MIAN HAMID FAROOQ, J.-Briefly stated the facts, as discernible from the available record, are that on 1-10-81, Muhammad Hussain son of Fahd Bakhsh (deceased), the father of the petitioner, availed financial facility, for a sum of Rs. 50,000/-, from the respondent-corporation which was secured through the mortgage of plot, effected by Mutation No.2351 dated 17-02-81, however, the father of the petitioner died on 8-6-84, without liquidating his liabilities. The petitioner previously filed the Constitutional Petition (W.P No.5038 of 96), before this Court, and the same was disposed of with certain observations. Subsequently the petitioner, as one of the legal heirs of the deceased, was called upon by the respondent-corporation through the issuance of demand notice to liquidate the outstanding liability in the account of his deceased father. Faced with the coercive measures adopted by the corporation, the petitioner, .Statedly, deposited the total amount of Rs.
50,000/- with the respondent-corporation. The respondent- corporation, feeling dissatisfied, again issued a notice dated 16-12-96 to petitioner, thereby demanding additional amount of Rs. 67,576/-, otherwise it was threatened that the petitioner will be arrested, ln the said backdrop, the petitioner filed the present Constitutional petition, thereby challenging the aforesaid notice dated 16-12-96 and all subsequent proceedings.
2. Petitioner is present in person and states that his learned counsel is not available. Office report shows that notices were issued to both the parties/counsel and the presumption is that the same were served upon the said persons. Despite service, none has entered appearance on behalf of the respondents, hence they are proceeded exparte.
3. Admitted facts of the case are that deceased father of the petitioner availed financial facility, on the basis of assignment and partnership, from the respondent- corporation. The petitioner did not avail any financial facility himself from the respondent-corporation and that after the death of petitioner s father, the respondent-corporation by adopting coercive measures recovered a sum of R.50,000/- from the petitioner..To my mind, the questions, involved in the present case, are: (i) as to whether the outstanding amount, in the amount of the deceased father of the petitioner, could be recovered from the petitioner, as one of his legal heirs, (ii) whether for the recovery of the said amount, the respondent-corporation is allowed, under the law, to adopt coercive measures against the petitioner and(iii) whether the action of the respondent-corporation of recovering the amount of Rs.50,000/- and its further demand from the petitioner is leally justified.
5. The Hon'ble Supreme Court of Pakistan in a case reported as Agricultural Development Bank of Pakistan Vs. Sanaullah Khan and others (1988 PLD SC 67), while dilating upon the identical controversies, has held as under:- "From this a general principal has arisen that a pecuniary obligation arising out of the contract by a deceased party will bind his legal representative to the extent of the estate of the deceased coming to his hands. This principle has been statutorily recognized in Section 50 of the Civil Procedure Code which lays down the extent to which a decree passed against judgment-debtor how dies before the decree has been fully satisfied, against his legal representative.
Subsection (2) of Section 50 provides as under;- "Where the decree is executed against such legal extent of the property of the deceased which has come to his hands and has no been duly disposed of; and, for the purpose of ascertaining such liability, the Court executing the decree may, of its own motion or on the application of the decree- holder, compel such legal representative to produce such accounts as it thinks fit."
Similarly in the case of money decree the liability of the legal representatives of a party who has died after the passing of the decree extends under Section 52 of the C.P.C, to such property of the deceased as it proved to have come into their possession or to the extent of the property of the deceased in respect of which such legal representatives have failed to satisfy the Court thaMhey have duly applied such property of the deceased which came to heir possession, ln this context of the law, without proving that any property has come into the hands of the son and to what extent in value compared with the pecuniary liability of the deceased-father, it cannot be recovered from the son. This aspect was completely overlooked by the Trial Court and the first Appellate Court and no such inquiry was made or any proof furnished by the appellant-Bank so as to make respondent No.1 liable for the debts of his deceased father." lt is thus clear from the principles of law laid down in the afornoted judgment that pecuniary obligation undertaken by the deceased would bind his legal-representative to the extent of the estate of the deceased, which they inherited; they are not personally liable to liquidate the liabilities of their predecessor-in-interest and that powers of adoption coercive measures cannot be invoked against a person, who did not secure the loan himself.
7. Placing the principles laid down in the aforesaid judgment of Agricultural Development Bank of Pakistan Vs. Sanaullah Khan and others (1988 PLD SC 67) in juxta position with the fact of the present case I am of the view that the petitioner is not personally liable to liquidate the pecuniary liabilities/obligations undertaken by his deceased father, it will bind him only to the extent of estate which he has inherited from his father and as the petitioner did not obtain financial facility himself from the respondent- corporation therefore, no coercive measures could be adopted against the petitioner for the recovery of the outstanding amounts in the account of the deceased-father of the petitioner. Needless to add that the outstanding amount, of course, can be recovered from the estate left by the deceased, which came in the hands of his legal representatives, including the petitioner, and from the mortgaged property. The record of the case does not indicate as to whether the respondent-corporation has undertaken any exercise for the sale of the mortgaged plot or not.
8. I have examined the written reply, filed by the respondent-corporation to this Constitutional petition, and find that one of the pleas raised by the corporation is that as the petitioner is the guarantor of his father, therefore, outstanding amount can be recovered from his person and property. However, the respondent-corporation failed to bring on record any letter of guarantee, executed by the petitioner, in order to show that' he stood guarantor to liquidate the financial facility availed by the petitioner's father. Respondent's corporation appears to be relying upon the affidavit, reportedly signed by the petitioner, wherein, it has been stated that the petitioner is the guarantor. Even the said affidavit is of no help to the respondent on the grounds that the execution whereof has been denied by the petitioner, it has not been proved in accordance with law and that by simply executing affidavit, a person does not become guarantor unless he has executed the letter of guarantee within the contemplation of law of guarantee. On the basis so simpliciter affidavit, it can neither be urged nor held that the petitioner stood guarantor for liquidating the liabilities outstanding in the account of his father.
9. From the above, it may not be construed that the respondent-corporation is remediless and cannot recover its dues outstanding in the account of the deceased. Of course even after the death of the deceased loanee, law permits the respondent-corporation to recover the outstanding amount from the estate of the deceased and the sale of the mortgaged property, lt is not understandable as to why the respondent-corporation did not initiate any proceedings for the recovery of the outstanding amount from the sale of the mortgaged plot, which, even according to the petitioner, was security in the hands of the Corporation. Still the corporation is within its rights to recover the outstanding amount by resorting to the legal remedies available to it, qua the sale for the plot.
10. Next question would be as what is the fate of the amount of Rs.50,000/-, which was recovered by the respondent-corporation from the petitioner under the threat of arrest and other coercive measures. Obviously, the said amount could not have been recovered from the petitioner, as in view of "the. Above findings he was not personally liable to pay the demanded amount to the corporation and the amount "due" in the account of deceased-father of the petitioner could only be recovered from the mortgaged property or/and from the estate left by the deceased, ln view whereof, I am constrained to hold that the amount of Rs.50,000/- was illegally recovered from the petitioner under the threat of arrest and adoption of other coercive measures, thus; he is held entitled to recover the said amount from the respondent-corporation, which is bound to refund the said amount to the petitioner. The petitioner may approach the competent authority for the refund of the said amount of Rs.50,000/-
11. Upshot of the above discussion is that the present petition is allowed and the impugned notice dated 16-12-96 and all the subsequent proceedings and actions, taken by the respondent- corporation on the basis of said notice^ are declared, to be illegal, without lawful authority and without jurisdiction. Respondents No.1 and 2 are directed to refund the amount Rs. 50,000/- to the petitioner within a period of one month from today. No order as to costs.
Let a copy of this petition be immediately transmitted to the# District Manager House Buildings Finance Corporation,, Sahiwal.