ANWAR ZAHEER JAMALI, J.---This appeal under section 22 of the Financial Institutions (Recovery of Finances) Ordinance, 2001, has been preferred against the order dated 18-10-2004, passed by the Banking Court No.II at Karachi in Execution Application No.64 of 2002, whereby it had disposed of an application under section 151, C.P.C. Moved by respondents Nos.1 and 2 with the observation that the recovery of decretal amount in respect of respondent No.2 will be enforceable only to the extent of mortgage amount.
2. The relevant facts leading to this litigation are tint suit No.1394 of 1997 instituted by the appellant bank for recovery of Rs.34/21,060,16 with additional sum of Rs.52,80,845 as liquidated damages was decreed ex parte by the Banking Court. Vide its judgment dated 12-5-1998, followed by decree dated 4-6-1998.
3. During the execution proceedings before the Banking Court for execution of such judgment and decree, on 9-5-2004 the respondent No.2 had moved an application under section 151, C.P.C.
Before the Executing Court, seeking clarification of her limited liability in respect of decree under execution to the extent of Rs.6,23,620, for which sum she had mortgaged her property. After submission of reply to such application by the appellant, the learned Banking Court passed the impugned order whereby virtually it modified the judgment and decree under execution in a manner that the liability of respondent No.2 was curtailed to the extent of liability created through mortgage deed executed by her.
4. Mr. Rizwan Ahmed Siddiqui, learned counsel for appellant, vehemently contended that the blunder corn n ted by the Banking Court in passing the impugned order s that it failed to realize the limited power and jurisdiction of the Executing Court that it cannot go behind the judgment and decree even if it is illegal or erroneous. To fortify his submission, he strongly placed reliance upon the c se of Sardar Ahmed Yar Khan Jogezai and 2 others v. Province of Baluchistan 2002 SCMR 122, wherein the Honourable Supreme Court of Pakistan, while dealing with the question of powers of the Executing Court and observed as under:- "The said substitution of drastic amendment could not have been made by the learned executing Court which in facts amounts to a futile attempt to frustrate the object of judgment and decree dated 4-11-1985 which had already attained finality and thus the order dated 13-4-1989 passed by the learned District Judge Loralai (executing Court) is arbitrary capricious and coram non judice. It worth mentioning that executing Court notgo beyond the decree. It is well settled by now that when decree passed attained finality it had got to be executed even if it was erroneously passed. Executing Court cannot rectify any mistake in decree which would tantamount to going behind decree." Messrs Haji Ahmed & Co. v. Muhammad Siddiqui and others PLD 1965 Karachi 293: Ghanaya Lal and others v. Punjab National Bank Ltd., Lahore AIR 1932 Lahore 534 and Abdul Khaliq v. Haji PLD 1983 Lahore 445. A similar proposition was discussed in case titled Taponmal v. Kundomal Gangaram AIR 1960 Supreme Court 388 that "the Executing Court could not go behind the decree and given relief to the plaintiff which was expressly denied to him in the suit.
A Court executing a decree cannot go behind the decree it must take the decree as it stand for the decree is binding and conclusive between the parties to the suit."
5. He also placed reliance upon two other cases reported as Reference No.1 of 1988 made by the President of Pakistan under Article 186 of the Constitution of Islamic Republic of Pakistan PLD 1989 Supreme Court 75 and Province of Punjab v. Burewala Textile Mills Ltd. 2001 SCMR 396.
6. On the , other hand, Mr. Saleem Thapdawala, learned counsel for respondents Nos.1 and 2 made reference of three unreported judgments of this Court dated 21-5-2004 in 1st Appeal No.76 of 2001 dated 25-4-2001 in Suit No.B-84 of 2001 and dated 20-2-2003 in 1st Appeal No.38 of 2002 to show that it is now well settled law that the liability of the mortgagor is only limited to the extent of mortgage created by him and not to the extent of actual liability of the borrower. He also made reference to three other judgments reported as 2003 SCMR 318; 2001 SCMR 1001 and 1997 SCMR 209 to highlight the principles that the technicalities of law will not create hurdles in the way of substantial justice: Courts are required to administer justice in accordance with the provisions of law; and party should not made be to suffer on account of an act or omission on the part of Court or other functionaries. Relying on these judgments, learned counsel contended that the Executing Court, while passing the impugned order had attempted to provide justice to the respondent No.2, who was proceeded ex parte in the suit and had also not opted to prefer any appeal against such ex parte judgment and decree, which thus attained finality.
7. We have carefully considered the arguments advanced by the learned counsel and perused the case record which reveals that after passing of ex parte judgment and decree against the respondents Nos. I and 2 they had not preferred any appeal against such judgment and decree which had thus attained finality. Indeed the submission of Mr. Saleem Thapdawala that the liability of mortgagor is only to the extent of mortgage created by him, is correct but the moot point for consideration before us in the present appeal is whether the. Executing Court could undertake the exercise of scrutinizing the legality or otherwise of the judgment/decree under execution, as has been done .In the instant case. A simple answer to this proposition can be gathered from the observations of the Honourable Supreme Court of Pakistan in the case of Sardar Ahmad Yar Khan Jogezai (supra). Mr. Saleem Thapdawala, when confronted with this position, was unable to show any provision of law, which could give legal cover or justify passing of impugned order in favour of respondents Nos.1 and 2 by the Executing Court. The proposition of law propounded in the three judgments of the Honourable supreme Court referred by Mr. Saleem Thapdawala have also no cavil but fact remains that under the garb of substantial justice, no Court can be allowed to exceed its jurisdiction or viplate the settled legal principle as regards the jurisdiction of the Executing Court, that it cannot go behind the judgment and decree under execution. This being the position, we have no option but to set aside the impugned order ordered accordingly.
8. Before parting with this orders we may observe that while going through the reply/objections to the application under section 151, C.P.C. Filed by the appellant bank. We have noticed that on principle the appellant have candidly, conceded to the limited liability of respondent No.2 in respect of decree under execution in para.4 of their reply which reads as under:-- "4. That even in the Memorandum of Deposit of title deed, it is clearly mentioned that the mortgagor will pay Rs.623,620 plus all Service Charges Costs Expenses Charges Commission etc."
9. We expect that the appellant, being a financial institution realizing correct legal position will honour its commitment as per the above noted stand taken by then before the Executing Court.