This appeal is directed against the order dated 4-1-2006 whereby the learned Judge of Banking Court No.IV, Lahore, dismissed appellant's miscellaneous application purportedly under Order XXXIV, Rule 5, C.P.C.
2. Brief facts of the case are that respondent No.1 Bank filed a suit for recovery of facility extended to respondent No.2, wherein, present appellants as well as respondents 3 to 14 were also impleaded as defendants. Present appellants, as per contents of the plaint, were impleaded as guarantors and mortgagors. Appellants did not enter appearance nor did they file any reply to the show- cause notice. Suit was eventually decreed against the appellants and respondents 2 to 14.
Execution proceedings commenced, wherein, the appellants filed application stating therein that mortgage deed executed by the appellants in favour of the respondent-Bank was to secure an amount of Rs.1,67,000 only, hence, the property be redeemed on receipt of said amount. Said application was dismissed by the executing Court vide the impugned order dated 4-1-2006.
3. Counsel for the parties have been heard and the record appended with this appeal perused.
4. It is contended on behalf of the appellants that it has been incorrectly stated in the plaint that the appellants had guaranteed the facility sued upon. In fact, the appellants were only mortgagors and in terms of mortgage deed appended with the plaint, liability of the appellants was limited to a sum of Rs.1,67,000. In this behalf, learned counsel has drawn this Court's attention to clause (g) of the mortgage deed, copy whereof has been appended with the appeal.
5, Contentions raised by the appellants have been controverted by the learned counsel for the respondent-Bank. It is contended that in terms of mortgage deed, liability of the present appellants was also in respect of any amount advanced by the respondent-Bank to respondent No.2. In this behalf learned counsel has referred to clause (e) of the mortgage deed. Adds that the execution Court had no jurisdiction to adjudicate upon the contentions raised on behalf of the appellants.
6. Suit for recovery was filed in which the appellants had been impleaded as defendants. In the plaint it is alleged that the appellants were guarantors and also secured facility through mortgage of the property. Mortgage deed was appended with the plaint. Appellants never entered appearance and the suit was decreed. Perusal of the decree reveals that it is for recovery of money only inter alia against the appellants. No doubt the executing Court has the jurisdiction to examine all the documents on record to ascertain true import of the decree but it cannot travel behind the decree. Contentions now being raised by the learned counsel for the appellants pertain to interpretation of a document filed before the Tribunal where the appellants never entered appearance or replied to the show-cause notice and decree was eventually passed. To permit the appellants to raise this issue at this stage would amount to a retrial of the suit, which is not possible in execution proceedings and the Court executing the decree cannot sit in appeal against the decree sought to be executed before it. In these circumstances, application of the appellants has been rightly dismissed vide the order impugned. For the foregoing facts and reasons, this appeal being devoid of any merit stands dismissed accordingly.