' GHULAM NABI SOOMRO, J.---This is an appeal under section 21 of the Companies (Recovery. Of Loans, Advances, Credits and. Finances) Act, 1997 whereby the two orders dated 11-12-2000 and 22- 12-2000 passed by the Executing Court in execution application No,231 of 2000 are impugned.
2. Learned counsel for the appellant after hearing the objection of the counsel for the respondent as to the maintainability of the appeal against the two separate orders have agreed to press appeal against the order dated 11-12-2000 only. Both learned counsel agreed that the entire appeal be disposed of at the katcha peshi stage. The appellant prayed as under:--
(i) To set aside the impugned orders dated 11-12-2000 and 22-12-2000 passed by a learned Single Judge in Execution No,231 of 2000.
' Without prejudice to the above it is further prayed that the appointment of Receiver and his authority prepare inventory of machines and other valuables be suspended/set aside till the realization of money as a result of disposal of two moveable and immovable properties mentioned in columns 12-A and 12-B of the execution application.
(iii) In alternate the interim decree dated 30-3-2000 be reversed/set aside.
(iv) Any other /additional relief or reliefs as this Honourable Court may deem fit and proper I the circumstances of the case.
3. The aforesaid orders in the execution application are in pursuance of the interim decree dated 30-3-2000 No appeal against the interim decree has been preferred. The grievances of the appellant are that the property. Mentioned in para.2 of the order dated 11-1-2001 and in Column 12- C of the execution application is not mortgaged with the decree-holders and that due to misstatement before the Executing Court on behalf of the decree-holder that the said property is aIso mortgaged, the Executing Court appointed Official Assignee as Commissioner to execute the decree. It is urged that had there been no misstatement the trial Court would have not appointed the Official Assignee as a Commissioner ih respect of the said property; and that the value of other properties. Mentioned in Columns 12-A and 12-B of the execution application are sufficient to satisfy the decretal amount and therefore, the property in Column 12-C should not be subjected, to the execution and put for sale. Reliance is placed on the provisions of Order XXI, rule 64, C.P.C. And on the cases of Takkaseela Pedda Subba Reddi v. Pujari Padmavathamma AIR 1977 Supreme Court 1789; P. Samasundaram v. Ponnusamy and others AIR 1992 Madras 71 and Balu v. Periasami and others AIR 1988 Madras 114. It is further urged that this order was passed without notice to the judgment-debtor. It is also contended that a statement under Order XXI, rule 66, C.P.C. Has also not been filed by the decree-holder along -with the execution application; and that the property mentioned in Column 12-C could not be sold out as there had been no attachment order in respect thereof.
4. It is replied by learned . Counsel for the respondent that the property mentioned in Column12-C is not mortgaged by judgment-debtors and this position was brought before the Executing Court and the same was so recorded in its order dated 11-1-2001. It is contended by him that though the property in Column 12-C is not mortgaged with the decree-holder but there is no prohibition in law that the same cannot be subjected to the execution; and that admittedly the said property is owned by judgment-debtor and therefore, no illegality has been committed to that effect. He contended that a notice was not necessary before passing any order on execution application and he drew attention of the Court to the provision of Order XXI, rule 22, C.P.C. Wherein an execution can be ordered without notice if application is filed within a period of one year of the decree; and that in this case the execution application was filed within a period of one year from the date of decree so notice was not required. Reliance is placed on the cases of Moirangthem Rajedra Singh v. The Manipur Administration and another AIR 1963 Manipur 47 and State Associates v. Messrs Farben Industrial Development 1992 M LD 1007. It is further urged that the value of the properties in Columns 12-A and 12-B of the execution application are not sufficient for the satisfaction of the decretal amount. According to him nearly Rupees one Billion are due and payable by the appellant to the consortium of the banks out of which more than 98 Million plus the mark-up is to be paid by them to the respondent alone; whereas the value of all properties of judgment-debtor are not even sufficient to satisfy the decree of the present respondent. He also offered that let the judgment- debtor bring the best price for other properties and if the decretal amount is satisfied with the proceeds thereof, the properties mentioned in Column 12-C will not be affected. It is further urged that the present appellant have already filed objections/applications before the Executing Court, which are pending adjudication and instead of pursuing the proceedings in the Executing Court they preferred this appeal. It is also contended that there is a serious apprehension that if the order of appointing Commissioner is set aside the properties mentioned in Column 12-A of execution application will be removed by the judgment-debtor and as such the purpose of the decree will be defeated. As to the statement of valuation under Order XXI, rule 66, C.P.C. The counsel for decree- holder submitted that it will be filed before the Executing Court at proper time.
5. After arguments were concluded, an application bearing C.M.A. No,396 of 2001 under rule 9, Chapter III-A Volume-V of Sindh Chief Court Rules (U.S.) was filed enclosing therewith an advertisement sent by the Official Assignee to the newspapers for sale of properties mentioned in Column 12-A of the execution application and lying at Plot No,F-3, Hub River Road, S.I.T.E. Karachi.
Since the matter was fully heard and reserved for disposal therefore, on 23-2-2001 this Court ordered notice and directed the Official Assignee to maintain status quo in respect of the properties mentioned in the aforesaid public notice and the matter was fixed for 16-3-2001.
6. We considered the submissions of the counsel and perused the impugned order dated 11-12- 2000 as well as the order dated 22-12-2000. No illegality is found in the fact that the property mentioned in Column 12-C which is owned by the judgment-debtor but was not mortgaged with the bank has been subjected to execution. No law to that effect has been cited on behalf of the judgment-debtor. It appears that the decree-holder is at liberty to bring any or all properties of the judgment-debtor in the execution application. It is however, up to the Court to deride under Order XXI, rule 64, C.P.C. As to what properties would be subjected to execution for the satisfaction of the decree. As to the notice to judgment-debtor on the execution application, the Court under Order XXI, rule 22, C.P.C. Was not legally bound to issue a notice but it depends upon the facts and circumstances whether a notice was necessary or not. In this case though the notice was not issued initially but the subsequent orders show that the Executing Court was already conscious of the fact that substantial points are involved in the matter in respect of the properties attached and to he sold and therefore, it provided an opportunity to the judgment-debtor to file rejoinder and place their case. In fact the purpose of service of notice has been served and no prejudice has been caused to the judgment-debtor. As to the attachment of the property, it is being pointed out by the counsel for the respondent that the property mentioned in Column 12-C was already under attachment by order dated 12-9-1999 and therefore, no second attachment was required for further proceedings. This is also an admitted position that the objections of the judgment-debtor are already pending before the Executing Court for final disposal; and that is why the Executing Court by order dated 22-12-2000 modified the order dated 20-12-2000. The Executing Court, however, before passing an order of sale of the property mentioned in Column 12-C should have under Order XXI, rule 64, C.P.C. Been satisfied that the other properties mortgaged by judgment- debtor will not fetch sufficient amount to satisfy the decretal amount. This aspect has not been discussed in the impugned order. This is also admitted that the decree-holders have not filed the statement under Order XXI, rule 66. C.P.C. Giving the approximate value of the properties to be sold.
At the first date of hearing i.e. 5- l -2001 before this Court, the learned counsel for the appellant contended that the properties mentioned in Columns 12-A and 12-B of the execution application are more than sufficient to satisfy the interim decree. Both parties have made claims and counter claims in respect of the value of the mortgaged property mentioned in Columns 12-A and 12-B of the execution application but none have brought before this Court any evidence to show even the approximate value thereof.
7. In view of the above, we dispose of this Special High Court Appeal along with the listed applications to the extent that the properties mentioned in Columns 12-A and 12-B of the application be first put to sale and in case the sale proceeds thereof are not sufficient to satisfy the decretal amount then the proceedings for sale of property mentioned in Column 12-C of the execution application be carried out. The above exercise to be carried out by the Executing Court keeping in view the requirements of Order XXI, rules 64 and 66, C.P.C.