreed against defendants Nos.1 and 3 for the sum of Rs.422 Millions with markup at 15% from the date of the suit with no order as to costs.
(3) The decree in the suit will not be executed until disposal of the Suit No.375 of 2000.
(4) The decree against the defendant No.3 shall not be executed against him until the plaintiff has exhausted its execution remedies against the defendant No. 1.
(5) The decree in this suit shall not operate as res judicata in Suit No.375 of 2000 of any issue raised or could have been raised in Suit No.93 of 2000."
4. A perusal of the consented decree shows that no relief as to the mortgage properties was sought by the plaintiff. After the decree was passed the plaintiff on its basis filed a suit No.B-15 of 2001 and prayed for declaration and injunction and for preparation of an inventory of the fittings, fixtures, furniture, moveable goods and machinery lying and being at factory premises District Kasur. The defendant moved an application C.M.A. No.1690 of 2001 under Order VII, rule 11, C.P.C. On the ground that the decree in Suit No.93 of 2000 was a simple money decree and the plaintiff had no right to any relief on the basis of the mortgage and pledge of the properties. It was at this stage, the plaintiffs realized that there has been an un-intentional error and omission in the decree.
Hence this application.
5. The defendant No.3 and director of the defendant No.1 filed the counter-affidavit whereas the attorney of the plaintiff filed the rejoinder and filed therewith annexures 'A' and B', the two letters exchanged between Mr. Mohsin Tayyabali and Mr. Muneer A. Malik Advocates who appeared for the plaintiff and the defendant respectively at the time decree was passed.
6. Mr. Razvi, Advocate, appeared for the decree-holder/plaintiff and contended that the plaintiff at no point of time consented to the simple money decree and never gave up the prayer for a decree on the basis of mortgage as is being now pleaded by the judgmentdebtor/defendant. He stated that the decree-holder/plaintiff never gave up their right to the mortgage properties nor consciously or intentionally agreed to a simple money 'decree. According to him this is an unintentional omission on the part of the Court, which is to be corrected under sections 151 and 152, C.P.C. Mr. Rizvi apprehends that if the aforesaid modification is not allowed the defendants are likely to create third party interest in the mortgage properties and the decree will be reduced to a paper decree. He, however, admits that it is an equitable mortgage and the original documents of the properties are in custody and possession of the decree-holder/plaintiff. He contended that in spite of this the defendants are consistently emphasizing that the said properties are no more subject-matter of the decree and the defendants are at liberty to deal with the same according to law.
7. Mr. Mushtaq A. Memon, learned counsel for the judgment debtor/defendant contended that it is a compromise decree and had been agreed after consultation and negotiation between the parties; it cannot be said that there had been any omission on the part of the Court to that effect.
He contended that a compromise decree cannot be modified or changed except by consent of all the parties thereto. He stated that the original documents of the properties are with the decreeholder/plaintiff and the apprehension of the decree-holder/plaintiff that the judgment debtor/defendant are likely to create third party interest is unfounded. He, however, contended that by virtue of decree the defendants are at liberty to deal with the said properties according to law.
8. While considering the contentions of the two sides the provisions of section 152 were examined. It is found that the scope of 5.152 is limited to the reasons for corrections of the decree mentioned therein. In the present case no reason as mentioned in section 152, C.P.C. Can be invoked and the decree does not call for any correction as envisaged in section supra. The plaintiff apparently remained satisfied with the decree till they were confronted by the defendants in Suit No.375 of 2000. If that had not been the case, they would have approached the Court immediately. In this case, the decree was passed on 16-9-2000 and the present application was moved after about 11 months. In case the Court passed an illegal decree, the decreeholder/plaintiff had a right of appeal, which they had not availed. In these circumstances the application is not maintainable and therefore, dismissed.
C.M.As. Nos.6679 of 2001 and 3960 of 2002:
9. These two applications have been moved by the plaintiff under Order XXI, rule 54, C.P.C. Read with section 19 of the Financial Institution (Recovery of Finances) Ordinance, 2001 read with section 151, C.P.C. And under Order 39, rules 2 read with sections 151 and 94(e), C.P.C. Read with section 19(1) ibid respectively. The first application is seeking an order of the attachment of the immovable properties of the defendant No.
1. By the second application the decreeholder/plaintiff is seeking an order prohibiting the defendant No.1, their Directors, members, agents etc., from conveying the said mortgage properties. In both these applications it is alleged that the judgmentdebtor/defendant is treating the decree as simple money decree; and the decree is not executable till a decree in suit No.375 of 2000 filed by the defendants is passed; the defendants taking advantage of the situation are likely to create third party interest in the properties and that will defeat the decree. For the defendant it is contended that though they are taking the decree as simple money decree but they are not intending to create any third party interest more particularly for the reason that the original documents are in custody and possession of the plaintiff and secondly the mortgage is registered with the Registrar of the Joint Stock Companies. It is, however, contended that since the said decree is a simple money decree the defendants are at liberty to deal with the subject properties in accordance with law. In other words the defendants are reserving their right to dispose of the subject properties as according to them they are not bound by the decree.
10. Heard the counsel and examined their contentions. The Act of 1997 has been repealed and replaced by Financial Institutions (Recovery of Finances) Ordinance, 2001. In the given circumstances, the provisions of Ordinance 2001 are applicable to this case At present subsection
(2) of section 23 of the Ordinance 2001 is relevant which is reproduced as under:-- "S.
23. Restriction on transfer of assets and properties: (1)
(2) After pronouncement of judgment and decree by the Banking Court, including an interim decree under section 11, no judgment-debtor shall without the prior written permission of the Banking Court transfer, alienate, encumber or part with possession of any assets or properties and any such transfer, alienation, encumbrance or other disposition by a judgment-debtor in violation of this subsection shall be void and of no legal effect."
(3) An examination of section 23 of the Ordinance, 2001 reveals that subsection (1) along with its two provisos are applicable after publication of summons under section 9(5), while subsection (2) will come into operation after the pronouncement of judgment and decree by the Banking Court.
This subsection (2) will also apply when an interim decree under section 11 is passed. It binds all the judgment-debtors for transferring, alienating, encumbering or to part with possession of any assets or property without prior written permission of the Banking Court. Any transfer, alienation and encumbrance or other disposition of assets or property by a judgment-debtor in violation of this subsection is to be treated as void and of no legal effect. This provision is fully applicable on all properties and assets of a judgment-debtor irrespective of the fact, whether it is mortgaged property or not. This section 23(2) of the Ordinance, 2001 will also apply on money decree. Perhaps, no better protection than that provided by section 23(2) of the Ordinance, 2001 can be provided to the decree-holder in the circumstances of the case. Suffice to observe that the provisions of section 23(2) of the Ordinance, 2001 fully protects the rights of plaintiff/decree-holder"to get the consent decree executed as per terms and their apprehension that the decree will be frustrated or will become in-executable is misconceived by provision of section 23(2) of the Ordinance, 2001. No order, therefore, under the provisions in which the applications are required. These applications disposed of accordingly.
11. C.M.A. No.8115 of 2001 has become infructous and is also disposed of.