' ABID AZIZ SHEIKH, J.---This EFA has been filed under section 22 of the Financial Institutions (Recovery of Finances) Ordinance 2001 ("FIO 2001") against the impugned order dated 13-5-2011 passed by the Banking Court No,III, Lahore in execution, whereby the cost of funds under sections 3 and 17 of the ("FIO 2001") has been determined from the date of institution of the suit and not from the date of default till realization of amount, as claimed by the appellant.
2. Brief facts are that the appellant filed a suit on 31-8-2010 for recovery of Rs,11974413.88 along with costs and cost of funds against the respondents before the Banking Court Lahore. The suit was decreed on 7-3-2011 for Rs, 11974413.88 in favour of the appellant bank along with costs and cost of funds under sections 3 and 17 of FIO, 2001. During execution the respondents deposited the decretal amount and moved an application before the executing Court to determine the cost of funds. The executing Court vide impugned order dated 13-5-2011 held that cost of funds will be from the date of institution of the suit till 13-4-2011 which comes to Rs,4,65,326. The appellant Bank being aggrieved filed this EFA against the aforesaid impugned order.
3. The learned counsel" for the appellant argued that under sections 3 and 17 of the FIO 2001, the appellant bank is entitled to the grant of cost of funds from the date of default till its realization and not from the date of institution of the suit as held in the impugned order. It is further argued that according to the appellant bank the date of default should be 10th of July, 2009 as the Banking Court allowed markup only upto the aforesaid date. Reliance is placed on Habib Bank Limited v.
Tauqeer Ahmed Siddiqui and another (2009 CLD 312), Allied Bank of Pakistan. Limited v. Northern Polyethylene Limited and others (2006 CLD 565) and Bank of Punjab through Authorized Officer v.
Messrs KNK Infrastructure (Pvt.) Ltd. Through Chief Executive Officer and 2 others (2012 CLD 961), Messrs Emen Textile through Sole Proprietor and another v. Habib Bank Limited (2010 CLD 547).
4. Conversely, the learned counsel for the respondents argued that the cost of funds could only be recovered from the respondents from the date of institution of the suit which was 31-8-2010 till 13- 4-2011. He further argued that as no date of default was determined in the decree the impugned order is not illegal and in pursuance to the said order respondents have already deposited Rs,4,65,326. In this context reliance is pladed on Industrial Development Bank of Pakistan v. Pakistan Belting (Pvt.) Limited through Chief Executive and 5 others (2006 CLD 808), Zarai Taragiati Bank Limited through Branch Manager v. Hassan Aftab Fatiana (2009 CLD 36) and Crescent Commercial Bank Now Samba. Bank Ltd. v. Genertech Pakistan Ltd. (2011, CLD 37).
5. We have given anxious consideration to the arguments advanced by the learned counsel for the parties and perused the record with their able assistance.
6. The provisions of sections 3 and 17 of the FIO 2001 deals with cost of funds. It is expedient to reproduce section 3 and section 17 of FIO, 2001 which reads as under:- "3. Duty of a customer:---(1) It shall be the duty of a customer to fulfill his obligations to the financial institution.
(2) Where the customer defaults in the discharge of his obligation, he shall be liable to pay for the period from the date of his default till realization of costs of funds of the financial institution as certified by the State Bank of Pakistan from time to time, apart from such other civil and criminal liabilities that he may incur A under the contract or rules or any other law for the time being in force.
(3) For purposes of this section a judgment against a customer under this Ordinance shall mean that he is in default of his duty under subsection (1) and the ensuing decree shall provide for payment of the costs of funds as determined under subsection (2) and said section 17.
"17. Final Decree.---(1) The final decree passed by a Banking Court shall provide for payment from the date of default of the amounts found to be payable on account of the default in fulfillment of the obligation, and for costs including, in the case of a suit filed by a financial institution cost of funds determined under section 3.
(2) The Banking Court may, at the time of passing a final decree, also pass an order of the nature contemplated by subsection (1) of section 16 to the extent of the A decretal amount".
7. From the plain reading of the above noted provisions, it is conspicuously clear that the, customer will liable to pay cost of funds from the date of his default till realization of cost of funds as certifier by State Bank of Pakistan.
8. In the present case, the Banking Court while passing the decree dated 7-3-2011 granted cost of funds under sections 3 and 17 of FIO 2001. Although the specific date of default is not mentioned in the decree, however, the date of default has been defined therein. The relevant para of the decree dated 7-3-2011 is reproduced hereunder:- "Claim of the plaintiff to the tune of Rs,589,071 in respect of markup charged after the date of default is declined."
9. From the above finding in the decree dated 7-3-2011, it is evident that the Banking Court was mindful of the date of default at the time of passing the decree, after which date no markup was allowed to the appellant. The statement -of account shows that the relevant date of default after which markup of Rs,589,071 was not allowed in the decree by the Banking Court was 10-7-2009, which is to be taken as date of default for the purpose of section 3 of FIO 2001.
10. The arguments of learned counsel for the respondents that cost of fund should be from the date of institution of the suit is not tenable for two reasons, firstly that under section 3 of IFO 2001, the cost of fund will be from the date of default and secondly the date of default is already determined in the decree dated 7-3-2011. No doubt the executing. Court could determine the date of default under section 47, C.P.C. If no such date was defined in the decree but in the present case date of default is defined and can be ascertainable from the decree. The impugned order is not sustainable in view of the settled principle of law that an Executing Court could not go behind the decree and it is obliged to execute the decree as it is. In .This context reliance is placed on Zahid Industries v. Habib Bank (2007 CLD 618), Muhammad Ali v. Zakir Hussain (PLD 2005 Lah 331), A esha Bibi v. National Logistic Cell (2002 CLC 747), Hassan Masood Malik v. Additional District Judge and others (1994 MLD 1877) and Messrs Dawood Cotton Mills Ltd. v. KF Development Corporation Ltd.
(2004 CLC 671).
11. For the foregoing; this appeal is allowed and the impugned order dated 13-5-2011 is set aside.
C.M. Nos. 1 and 5/C-2011 ' As the main appeal has been finally disposed of today, these applications have become infructuous. C.Ms. Stands disposed of.