SAVED NAJAM-UL-HASSAN KAZMI, J. -- This is an execution appeal against order, dated 11.1.1972, passed by the learned District Judge, Lahore, whereby the objections petition tiled by the appellant was dismissed.
2. The material facts necessary for the disposal of this appeal are that Rashid Ahmed, predecessor of appellant, secured a loan in the year 1951 from the Government of West Pakistan through Director of Industries under the provisions of Punjab State Aid to Industries Act, 1935. It was claimed that the loan was not returned in terms of agreement on which proceedings were taken under Sections 23, 24 and 25 of the Act. Upon declaration made by the Director Industries, an execution application was filed before the learned District Judge for attachment of property hypothecated as security for re-payment of loan. On 23.2.1963, the learned District Judge, Lahore, passed an order for the attachment of property to recover the loan amount when objections were filed by the appellant. The objections were dismissed by the learned District Judges, on 11.1.1972 which led to the filing of the present appeal. In the course of hearing of this appeal, the appellant, without prejudice to their rights in the appeal, offered to pay the principal amount in instalments which offer was accepted and in terms thereof it was directed, vide order, dated 25.2.1989 that the principal amount of Rs. 20,000/- be paid in two equal instalments. The principal amount was paid by the appellants which was confirmed and this fact was recorded in the order, dated 6.3.1990. The dispute remained only for the payment of interest for which the appellant moved an application to the respondents for sympathetic consideration as they were minors and were not directly beneficiary of the loan. It appears from the various orders passed in this appeal, that number of directions were issued for disposal of the representation of the appellants but apparently, no written order was passed on the same. In this view of the matter, the Director Industries was directed to appear in the Court. The Director Industries informed this Court that though no formal order was passed on the application yet it was not within his jurisdiction to waive off the interest and that respondent would leave the matter for the Court to decide.
3. Learned counsel for the parties have been heard. The loan was allegedly obtained by Rashid Ahmed. It is claimed that proceedings for recovery were started by the Director Industries and a declaration was made which was sent to the learned District Judge, Lahore for execution purpose.
The objections raised by the appellant are that they were not heard, they were minors at the relevant time, no proper representation of the minors was made and that the proceedings were coram non judice. The learned District Judge was mainly influenced by the certain replies of Mst.
Inayat Begum, and therefrom it was assumed that the judgment-debtor was duly served. The question for consideration was that as to when notice was issued by the Director Industries for initiating proceedings under Sections 23, 24 and 25 of the Act, whether the appellants were minors and if so, was any order for appointment of guardian of appellants passed, whether the minors were properly and duly represented. Another question would be if any compromise on behalf of the minor without specific order of the Court declaring the compromise to be in the welfare of the minors could be binding upon them. Whether any alleged agreement on behalf of the minors in the absence of valid representation and without appointing guardian could be entbrced against them. Another question would be that if the declaration had been made by the Director Industries without adhering to the fundamental provisions of law and without ensuring that the minors were properly represented, could any presumption be attached to this declaration. These questions appear to have not been attended to by the learned District Judge, in the light of the law applicable on the subject nor the findings are based on any admissible evidence. Another question will be as to whether the compound interest or simple interest could be claimed. Whether any agreement for charging of compound interest existed and whether the charging compound in interest was permissible at the relevant time. Another question would be whether the minors who were not a direct judgment-debtors could be compelled to pay interest particularly when the principal amount had been repaid. Another question would be that as to whether the interest can now be claimed when the same has been challenged on the ground that the same would he violative of Islamic Injunctions.
Since all these questions have not been attended to, the case will have to be remanded.
4. For the reasons above, this appeal is allowed, the impugned order is set aside and the to the learned District Judge for decision on the objections of the appellants afresh on merits and in the light of the observation made herein above.
5. It may also be observed that the pendency of the objection petition shall not debar the respondent from deciding the representation of the appellant for waiver of interest by taking sympathetic and lenient view and also by taking in view the Injunctions of Islam.