ORDER This appeal is directed against the order dated25.11.2004 whereby the application filed by the appellant under section 47 of the CPC was dismissed by the Banking Court.
2. Brief facts leading to the filing of this appeal that respondent No. 1 filed a suit against the appellant and respondent No. 2, which was decreed against the defendants. Aggrieved the appellant filed an appeal before this Court, which was heard along with other connected cases and decided vide the judgment dated 18.9.2003. During the course of the execution proceedings before the Banking Court, the appellant filed an application under section 47 CPC raising the grievance that in view of the terms and conditions agreed inter se the parties for the grant of finance facility, the balance amount due under the decree was recoverable from the respondent No. 2. it was further contended that the executing Court has not calculated the amount and fixed the liability of the appellant. The said application was dismissed by the Banking Court vide the impugned order.
3. Learned counsel for the parties have been heard and the record appended with this appeal has also been perused.
4. The liability of the appellant as well as that of respondent No. 2 was finally adjudicated upon by this Court vide its judgment dated 18.9.2003, in the following terms:- "In the light of above, the submission made by the learned counsel for the LDA is repelled and it is held that, the LDA is the guarantor and is jointly and severally liable for the repayment of the amount to the respondent Bank.
Further the question, raised by Mr. Zahid Hamid, Advocate that according to the prayer in the plaint, the relief has been sought for the purposes of realization of the decreetal amount by the sale of the mortgaged property, but instead of granting this as a primary relief, the Banking Court has held the LDA jointly and severally liable with the other appellants, which decree is illegal and unlawful, suffice it to say that, obviously when the property is mortgaged for the security of a loan, first the mortgaged has to be sold for the satisfaction of the decree, and if, the decree is not satisfied only then, the decree for joint and several liability against the principal borrower and the guarantor can be passed. Resultantly, we modify the judgment and decree in the following manner:-
(i) That the decree against the appellants is though/joint and several, but it shall first be satisfied from the sale of the mortgaged property and if, it is not fully satisfied, only then the appellants i.e. The individuals and the LDA, shall be jointly and severally responsible for the satisfaction of the decree.
(ii) That the respondent Bank was only entitled to charge the mark-up till 3.6.1996 and any mark up claimed and awarded by the learned banking Court is illegal and unlawful. However, in view of the provisions of section 17 read with section 3 of the Financial Institutions (Recovery of Finances)
Ordinance, If 2001, the respondent-Bank is entitled to the costs of fund from the date of default of the finance till the realization of the amount from both the set of appellants, which shall be worked out by the learned Executing Court in accordance with law at the time of execution of the decree.
(iii) That the interest in each of the case, which is beyond the period of the contract, till the institution of the suits, and pendent life, if awarded in the impugned decree, shall also be specifically worked out and excluded from the decree by the learned executing Court at the time of executing the decree.
With the above modification and for whatever has been discussed in the judgment, these appeals have no force and are hereby dismissed with costs throughout."
5. The executing Court cannot go behind the decree. The appellant cannot raise issues, on the basis of the original transaction which were adjudicated upon by way of the aforesaid judgment.
The only exercise now required to be undertaken is the calculation of the amount due from the P.C.T.L.R appellant in terms of the aforesaid judgment, in pursuance of order of this Court the respondent-Bank has submitted a statement evidencing the amount due from the appellant in terms of aforesaid judgment of this Court. The appellant may raise any objection thereto before the executing Court obviously such objections would be limited to the deviation, if any, from the judgment dated 18.9.2003 of this Court. The ' objections, if any, should be decided by the executing Court there by determining the amount due from the appellant before proceedings further in the matter. The appeal is dismissed with the above observations. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.