' MUHAMMAD ATHER SAEED, J.---This Civil Appeal has been filed against the judgment of the learned High Court of Balochistan, Quetta dated 22-7-2002 in High Court Appeal No.17 of 2001 whereby the learned High Court of Balochistan modified the order dated 31-3-2001 passed by Special Judge, Banking Court, Quetta in Execution Application No. 173 of 1997 wherein the objections filed under sections 47 and 12(2), C.P.C. Had been rejected and held that the liability of the present respondents was only to the extent of Rs. 16 lakhs and property had been wrongly handed over to the appellant-bank.
2. Brief facts of the case are that late Haji Muhammad Qasim Jan, husband of respondent No.1 and father of respondents Nos.2 and 3 had obtained a loan of Rs.90 lakhs from the appellant-bank. As security against the said loan he had mortgaged property bearing Plot No.9-B .Situated at Chamman Road Smungli Housing Scheme Quetta measuring 14000 sq.Ft and bungalow constructed thereon which was in the name of and belonged to respondents Nos.2 and 3 who were minors at that time. The late father of the respondents had applied for and had been granted permission to get the property mortgaged for the benefit of minors vide order of the Guardian.Judge dated 17-2-1987. The property in dispute was initially mortgaged to the extent of Rs.16 lakhs and then equitable mortgage by deposit of title deeds for sum of Rs.1,75,36,500 and a promissory note for the above amount were also executed on the same date i.e. 21-12-1991. Besides, the above property another property measuring 55 acres 2 rods and 5 poles situated in Mauza Apozai, District Zhob belonging to the deceased was also mortgaged to the extent of Rs.162,37,500.
3. The appellant-bank filed a suit for recovery against the deceased father and the present respondents Nos.2 and 3 for Rs.2,15,11,653 along with interest and cost of the suit before the Banking Tribunal. This suit was decreed for the above amount on 30-3-1994.-Admittedly no remedy was sought by the present respondents or the deceased against the above decree. The decree holder filed the execution application on 3-8-1994 and on this application the property was put 'to auction on various occasions but the highest bid received was considered to be low by the Banking Tribunal and was not accepted by it whereas in other auctions there were no bidders, therefore on 11-7-1997 on the application of the present appellant-decree holder, the possession of the house was handed over to the appellant and property in dispute was sold to the bank/decree holder for a sum of Rs.1 crore which was to be adjusted against the decretal amount. Objections were filed by the judgment-debtor with the prayer that the request of the bank to sell the property to it for Rs.l crore be rejected and he may be given time to dispose of the property within one year. This request was rejected by the Judge Banking Court vide order dated 17-11-1998. Being aggrieved by the order of the Banking Court, a Constitutional Petition was filed before the learned High Court of Balochistan and the learned High Court vide judgment dated 1-4-1999 dismissed the petition against which Civil Petition for Leave to Appeal was filed before this Court and this Court vide its order dated 1-11-2000 in C.P. No.237-Q of 1999 disposed of the petition by directing that since Qasim Jan the father of the present respondents Nos.2 and 3 had expired, respondents Nos.2 and 3 will be at liberty to file fresh objections before the Executing Court regarding the execution of the decree as a whole against them or to the extent of their share in the mortgaged property and if objections were raised before the Court seized with the matter it shall dispose of same independently without being influenced by its earlier order. Respondents Nos. 2 and 3 filed fresh objections and the same were rejected by the order of the Judge Banking Court, Quetta dated 31-3-2001. Being aggrieved by the above order the respondents filed an appeal under section 21 of the Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act XV of 1997 before the learned High Court of Balochsitan, Quetta which was disposed of by the impugned judgment. Hence this civil appeal.
4. We have heard Kh. Muhammad Farooq, learned Senior Advocate Supreme Court for the appellant and Mr. M. Bilal, learned Senior Advocate Supreme Court for the respondents.
5. The learned Senior Advocate Supreme Court for the appellant after narrating the facts of the case submitted that initially the deceased respondent on his behalf and on behalf of the two minors had mortgaged the property in question to the bank for a sum of Rs.16 lakhs against loan availed by him. He later on executed equitable mortgage by deposit of title deeds for sum of Rs.
1,75,36,500. The Banking Tribunal Balochistan decreed the suit for the amount prayed along with mark up from the date "of filing of suit till the decretal amount is realized. Admittedly no remedy was sought by the respondents against the above judgment. However, the deceased respondent initially filed objections during execution proceedings which were rejected upto the stage of learned High Court but this Court vide its order cited above had allowed the respondents Nos.2 and 3 to file fresh objections. He submitted that by a well-reasoned order the Banking Court dismissed the objections but the learned High Court vide impugned judgment had modified the judgment of the Banking Court to the extent that the respondents Nos.2 and 3 were made liable for a sum of Rs.16 lakhs only by holding that no approval had been obtained from the Guardian Judge for granting permission by the deceased respondent to create any equitable mortgage by deposit of title deeds and therefore that mortgage which was entered into by the deceased respondent in excess of authority cannot be applied against the present respondents. He submitted that the guardian Court had vide its order dated 17-2-1987 allowed the deceased father to mortgage the property with the bank and drew our attention to the above mentioned order. After reading the order he submitted that the guardian Court had granted blanket permission to mortgage the subject property and had not mentioned that the property will be mortgaged only through mortgage deed or had barred the deceased respondent from creating any equitable mortgage by deposit of title deeds and therefore the deceased respondent enjoyed full authority to mortgage the property for availing the loan in any manner he deemed feasible in the interest of minors. He further submitted that learned High Court has also held that property has been wrongly handed over to the appellant- bank. He submitted that the Banking Court in verbal order had allowed the present appellant to purchase the property for Rs.1 crore and had reached this decision after the highest bid in various auctions was Rs.42,55,000 and no interest was shown by any person to purchase the property. He further submitted that the Banking Court had passed the order by following the prescribed procedure. He further submitted that being aggrieved by the order of Banking Court the present respondents had filed constitutional petition before the learned High Court of Balochistan who vide their judgment dated 16-10-1997 had dismissed the petition being incompetent and the judgment of the learned High Court was upheld by this Court in its order dated 25-5-1998 and therefore that matter had become final and in the impugned judgment the learned High Court was not justified in giving its decision on this point. Learned Senior Advocate Supreme Court once again drew our attention to the fact that the initial decree was admittedly not challenged and in execution proceedings, the executing Court cannot go beyond the decree and the impugned judgment of the learned High Court travels beyond the settled law that executing Court cannot go beyond the decree. He, therefore, prayed that the impugned judgment be set- aside and that of the Banking Court be restored.
6. Mr. M. Bilal, learned Senior Advocate Supreme Court for the respondents strongly opposed the arguments of the learned Senior Advocate Supreme Court for the appellant and strongly supported the impugned judgment. He submitted that respondents Nos.2 and 3 were minors at the time the property was mortgaged and therefore the deceased. Respondent father of respondents Nos.2 and 3 who had already been appointed guardian by the Guardian Judge had to seek permission from the Guardian Judge and this permission as stated by the learned Senior Advocate Supreme Court for the appellant was granted on 17-2-1987 and was only for mortgage of property of the minor for the benefit and welfare of the minors and this mortgage was executed for a maximum amount of Rs.16 lakhs by the mortgage deed dated 25-5-1990.. According to the learned Senior Advocate Supreme Court once this mortgage deed was executed the permission granted by the Guardian Judge as mentioned above elapsed and if equitable mortgage was to be created then further permission had to be obtained from the guardian Court and no such permission was admittedly obtained, therefore, the deceased respondent executed equitable mortgage by exceeding his authority and any instrument executed in excess of authority of the deceased respondent is not binding on the respondents and therefore the learned High Court had rightly held that respondents Nos.2 and 3 were only bound to the extent of Rs.16 lakhs mentioned in the first mortgage deed. He further submitted that the house had been sold to the present appellant by the banking Court for a sum of Rs.1 crore on verbal request without following the prescribed procedure.
He stated that at the time the house was sold to the appellant-bank the value of the house was Rs.4 crore and therefore it was sold for peanuts to the appellant-bank and thus has rightly been held to be illegal by the learned High Court and directions were rightly issued for return of the house. Learned counsel submitted that this Court has held that executing Court can modify the decree during execution proceedings. In this connection he relied on the judgments of this Court in the case of Islamic Republic-of Pakistan v. Muhammad Saeed reported in PLD 1961 SC 192 and in the case of Fakir Abdullah and others v. Government of Sindh and others reported in PLD 2001 SC
131. Learned Senior Advocate Supreme Court also submitted that before the learned High Court the counsel for the present appellant had conceded to the arguments of the counsel for the respondents that section 58 of the Transfer of Property Act provided that liability of mortgager against the property mortgaged is only to the extent of mortgaged amount. He, therefore, prayed that appeal being meritless be dismissed.
7. We have examined the case in the light of the arguments of the learned Senior Advocate Supreme Court for the parties and have perused the record of the case very carefully including the impugned judgment, the judgment of the Banking Court impugned before the learned High Court and this Court and various orders/judgments passed by the Banking Court, the learned High Court and this Court and also the judgments relied on by the learned Senior Advocate Supreme Court for the respondents.
8. We will first take up the point whether in the execution proceedings the Executing Court can travel beyond the decree. We will first take up the judgments relied by the learned Senior Advocate Supreme Court for the respondents. In the case of Islamic Republic of Pakistan (quoted supra) this Court has held as under:-- "It is next urged that since no appeal has been preferred against the original order in the writ petition itself the appellant should not be allowed to challenge or go behind that order in this appeal. We see no substance in this contention, for, even in execution proceedings question relating to the executability of an order or decree can be raised and it is open to the party against whom it is sought to be executed to show that it is null and void or had been made without jurisdiction or that it is incapable of execution. Therefore, if the order passed by the High Court of West Pakistan on the 13th of November, 1958, can be shown to have been made clearly without jurisdiction, then the appellant can certainly object to its enforcement."
' In the case of Fakir Abdullah (quoted supra) this Court held as under:-- "There is no cavil with the proposition that a Court executing a decree ordinarily is not supposed to travel beyond its terms as held in number of judgments pronounced by superior Courts, few of them have been referred by the learned counsel for the petitioners in his arguments but simultaneously the executing Court while exercising jurisdiction under section 47, C.P.C. Can question the executability of a decree if it is satisfied that the decree is a nullity in the eye of law or it has been passed by a Court having no jurisdiction or the execution of the decree would not infringe the legal rights of the decree-holder if refused to be executed or the decree has been passed in violation of any provision of law."
' We have also managed to lay our hands on a recent judgment of this Court in the case of Tauqeer Ahmad Qureshi v. Additional District Judge, Lahore and 2 others reported as PLD 2009 SC 760, in this case this Court while examining various judgments on this point concluded as under:-- "In the case of Haji Hafiz Abdul Shakoor Khan (PLD 1951 Lah. 32), it was held that the executing Court cannot go behind decree but may declare a decree to be incapable of execution and in such cases the Court is not going behind the decree. In the case of Islamic Republic of Pakistan (supra), it was held by this Court that questions relating to the executability of an order or decree can be raised even in the execution proceedings and it is open to the party against whom it is sought to be executed to show that it is null and void or had been made without jurisdiction or that it is incapable of execution. In the case of Fakir Abdullah and others (PLD 2013 SC 131), it was held by this Court that where the Court is satisfied that decree is nullity in the eyes of law, or the same has been passed by Court having no jurisdiction or the rights of the decree-holder would not be infringed if the decree is refused to be executed or the decree has been passed in violation of any provision of law, the executing Court under provisions of section 47, C.P.C. Can question executability of decree.
In the case of Messrs A.Z. Company (PLD 1965 SC 505), it was held by this Court that the portion of arbitration award relating to such interest which was not awardable, was separable from rest of award and could be struck off as mere surplusage and setting aside of the whole of the award was declined in circumstances of the case."
' From a perusal of the above judgments, it becomes clear that in the proceedings of the execution of decree, the executing Court while exercising jurisdiction under section 47, C.P.C. Can question the executability of a decree if it is satisfied that the decree is a nullity in the eyes of law or it has been passed by a Court having no jurisdiction or the non-execution of the decree would not infringe the legal rights of the decree-holder or the decree has been passed in violation of any provision of law, only then the executing Court can refuse to execute the decree. The learned counsel for the respondents has not pleaded that the initial decree was a nullity in the eyes of law, had been passed by a Court having no jurisdiction or was non-executable or will not infringe the rights of decree holder and therefore the judgments relied on by him are distinguishable. On an examination of the judgment of the Banking Court we are satisfied that while passing the decree against the respondents the banking Court had jurisdiction to pass the above judgment and decree is not a nullity in the eyes of law, is executable and the decree holder has been seriously prejudiced by modifying the original decree without such decree being challenged. We are, therefore, of the considered opinion that the judgments relied on by the learned Senior Advocate Supreme Court for the respondents are distinguishable and thus arguments of the learned Senior Advocate Supreme Court on this point are repelled.
9. We have very carefully perused the order of the Guardian Judge dated 17-2-1987 and have seen that Guardian Judge had granted permission to the deceased father of the respondents to mortgage the property with the bank. Both the mortgages through mortgage deed and equitable mortgage by deposit of title deeds have been executed for obtaining the same loan and we are of the view that no further permission was required for the execution of equitable mortgage as a blanket permission had been granted to the deceased respondent to mortgage the property. We are, therefore, of the view that the deceased respondent under the above order had full authority to enter into both the mortgages in respect of the same loan. This argument of the learned Senior Advocate Supreme Court for the respondents is also repelled.
10. Regarding the arguments of the learned Senior Advocate Supreme Court for the respondents and decision of the learned High Court of Balochsitan regarding the return of the house which has been sold at Rs.1 crore to the bank, we are of the view that in view of failure in various auction to receive a reasonable bid the Banking Court was justified in directing the sale of the house to the appellant-bank for Rs.1 crore which is far higher than the bid received. We have also gone through the evaluation certificate of the property prepared by Messrs Unique Associates who had valued the property at Rs.1,01,60,304 which is almost the same price on which the property had been sold to the appellant-bank. Even otherwise we tend to agree with the learned counsel for appellant that the judgment of the banking Court by which the property was allowed to be sold to the appellant- bank after rejection of the Constitutional Petition filed against the order of the banking Court and the dismissal of the CPLA by this Court which had, therefore, attained finality and had become a past and closed transaction and the High Court of Balochistan was not justified to direct the return of the property to the respondents.
11. We are, therefore, of the considered opinion that impugned judgment of the learned High Court of Balochistan cannot be sustained. We, therefore, allow this appeal and set-aside the impugned judgment and restore the order of the Judge Banking Court Balochistan, Quetta dated 31-3-2001 in Execution Application No.173 of 1997. No order as to costs.