' MIAN HAMID FAROOQ, J.---The appellant/ judgment-debtor, through the filing of the present appeal, has called in question order, dated 5-4-2002, whereby the learned Judge, Banking Court, while observing that "he can approach the Bank Authorities for settlement before the date of auction", dismissed the objection petition, filed be the appellant.
2. Facts, necessary for the decision of the present appeal are that the appellant obtained some financial facilities from the respondent-Bank, he committed default and thus the respondent-Bank obtained a decree for the recovery of Rs,2,33,012 alongwith costs, passed by the then Banking Tribunal, vide judgment and decree, dated 3-5-1995. It appears that the decree could not be satisfied, the respondent-Bank filed an execution petition before the learned Banking Court and the appellant, statedly, deposited some amounts towards the liquidation of the decretal amount.
Ultimately, in the execution proceedings, the learned Banking Court, one, 23-11-2001, directed the appellant to pay a sum of Rs,2,18,160 as was allegedly due . Until 15-3-2001. The appellant filed an objection petition before the learned Banking Court disputing the correctness of the said amount, but his objection petition was dismissed by the learned Banking Court vide order, dated 5-4-2002, hence, the present appeal.
3. This Court, while admitting the present appeal for regular hearing, observed that the respondent-Bank/ decree-holder in its reply, submitted on 12-11-2001 before the learned Banking Court, has acknowledged the payment of Rs,1,33,221 and thus, directed the appellant to deposit of a sum of Rs,1,26,062.
4. Learned counsel for the appellant has contended that although the appellant was to deposit a sum of Rs,1,26,062 only, as directed by this Court vide order, dated 5-4-2002 and that was the only amount "due" against the appellant, as per the terms of the decree under execution, yet the functionaries of the respondent-Bank made the appellant to pay the total decretal amount of Rs,2,46,435 under coercion, duress and under the threat of sale of mortgaged property and thus, now the total amount which has been paid by the appellant comes to Rs,3,79,656, whereas he was only liable to pay the decretal amount of Rs,2,48,225. Conversely, the learned counsel for the respondent-Bank has raised an objection regarding the maintainability of this appeal. However, the learned counsel, under the instructions of the Manager of the respondent-Bank, has admitted that the Bank uptil now has received total amount of Rs,3,24,115 from the appellant.
5. As regards the objection raised by the learned counsel regarding the maintainability of this appeal, suffice it to say that the appellant filed an objection petition before the learned Banking Court, for the investigation of his claim, which was dismissed by the learned Banking Court, against which order the present appeal has been preferred. It has been provided under section 22(6) of Ordinance XLVI, 2001, that no appeal, review, revision shall lie against any interlocutory order of the Banking Court other than an order passed under subsection (11) of section 15 or subsection (7) of section 19. We are of the view that the learned Banking Court dismissed an objection petition, filed by the appellant, in exercise of its powers under section 19(7) of Ordinance, 2001, therefore, the present appeal, under section 22(6) of Ordinance, 2001, is competent. The contention of the learned counsel is misconceived and misdirected, hence, repelled. It may be observed that the objection regarding the non-maintainability of the appeal has been taken on behalf of the respondent-Bank only to swa llow the amount, which has excessively been paid by the appellant and unauthorisedly received by the respondent-Bank, which is more than the decretal amount.
6. We have examined the decree, which is under execution before the learned Banking Court, and find that a decree for a sum of Rs,2,33,012 together with costs of Rs,15,213 was passed against the appellant by the then Banking Tribunal, Lahore. It is evident from the perusal of the decree-sheet that no other relief was granted to the respondent-Bank, except the one mentioned hereinabefore, thus, the respondent-Bank is only entitled to recover the total sum of Rs,2,48,225 from the appellant. There is no cavil to the proposition that the Executing Court cannot go behind the decree and is under a legal obligation to execute the decree according to its terms. As noted above, the respondent-Bank is only entitled to recover amount of Rs,2,48,225 and they cannot be allowed to take even a single penny, from the appellant, in excess of the decretal amount.
7. According to the learned counsel, the appellant has paid a total sum of Rs,3,79,656 out of which a sum of Rs,1,33,221 was paid during the pendency of the execution petition and sum of Rs,2,46,435 was deposited by him under the threat of sale of his mortgaged property, while the appellant was only to pay a sum of Rs,2,48,225 and, therefore, according to the calculation of the appellant he has excessively paid a sum of Rs,1,31,431. As noted above, the respondent-Bank admits that it had received a total sum of Rs,3,24,115 from the appellant as against the decree of Rs,2,48,225. When the learned counsel was asked to show the receipts for the deposit of the amount of Rs,3,79,656, he showed his inability and finally agreed that he admits the payment of amount of Rs,3,24,115, as acknowledged by the learned counsel for the respondent-Bank. In response to a question by this Court, as to how additional amount than the decretal amount has been recovered from the appellant, the reply of the learned counsel of the bank was that they are also entitled to the expenses incurred by them in the execution proceedings. However, on the query made by this Court, the learned counsel could not point out any case-law on the subject or any order of the Court thereby authorizing the respondent-Bank to recover the said amount.
8. In the above perspective, as noted above, the respondent-Bank, according to the terms of the decree, dated 3-5-1995, was only entitled to recover a sum of R.2,48,225 whereas according to their own stance, they have received a sum of Rs,3,24,115, thus, admittedly, they have recovered an excess amount of Rs,75,890, which they are not entitled to retain. To our mind, the said amount has illegally been retained by the respondent-Bank and the appellant is entitled for the refund of the said amount: This sort of highhandedness on the part of a Financial Institution cannot be countenanced under any stretch of imagination. We are inclined to accept the appeal and also to direct the respondent-Bank to immediately refund a sum of Rs,75,890 to the appellant without any further delay. Confronted with this, the learned counsel has requested that a period of 15 days may be allowed to them to comply with the directions of this Court.
9. Upshot of the above discussion is that the present appeal is allowed and the impugned order, dated 5-4-2002 is hereby set aside with no order as to costs. The result would be that the respondent-Bank, as undertaken by the Manager of the respondent-Bank, who is present in this Court, shall refund/repay a sum of Rs,75,890 to the appellant within 15 days from today thereafter to intimate to this Court through the Deputy Registrar (Judicial).