AMIN-UD-DIN KHAN, J:- Through this appeal appellants have challenged two separate orders dated 22.5.2012 passed by learned Judge Banking Court No. II, Lahore whereby through the first order the objection petition with regard to fixation of reserve price has been dismissed and through the second order an objection petition filed under section 47 of CPC read with sections 151 & 152 of CPC has been dismissed.
2. Learned counsel for the appellants has argued that the expiry date according to the approval of finance was 31.12.2005 whereas the learned trial court has decreed the suit as prayed for and states that the plaintiff/respondent Bank has included the mark up till 30.9.2008, therefore, states that the executing court was competent to execute the decree which has been passed in accordance with law and the exaggerated amount of mark-up which has been included in the claim by the plaintiff after 31.12.2005 till 30.9.2008 cannot be included in the claim of the plaintiff.
3. On the other hand, learned counsel for the respondent states that the ex-parte decree was passed on 14.7.2009 where against the defendants/judgment debtors i.e. the present appellants filed an application under section 12 of the Financial Institutions (Recovery of Finances) Ordinance, 2001, which was dismissed on 25.3.2010, therefore, states that the present appeal is not maintainable and the order passed by the learned executing court is in accordance with law though admitted the date of expiry of finance facility as 31.12.2005.
4. We have heard learned counsel for the parties and gone through the record with their able assistance.
5. The question involved in this case is whether the executing court can see the executability of a decree under section 47 of the CPC read with section 152 CPC or the court has to blindly execute the decree as it is. We are of the view that if the defect is apparent on the face of the decree, the executing court has to dilate upon the matter under section 47 of the CPC in the light of interpretation made by the Hon'ble Superior Courts, therefore, we like to go through the same for guidance. We have the honour to go through the judgment of the august Supreme Court of Pakistan reported as 2014 SCMR 322 "Habib Bank Limited versus Mst. Parveen Qasim Jan and others". In the above referred judgment after considering the previous reported judgments of the august Supreme Court of Pakistan reported as PLD 2001 Supreme Court 131 (Fakir Abdullah and others versus Government of Sindh through Secretary to Government of Sindh, Revenue Department, Sindh Secretariat, Karachi and others) and PLD 1965 Supreme Court 505 "Messrs A.Z Company versus Messrs S. Maula Bukhsh Muhammad Bashir" the august Supreme Court of Pakistan has held:- "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."
We have also gone through PLD 1961 Supreme Court 192 "Islamic Republic of Pakistan versus Muhammad Saeed" wherein it has been held: "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 questions 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."
Further we have the honour to go through PLD 2001 Supreme Court 131 "Fakir Abdullah and others versus Government of Sindh through Secretary to Government of Sindh, Revenue Department, Sindh Secretariat, Karachi and others". Relevant paragraph No. 6 of the judgment is reproduced:- "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, say as in the instant case apparently petitioners obtained an ex parte decree in their favour without showing that what was their legal character to institute the suit in terms of section 42 of the Specific Relief Act and if the relief so claimed by them is not granted how he/they will be prejudiced or if the Court came to conclusion that by granting the relief to the decree holder the functioning of Government administration has been interfered with according to section 56(d) of Specific Relief Act. In this behalf reference from few of the judgments relied upon by the petitioner's counsel may be made: (i) Cantonment Board v. Kishan Lal AIR 1934 Allahabad 609, (ii) Alaat Hussain v. Mushtaq Ali AIR 1937 Allahabad 282, (iii) Messrs Haji Ahmed & Co. v. Muhammad Siddique and others PLD 1965 (W.P.) Karachi 293, (iv) Brig. (Retd)
Muhammad Aslam Khan v. The Azad Governemnt of the State of Jammu and Kashmir through the Secretary, Forest Department, Muzaffarabad and another 1983 CLC (SC (AJ&K) 1204, and (v)
Abbasia Cooperative Bank (now Punjab Provincial Cooperative Bank Ltd.) through Manager and another v. Hakeem Hafiz Muhammad Ghaus and 5 others PLD 1997 SC 3."
We are taking light from the judgment reported as 1971 SCMR 594 "Muhammad Sharif versus Jalaluddin" in which the august Supreme Court of Pakistan has noted the paragraph from the previous judgment of august Supreme Court of Pakistan reported as PLD 1961 SC 192 "Islamic Republic of Pakistan versus Muhammad Saeed", which is as follows:- "Questions relating to the executability of an order or decree can be raised even in 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."
While taking light from the above referred judgments we are clear in our mind that the executing Court can touch the question of executability of the decree and further if the decree is nullity in the eye of law or has been passed without jurisdiction, the executing Court can adjudge the same while exercising jurisdiction under section 47 of the CPC.
6. We are further fortified by the case law reported as 2003 CLD 1599 "Raheel Ikhlas versus Messrs Citibank N.A", PLD 1998 Karachi 302 "National Bank of Pakistan versus Punjab Buildings Products Ltd." and 2009 CLD 36 "Zarai Tariqiati Bank Limited through Branch Manager versus Hassan Aftab Fatiana". When it is admitted that date of expiry of the finance facility was 31.12.2005 the question whether the learned trial court was competent to grant mark-up beyond the expiry period, the answer is certainly in negative. In the light of celebrated judgment of Division Bench of this Court reported as 2004 CLD 162 "Muhammad Tariq versus Bank of Punjab and another", we quote Para 10 of the judgment for guidance:- "Attending to the last submission that, the Bank has charged mark-up beyond the contract period, we have examined the record; the statement of account and find that, the finance agreement was on mark-up basis and was for a particular period of time i.e. till 23.6.1992, enabling the Bank to charge mark-up. Thereafter, there was no agreement or law under which, the mark-up could be charged, thus, the amount in this behalf shown in the statement of accounts and claimed by the Bank, is illegal. We, therefore, intend to modify the judgments and decrees to that extent."
7. It is also not denied that till the expiry period the mark-up calculated by the respondent Bank itself was Rs:2,12,566.12 whereas the mark up added in the amount claimed by the respondent Bank till 30.9.2008 is Rs:6,27,204.16, therefore, only on the basis that previously application filed by the present appellants/judgment debtors under section 12 of the Financial Institutions (Recovery of Finances) Ordinance, 2001 was dismissed by the learned trial court, therefore, the learned executing Court cannot look into the question raised by the objectors/judgment debtors, we do not agree with the arguments advanced by learned counsel for the respondent and the finding recorded by the executing Court while dismissing application filed under section 47 of the CPC. We are of the view that technicalities cannot come in the way of dispensation of justice, especially where it is a case of hardship. We can safely rely upon PLD 2015 Supreme Court 15 "Mst. Shahista Bibi and another versus Superintendent, Central Jail, Mach and 2 others". In this view of the matter, we are of the view that the executing court was competent to look into the matter agitated before it under section 47 of CPC read with section 152 of CPC and this court in appellate jurisdiction has ample power to correct the mistake or illegality committed by the learned trial court/executing court. The appeal is allowed.