Mian Hamid Farooq, J.--Appellant/Judgmet Debtor No. 4, through the present appeal, under Section 22 of Financial Institutions (Recovery of Finances) Ordinance, 2001, has called in question order dated 22.5.2006, whereby the learned Judge Banking Court declined the request of the appellant to sell hypothecated goods for satisfaction of the decree,
2. Respondent bank/Respondent No. 1 filed the suit for recovery of Rs. 10,08,380/-, against Respondents Nos. 2 to 4, wherein the appellant was impleaded as Defendant No. 4 in the capacity of mortgagor. The suit was decreed against Respondents Nos. 3 and 4, vide judgment and decree dated 7.2.2005, while a separate decree for an amount of Rs.10,08,380/- was passed against the appellant, on 7.12.2005, alongwith the costs of suit and costs of funds. Pursuakt to the above, the suit was converted into execution petition, as provided under Section 17 of Ordinance XLVI of 2001. In response to notices under Order XXI Rule 66 CPC, issued by the learned Executing Court, the appellant filed the objection petition, under Section 19(7) of the Ordinance, with the prayer that hypothecated goods amounting to Rs. 3 Million may be auctioned for satisfaction of the decree, as the said goods were primary security. The learned Judge Banking Court, after finding that it is option of the decree holder to seek mtisfaction of the decree through sale of mortgaged property or hypothecated goods or both simultaneously, dismissed appellant's objection petition, vide impugned order dated 22.5.2006, hence the present appeal.
3. Learned counsel for the appellant states that firstly the decree is to be satisfied from the sale of the hypothecated goods and thereafter if any amount is still recoverable then the mortgaged property can be sold. He adds that in fact the principal debtor hypothecated the goods.
4. We have heard the learned counsel and examined the available record. It is admitted that the appellant was sued in the capacity of the mortgagor, as she created mortgage over her property and that a decree was also passed against the appellant, which has attained finality. After passing of the decree, the appellant is equally one of the judgment debtors and thus cannot plead that she stood surety for the principal debtor. There is no cavil with the proposition that it is the discretion, option and privilege of a decree holder to seek the execution and satisfaction of the decree either through the sale of mortgaged property or hypothecated goods or through any other modes of execution provided under the law. Even the simultaneous execution of the decree through attachment and sale of the property and arrest and detention of a judgment debtor is permissible under the law and a decree can be executed against the person or property of judgment debtor or against both. Section 19(2) of Ordinance XVLI of 2001 provides that Banking Court shall execute the decree in accordance with the provisions of CPC or any other law for the time being in force or in such manner as the Banking Court may at the request of the decree holder considers appropriate including recovery as arrears pf land revenue. It flows from the above that it has been left to the discretion of the learned Banking Court to execute a decree through any manner or mode prescribed under CPC or any provision of law or any manner deem fit by it. A judgment debtor is, in no way, in a A position to suggest a decree holder to execute the decree in a particular manner and according to his wishes, rather it is the discretion of the decree holder bank to get the decree executed, through any of the modes of execution provided under the law. In the instant case, the appellant, who is one of the judgment debtors cannot be allowed to plead that firstly the hypothecated goods be sold instead of the mortgaged property, more so when the stance of the respondent bank is that no list of hypothecated goods was provided to the decree holder.
5. In view of the above, we have examined the impugned order and find that the same does not suffer from illegality and, thus, we are not inclined to interfere in the impugned order, which is hereby maintained.
6. Upshot of the above discussion is that the present appeal is devoid of merits, hence the same stands dismissed in limine.