Mian Hamid Farooq, J.--Present appeal by National Bank of Pakistan, under Section 22 of the Financial Institutions (Recovery of Finances) Ordinance, 2001, proceeds against order dated 29.5.2006, whereby the learned Judge Banking Court dismissed appellant's third execution application.
2. Decree for recovery of Rs. 62,88,470.34/- was passed, on 28.4.2002, against the respondents, together with costs and benefits of Section 17 of Ordinance, XLVI of 2001, by the learned Judge Banking Court, Lahore. It appears that the respondents failed to satisfy the decree, therefore, appellant, on 1.7.2002, filed first execution application, which was dismissed for non-prosecution on 21.4.2004. On 4.1.2005, the appellant bank- filed second execution application, which was resisted by the respondents and ultimately the learned Executing Court, after finding that the decree stood satisfied, dismissed the second execution application, as have borne fruit, vide order dated 20.12.2005. The appellant, although felt aggrieved from the said order, yet instead of challenging the said order before the higher forum, choose to file the review application, on 6.2.2006, but the same was withdrawn on 1.4.2006. The appellant then, on 6.4.2006, filed the third execution application and the learned Judge Banking Court, after finding that order dated 20.12.2005 has attained finality under Section 27 of the Ordinance XLVI of 2001, proceeded to dismiss the, latest execution application, vide impugned order dated 29.5.2006, hence the present appeal.
3. Learned counsel for the appellant contends that the decree was passed alongwith benefits of Section 17 of the Ordinance XLVI of 2001 4nd as the said amount was still recoverable, therefore, third execution application was maintainable and it was illegally dismissed. He further submits that the decree was not completely satisfied, as costs of funds are yet to be recovered from the judgment debtors. He adds that the learned Executing Court cannot go beyond the decree.
4. We have heard the learned counsel and .examined the available record. The second execution application, filed by the appellant bank, was dismissed by the learned Executing Court, when the learned counsel for the decree holder admitted issuance of certificate by Bank's functionary and did not raise the pleas now agitated by the learned counsel. It has been noted by the learned Judge Banking Court, in order dated 20.12.2005, that the learned counsel for the decree holder could not point out any thing to show, that any other amount is due against the judgment debtors.
It would be appropriate to reproduce para 3 of the order dated 20.12.2005, which reads as follows:-- "The decree was passed on 28.5.2002 for a sum of Rs. 52,88,470/-and Rs. 67,174/- have been shown as costs in the execution application. The judgment Debtor No. 2/petitioner has already deposited Rs. 6.288 Million. This is admitted by the learned counsel for the decree holder and the certificate issued by the Manager Credit of the Decree Holder/Bank dated 14.2.2004 is to that effect. This, shows that the judgment debtor/petitioner has cleared his entire liability and nothing is outstanding against him. During arguments the learned counsel for the decree holder could not point out anything from which it could be known that any other amount is due against the judgment debtor. In the circumstances, the execution application is dismissed as having borne fruit.
It flows from the above that appellant's second execution application was dismissed as having been satisfied and borne fruit. The appellant, admittedly, did not challenge order dated 20.12.2005 before this Court and appeared to be contended, thus, the said order has attained finality.
Although the appellant bank filed a review application, yet the same was withdrawn and the third execution application was filed. To our mind, after the dismissal of the second execution application, on the ground of its satisfaction, vide order dated 20.12.2005, the third execution application was not competent, as rightly held by the learned Judge Banking Court. The execution- application once consigned to record, having been satisfied, and that too in the presence of the decree holder and without any objection, cannot be resurrected under the garb of third execution application. Learned Judge Banking Court has rightly held that order dated 20.12.2005 has attained finality under Section 27 of the Ordinance XLVI therefore, it can neither be reviewed nor another execution application could be enteitained.
5. There is another aspect of the case. the appellant, admittedly, did not challenge order dated 20.12.2005 at the appropriate stage. Strangely enough, it failed to assail the said order even in the present appeal. Answering to a Court question, the learned counsel for the appellant, after thoroughly consulting the record, has conceded that the appellant did not challenge order dated 20.12.2005 in this appeal. It is evident from the conduct of the appellant that it felt satisfied from order dated 20.12.2005 and, thus, did not challenge the same at any point of time. In view of the aforenoted position, the contention of the learned counsel has no substance, as the learned Executing Court has not gone beyond the decree. If any loss has been caused to the appellant bank, it was because of negligence, carelessness and conduct of its functionaries, who could not point out, at the time of passing of order dated 20.12.2005, that costs of funds are still to be recovered or/and also failed to file the appeal against order dated 20.12.2005. The appellant did not choose to assail order dated 20.12.2005 even in the present appeal.
6. In the above perspective, we have examined the impugned order and find that the same is legal and does not require interference by this Court, thus, the same is maintained.
7. In the above backdrop, the present appeal stands dismissed in limine being devoid of merits.