' MUHAMMAD ATHAR SAEED J.---This High Court appeal has been filed against the order of the learned Banking Court Noll, at Karachi dated 2-2-2010 in Execution Application No, 46 of 1993 wherein while disposing of the application filed by the present respondent under section 151, C.P.C., the learned Banking Court directed the Nazir of the court to dispose of the mortgaged property for the highest bid of Rs,5.00 million and pay the decretal amount of Rs,11,77,788 along with costs of the suit awarded to Decree Holder that is the present appellant and the remaining amount of Rs,38,04,472.50 to be paid to Judgment Debtor No,2 whose mortgaged property have been auctioned as according to the learned Judge it has been observed in the original judgment that the liability of the Judgment Debtor No,2 the present respondent No,2 will be limited to the amount secured and shown in , the Memorandum of Deposit of Title Deeds.
2. Brief facts of the case are that the present appellant had filed a suit for recovery against a partnership firm who had borrowed money from it, and had also impleaded the present respondent as defendant No,2 because he had mortgaged his property as security in lieu of the finances advanced to defendant No,l. The suit was heard and decreed by the Banking Tribunal for Karachi and Sukkur at Karachi vide judgment dated 21-10-1992 in suit No,,1250 of 1992 whereby the Banking Tribunal had decreed the suit against the defendants jointly and severally for Rs, 11,77,788.00 with future markup at the agreed rate from the date of the decree till. Realization and had also observed that the liability of the defendant No,2 as mortgagor shall be limited to the amount secured and shown in the Memorandum of Deposit of Title Deeds as stated above which was limited to maximum amount of Rs, 10,95,615.00 plus all service charges and any and all cost etc. The present appellant had moved an Execution Application for execution of the decree by claiming mark up on the decretal amount against both the defendants. The application under section 151, C.P.C. Was filed by the present respondent No,2 who was judgment debtor No,2 'stating that his liability had been restricted in the judgment to the extent of .Rs,10,95,615.00 only and therefore so far as the property was concerned, only the above liability could be recovered from him and as stated earlier this application was allowed by the learned Banking Court through the impugned order and the appellant aggrieved by the impugned order has filed this appeal.
3. We have heard Mr. Sadruddin Hud'da the learned counsel for the appellant bank and Mr. Aftab Hussain Soomro the learned counsel for respondent No,2.
4. The learned counsel for the appellant argued that the impugned order is illegal and invalid as by allowing the application under section 151. C.P.C. The learned Banking Court has gone beyond its power as in an execution application it cannot go beyond the judgment and decree and in the judgment and decree it has specifically been mentioned that this suit has been decreed against the defendants jointly and severally for the amount of Rs,11, 77,788.00 along with markup calculated up to the date of realization of the decretal amount. He submitted that so far as the limited liability of the present respondent No,2 is concerned it is not a substantial part of the order of the Banking Tribunal but just a passing observation which may at the most be in the nature of obiter dicta and therefore cannot be considered during the execution proceedings of the judgment and decree. In this connection he referred to subsection (4) of section 6 of Banking Tribunal Ordinance, 2001. He also relied on section 34.-B of the C.P.C. Which provides that while passing a decree for the payment of money due to a banking company in lieu of repayment of a loan advanced by it, the Court in the decree shall provide for interest or return, as the case may be, from the date of decree till its payment. The learned counsel took us through the original judgment dated 21-10-1992 and submitted that the Banking, Tribunal had. Disposed of the case in the following manner.
"For the aforesaid reasons the suit is decreed against the defendants jointly and severally for Rs,11, 77,788 with future mark up at the agreed rate from the date of the decree till realization, with, the observation that the liability of the defendant No, 2 as mortgagor shall be limited to the amount secured and shown in the Memorandum of Deposit of Title Deeds as stated above."
5. He submitted that from the above extract of the judgment it can be clearly seen that the suit was decreed against the defendants jointly and severally for Rs, 11,77,788.00 with future markup and the observation that the liability of the defendant No,2 as mortgagor shall be limited to the amount secured and shown in the Memorandum of Deposit of Title Deeds is just an observation and not a part of substantive decision and therefore the learned Banking Court could not have gone beyond the judgment and restricted the liability of the respondent No,2. In this connection he relied on a judgment of this Court in the case of HABIB BANK LTD. And another v. WASIM ENTERPRISES and others (2007 CLD 473). In support of his contention that the grant of markup is mandatory in accordance with subsection (4) of section 6 and section 34-B, C.P.C he relied on judgment reported as HABIB BANK LTD. v. IFTIKHAR AHMED and 7 others (1993 CLC 535). To substantiate his argument that the observation was in nature of obiter dicta he read out the definition of obiter dicta in Black's Law dictionary which is also reproduced -for the sake of convenience:-- "Obiter dictum words of an opinion entirely unnecessary for the decision of the case. Noel v. Olds, 78 US App DC 155, 138 F.2d 581, 586. A remark A made, or opinion expressed, by a judge, in his decision upon a cause, "by the way," that is, incidentally or collaterally, and not directly upon the question before him, or upon a point not necessarily involved in the determination of the cause, or introduced by way of illustration, or analogy or argument. Such are not binding as precedent".
6. He also relied on a judgment of the Madras High Court in the case of The Chief Controlling Revenue Authority, Madras v. The Canara Industrial and Banking Syndicate Ltd, Madras and others (AIR 1969 MADRAS 1 (V 56 C1) wherein it has been held that while interpreting a judgment it would be an erroneous principle of interpreting the judgment to press into service the last few observations alone, divorced from theearlier dicta and the explicit fact that the learned Judges were dealing with a document, which could not be a mortgage deed at all. He also relied on a judgment of the Honourable Supreme Court in the case of HYDERABAD DEVELOPMENT AUTHORITY v.
ABDUL MAJEED and others (PLM 2002 SC 84) in which it was held that judicial pronouncements should be based on evidence and material available on records and reasons must be an outcome of the evidence available and on the basis of such reasons conclusion should be drawn and where the order/ pronouncement lacks such ingredients it cannot be termed a judicial verdict in stricto senso and such pronouncement at the best can be termed to be an administrative order incapable to settle controversy judicially between the parties. On this judgment he had relied after he had informed the Court that the present respondent had not appeared before the Banking Tribunal at the time of passing of original judgment and had not made any arguments and had not produced any evidence and therefore he argued that the Banking. Tribunal could not have limited the extent of his liability.
7. On the basis of above arguments and judgments the learned counsel prayed that the impugned order may be set aside and the Banking Court may be directed to execute the decree in letter and spirit and compute the liability against the respondent amounting to the decretal amount plus mark up from the date of the decision till the date of realization.
8. The arguments of the learned counsel for the appellant were strongly opposed by the learned counsel for the respondent who submitted that his application was only made to request the Banking Court to execute the judgment and decree against which he had not filed any appeal and not to go beyond the judgment and decree and the learned Court had rightly allowed it. He supported the impugned order and relied on the judgment of this Court in the case of NAJMUL HASSAN ATA and 4 others v. HABIB BANK LIMITED through President and 5, others (2006 CLD 1506) and' an unreported judgment of this Court dated 8-5-2006 in Ist Appeal No,46 of 2005 wherein this Court had held that the judgment and the decree could only be executed against the deceased appellant only to the extent of a liability in view of the documents executed by her. He therefore prayed that the impugned judgment may be upheld and the appeal may be dismissed.
9. We have examined the case in the light of the arguments of the learned counsel and perused the record of the case including the impugned orders, the law on the subject and the judgments relied on by the learned counsel.
10. . In the earlier part of this judgment while recording the arguments of the learned counsel for the appellant, we had reproduced the extract of the judgment of the Banking Tribunal by which he had disposed of the suit. A perusal of that extract, in our view, reveals that though the Banking Tribunal had decreed the suit jointly and severally against B the defendants but had subjected this decision in respect of defendant No,2 to be limited to the extent of the amount secured and shown in the Memorandum of Deposit of Title Deed. The learned counsel for the appellant has argued that the observation limiting the liability of defendant No,2 is just an observation of the Court in passing and is not a part of the substantive judgment. According to him at best it can be C considered obiter dicta. We have also reproduced meaning of obiter dicta given in the Black's Law Dictionary which was also relied on by the learned counsel for the appellant. According to this definition obiter dicta' means words of an opinion, which are entirely unnecessary for the decision of the case and includes remarks made or opinion expressed in his decision by the way that is'incidentally or collaterally and not directly upon the question before him or upon a point not necessarily involved in the determination of the cause. It has further been provided in this definition that such expressions are not binding as precedent. On the basis of this definition the learned counsel submitted that the observation of the learned Judge limiting the liability of. Defendant No,2 should not be treated, as a part of the decision and should be ignored. We regret we cannot bring ourselves to agree with this argument of the learned counsel. We are of the considered view that the observation of the learned Judge in respect of limiting the liability of respondent No,2 that is the present respondent No,2 is in the nature of a proviso to a statute and the effect of the proviso is to restrict the application of the main statute. Similarly, in our view, this observation restricts the earlier part of the judgment by which the liability has been held to be jointly, and severally made against both the respondents and the liability of the respondent No,2 has been limited. In the light of these discussions we will now take up and examine the judgments relied on by the learned counsel for the appellant.
11. In the judgment of this Court in the case, of Wasim Enterprises quoted supra, this, Court had held that no Court under the garb of substantive justice could be allowed to exceed its jurisdiction Or violate the settled legal principles as regards jurisdiction, of executing Courts that it could not go beyond the judgment and decree under execution. In that case an application was moved by respondent No,2 seeking clarification of the limited liability in respect of the decree under execution. The learned Banking Court had accepted her application, and passed the impugned order whereby virtually it modified the judgment and decree under execution. . This Court after examining the case and arriving at the conclusion that no such order was passed at the time of passing the original judgment held, as noted above, that the Executing Court cannot go beyond the decision in the original judgment and decree. There can be no cavil to this proposition but in the present case this limitation has been made in the original judgment itself and all that the respondent No,2 in his application was seeking was to point out that if the execution is done as prayed in the execution application then it will be going beyond the original judgment and decree and therefore, in our view, this case supports the case of respondent No,2. .
12. . The learned counsel has also relied on section 34B of the Civil Procedure Code and has relied on various judgments noted above to show that grant of interest is a mandatory right of the loan giving agency. There can be no cavil to the provisions of section 34B of the C.P.C. But we are of the opinion that if the Banking Tribunal at the time of passing the original order had not considered section 34B and given effect to it in favour of the appellant than a remedy was available to the appellant to file an appeal against this omission of Banking Tribunal which admittedly was not done.
13. In the Indian case of Canara Industrial and Banking Syndiate quoted supra it was held that while interpreting a judgment it would be an erroneous principle of interpreting the judgment to press into service the last few observations alone, divorced from the earlier dicta. This case is distinguishable as we have already held that the observation that the liability of the present respondent No,2 is limited is part of the substantive order and in fact qualifies the substantive order. .
13(sic.) In the case of Abdul Majeed quoted supra it was held that judicial pronouncement should be based on material and evidence on record and reasons should be an outcome of the evidence available and on the basis of such reasons conclusion should be drawn and where the order/pronouncement lacks such ingredients it cannot be termed a judicial order in stricto senso.
Although, in our view, this is not the case but even if this was the case then the only remedy available to the appellant was to file an appeal against the original judgment before the Appellate Court.
14. In the case of Habib Bank Ltd. v. Iftikhar. Ahmed quoted supra, the Court had held that grant of interest is a mandatory requirement under subsection 8(2) of the Ordinance XIX of 1979. However, if this interest was not allowed, as pointed above, the only remedy was to file appeal against the original judgment.
15. In the case of Naseem Akhtar quoted supra, it has been held that questions which could have been raised in proceedings in suit but were not raised, could not be urged by judgment debtor before Executing Court. We have already held that no fresh question was raised by the judgment debtor before the Executing Court and he was only asking the Executing Court to execute the judgment and decree as it has been passed and had not argued on any fresh grounds.
16. . The cases relied on by the learned counsel for the respondent No,2 are only in respect of his claim that the liability of mortgagee should be limited to the extent provided in the mortgage deed but these cases will have no relevance to this particular case because of the fact that we have already held that the Banking Tribunal had limited the liability of the respondent No,2 to the extent of his maximum liability under the mortgage deed and had passed a speaking order in this respect which had not been appealed against by the present appellant and by the impugned order the learned Banking Court had only considered and allowed the present respondent's application that since the Executing Court cannot go beyond the judgment and decree, therefore, it should finalize the execution proceedings by executing the judgment and decree in letter and spirit.
17. On the basis of the above discussion we are of the considered opinion that there is no illegality and infirmity in the impugned judgment which is unexceptionable and completely in accordance with law and therefore no interference is called from this Court.
18. The above are the reasons in support of our short order delivered in Court on 25-3-2011 after hearing the learned counsel whereby we had dismissed the appeal and the pending applications in limine.