' MAULVI ANWARUL HAQ, J.---Although the contesting respondent No,2 has filed a memo. Of objections to this writ petition yet the facts as stated therein do not stand controverted. In the first instance, the respondent No,3 availed finance facility from respondent No,2 and a charge of Rs,2,30,00,000 was created on 8-10-1995 over the assets of said respondent No,3. Thereafter, respondent No,3 applied to petitioner No,1 as a lead Bank of the petitioner's consortium. The property offered by way of security was the same i,e, a property whereupon a charge stood created in favour of respondent No,2. No Objection Certificates were issued by the respondent No,2 and several charges as detailed in para.2 of the writ petition were created over the said assets vide charge certificates dated 18-7-1991 and 7-1-1992. Respondent No,3 defaulted. A suit filed by respondent No,2 for recovery of Rs,4,05,78,655 on 8-10-1995 was decreed on 8-10-1996 by a learned Judge, Banking Court-III, Multan, while a suit filed by the petitioner for recovery of Rs,2,77,95,136 was filed on 28-9-1997 and decreed against the respondent No,3 on 4-2-1998 by a learned Judge, Banking Court-I, Multan. The respondent No,2 filed an application for execution on 17-12-1996 while the petitioner filed a similar application on 10-7-1998 in the said Courts respectively. While the matter was so pending in the two Executing Courts, the respondent No,2 filed T.A. No,129-C/99 in this Court. Vide order dated 14-10-1999, the execution petition by respondent No,2 was transferred to the Court of learned Judge, Banking Court-I, Multan. Upon receipt of the records, the learned Judge, Banking Court-I, Multan, started proceeding with the execution petitions in a consolidated manner and the proceedings were recorded in the execution petition filed by respondent No,2. On the application filed by respondent No,2, a Court auctioneer was appointed for the sale of the assets of the said judgment debtor in both the execution petitions. This order was passed on 7-3- 2000. The said Court auctioneer conducted the proceedings and ultimately the assets of the judgment-debtor were auctioned in the sum of Rs,1,06,25,000. A report of the auction proceedings dated 10-2-2002 was filed. The petitioner as well as one Muhammad Munawar filed objections against the said sale which was set aside by the Executing Court on 3-5-2002. The learned Executing Court itself conducted the auction. Vide report dated 7-5-2002 the price obtained was Rs, 1,40,50,000. The sale was confirmed on 7-6-2002 and a sale certificate was issued to the successful purchaser to the effect that the said assets have been sold in execution of both the said decrees. On 4-7-2002 the respondent No,2 filed an application praying that the said entire amount be paid to it while on 28-6-2002 the petitioner filed an application for ratable distribution of the said proceeds amongst the decree-holders. The learned Judge, Banking Court-I, Multan, heard both the applications together and vide order dated 26-3-2003 allowed the application filed by the respondent No,2 but dismissed the application filed by the petitioner.
2. Learned counsel for the petitioner contend that the impugned order has been passed in disregard of the law contained in section 73, C.P.C. According to them, there is no requirement as such that the application for ratable distribution ought to be filed before the receipt of assets, what is required is that application for execution must be pending on behalf of two or more decree- holders against the same judgment-debtor. Learned counsel also vehemently urge that the order has been passed without noting the facts glaring on the face of record and the proceedings conducted by the learned Executing Court jointly in both the execution petitions. Learned counsel for the contesting respondent, on the other hand, relies on the cases of Gobinda Sankar Dikshit Firm v. Mst. Shah Mahmud Palwan and another PLD 1959 Dacca 939 and Vishnubhotla Ramayya v. Sajja Namayya and others AIR 1943 Madras 165 to urge that the requirement of law is that an application specifically praying for the ratable distribution ought to be filed before the receipt of assets in Court. Learned counsel vehemently urges that the writ petition is not maintainable in view of the remedy of appeal provided in section 22 of the Financial Institutions (Recovery of Finances)
Ordinance, 2001. He relies on the cases of Messrs Unicorn Enterprises v. Banking Court No,5, City Court Building, Karachi and 2 others 2004 CLD 1452; M.A. Kareem lqbal v. Presiding Officer, Banking Court No,III and 4 others 2003 CLD 1447 and Chief Executive and 3 others v. Muslim Commercial Bank Ltd. Through Chief Manager/Manager, Shadman Colony Branch, Lahore and another 2002 CLD 1407. Learned counsel for the petitioner rejoins to state that an order under section 73, C.P.C. Is not appealable and even if upon a reading of the said provision of Ordinance, 2001 an appeal is found to be competent, the writ petition was filed within time available for appeal and as such prays that the writ petition be converted into an appeal and decided as such.
3. We have already narrated above the admitted facts of this case. There is no manner of doubt in our mind that both the said decree-holders had made applications to the Court for execution of the decrees for payment of money passed in their favour respectively against the same judgment- debtor and not obtained satisfaction thereof when the assets of the said judgment-debtor came to be held by the said Court. Now upon. a reading of the said judgments of the Dacca and Madras High Courts being cited by the learned counsel for respondent No,2 one does get a prima facie impression that the observations made are that an application for ratable distribution of the assets has to be filed before the assets are received. However, we find the provisions of section 73, C.P.C.
Itself to be absolutely unambiguous as to what are the pre-conditions for enabling a decree- holder to ratable distribution of the said assets. We deem it appropriate to reproduce here the said section 73, C.P.C.:-- "73. Proceeds of execution-sale to be ratably distributed among decree-holders:--
(1) Where assets are held by a Court and more persons than one have before the receipt of such assets, made application to the Court for the execution of decrees for the payment of money passed against the same judgment-debtor and have not obtained satisfaction thereof, the assets, after deducting the costs of realization, shall be ratably distributed among all such persons:-- ' Provided as follows:--
(a) Where any property is sold subject to mortgage or charge, the mortgagee or incumbrancer shall not be entitled to share in any surplus arising from such sale;'
(b) Where any property liable to be sold in execution of a decree is subject to a mortgage or charge, the Court may, with the consent of the mortgagee or incumbrancer, order that- the property be sold free from the mortgage or charge, giving to the mortgagee or incumbrancer the same interest in the proceeds of the sale as he had in the property sold:
(c) Where any immovable property is sold in execution of a decree ordering its sale for the discharge of an encumbrance thereon, the proceeds of sale shall be applied:-- ' First, in defraying the, expenses of the sale; ' Secondly, in discharging the amount due under the decree; ' Thirdly, in discharging the interest and principal monies due on subsequent encumbrances (if any); and ' Fourthly, ratably among the holders of decrees for the payment of money against the judgment- debtor, who have prior to the sale of the property, applied to the Court which passed the decree ordering such sale for execution of such decrees, and have not obtained satisfaction thereof.
(2) Where all or any of the assets liable to be ratably distributed under this section are paid to a person not entitled to receive the same, any person so entitled may sue such person to compel him to refund the assets."
' It will be seen that the word "application" had been used in the main subsection (1) as also clause fourthly to proviso (c) to subsection (1) of section 73, C.P.C. And it has been clearly stated that the application is to be an application for the execution of decree for the payment of money. The only other condition is that the said applicant has not obtained satisfaction of the decree passed in its favour.
4. Now applying the said provision of law as read on its face to the admitted facts of the present case, both the contestants were holding decrees for payment of money against the said judgment-debtor which remained unsatisfied. The assets were received as a result of sale of property of the judgment-debtor on the joint application of both the decree-holders and needless to state that when these assets are received in Court, both the execution petitions were pending.
This being so, the said assets became liable to be ratably distributed amongst the said decree- holders in accordance with the said provision of law.
5. Now so far as the said main objection of the learned counsel for the respondent No,2 as to the competency of the writ petition is concerned, we have gone through the judgments cited by him.
Now although under the Code of Civil Procedure itself an order passed under section 73, C.P.C. Is not appealalbe being a dispute between rival decree-holders regarding ratable distribution.
However, upon the wording of section 22 of the Financial Institutions (Recovery of Finances)
Ordinance, 2001, we find that the impugned order is a final order within the meaning of the said provisions of law and would be appealable to this Court.
6. The impugned order was passed on 26-3-2003 as per copy attached with this writ petition. It was applied for on 28-3-2003. It was prepared on 3-6-2003 and was delivered on 4-6-2003. The writ petition was filed in this Court on 25-6-2003. The writ petition, therefore, was filed in this Court within the period of 30 days provided in the said section 22 for filing of an appeal. Sufficient court- fee stands paid on the memo. Of the writ petition which does cover the court-fee payable in the matter of an appeal against an order before this Court. We, therefore, do convert this writ petition into a n F.A.O. Office to number it accordingly.
7. For reasons recorded above, the writ petition since converted into an F.A.O. Is allowed and the impugned order dated 26-3-2003 passed by the learned Judge, Banking Court-I, Multan, is set aside. The result would be that the assets received as a result of sale of the property of the judgment-debtor and being held by the Executing Court shall be ratably distributed amongst the said decree-holders. No orders as to costs.