MAULVI ANWARUL HAQ, J.-- This .EFA arises out of proceedings for execution' of a decree passed in a suit filed by the respondent-bank against, inter alia, the appellants. It will be appropriate, in order to understand the controversy between the parties, to refer to the plaintiff's case to indicate the finances for the recovery whereof the suit was filed. These are detailed in pare-2 of the plaint and are as follows:--
(i) Rs. 27, 15,000/- disbursed vide a sanction letter dated 23.12.1987; Additional Financial assistance of Rs. 30,00,000/- vide sanction letter dated 20.6.1988;
(iii) financial assistance of Rs. 15,00.000/- vide sanction letter dated 4.2.1989.
2. The appellant then approached the executing Court with an application. It was stated in the said application that out of decretal amount of Rs. 8510596/- the appellant has paid Rs. 50,00,000/- through the aforementioned three pay orders and that they are ready to pay the balance amount of Rs. 33.32,100/- as also the amount of costs i.e. Rs. 21504/-. The following instruments were filed alongwith application:-
(A) Deposit at catl dated 28.7.2000,' in the sum of Rs: 21504/-;
(B) Deposit at call in the sum of Rs. 1430596/ dated 28.7.2000;
(C) Pay order dated 29.7.2000 in the sum of Rs. 16,25,00/- ; and
(D) Pay order dated 29.7.2000 in I he sum of Rs. 4,55,000/-
(E) A prayer was accordingly made for certifying the satisfaction of the decree for payment of, all the amount due under the same. This application was taken up by the Banking Court on 7.8.2000.
The respondent bank took the position that out of said amount a sum of Rs. 20,80,000/- has been adjusted against the decretal amount while a sum of Rs. 29,20,000/- has been adjusted against some other account. Learned Judge, Banking Court proceeded to dismiss the application on the same day.
3. The present EFA came up for limine hearing on 15.8.2000 when pre-admission notices were ordered to be issued. Pursuant to the same, Mr. Qaisar Javed Mien, learned counsel for respondent-bank has put in appearance. Necessary records are available having been appended with this EFA. We, accordingly ntend to taken up the main appeal and decide the same.
4. Learned counsel for the appellants argues with reference section 59 of the Contract Act, 1872 that since the appellants ad duly intimated the respondent-Bank as to how the payments ade by them are to be applied, the Bank had no lawful authority o apply the same otherwise. Learned counsel for the respondent Bank, on the other hand, argues that, the appellants owe other debts as well. It was in the discretion' of the Bank to apply the payments made by the appellants as it thought fit to its best advantages.
5. We have gone through the records appended with this FA with the assistance of the learned counsel for the parties. We nd that there is no dispute that the payments were in fact made y the appellants as stated in detail by us above. It is also not the ase of the Bank. Either before the Learned Judge Banking Court or before us that the said payments were not accepted by it. Imilarly, it is also admitted before us that some other debts are Iso due to the respondent bank. We have also stated above that e appellants had duly intimated the. Bank that all the three payments were to be applied to the discharge of the debts due to e Bank by the appellants against the said financial assistance/working capital accounts. In the case of the first payment of. Rs. 10,00,000/- made vide pay order, dated 6.10.1999 sent alongwith the said letter it was stated that in ase the , proposal being made in the letter covering the entire abilities is not accepted then the amount will be adjusted against working capital account. So far as the pay orders dated 16.11.1999 are concerned we find that it was indicated in the very instruments that the amounts are to be adjusted against the working capital accounts, numbers whereof were duly indicated on the said instruments.
6. We may reproduce here section 59 of Contract Act, 1872:-- "59. Application of payment where debt to be discharged is indicated. Where a debtor, owing several distinct debts to one person, makes a payment to him, either with express intimation, or under circumstances implying that the payment is to be applied to the discharge of some particular doubt, the payment, it accepted must be applied accordingly".
A bare reading of the said provision of law would show that in case the following conditions are met then the payment has to be applied as indicated by debtor.
(a) Making of payment to the creditor by the debtor;
(b) Indication either expressed or implied that the payment is to be applied to discharge of particular debt.
(c) Acceptance of payment.
7. We have no doubt in our mind that under the sai provisions of law a debtor has vested right to indicate that th payment is to be applied towards the liquidation of a particular debt. We also find that the said provision of law lays down mandatory term that where a payment is made with the sai indication and the creditor accepts the same, then the payment I to be applied according to the indication made by the debtor Reference be made to the case of Munshi. Emamuddin Ahmad reported as PLD 1952 Dacca 279, wherein it was observed tha where a money has been expressly paid for a specified object an it was received and acknowledged on that account, there is n power on the part of either of the parties to the transaction without the consent of the other, to vary the effect of the transaction of altering the appropriation in which both originally concur.
8. We do find that all the conditions set out in section 59 of the Contract Act, 1872, exist in the present case. The appellants had made the payment indicating the particular debt for the discharge whereof the payments were to be applied and the payments were accepted by the respondent bank. Learned Judge Banking Court appears to have acted on the assumption that notwithstanding the pleas raised before him by the judgment debtor, the decree holder Bank had the discretion to apply the payments to the discharge of, any other debt. This is not to be as it is only when the debtor fails to indicate the manner in which the payment is to be applied that the creditor has a discretion to apply the payment to any debt actually due and payable to him by the debtor.
9. As a result of the above discussion, we hold that the payments made by the appellants could only be applied for the discharge of the debts against the working capital accounts or in other words the decretal amount due under the decree under execution. Learned counsel for the appellants contends that the balance amount due under the decree including the costs have since been paid. This fact has not been denied by the learned counsel for the respondent-bank.
We, therefor, find that the entire decretal amount including costs stand paid by the appellants to the respondent-bank and the decree stands satisfied. The execution petition is accordingly dismissed as having been satisfied.