' MIAN HAMID FAROOQ, J.---Mst. Nusrat etc, appellants-objectors, through the filing of the present appeal, under section 12 of the Banking Companies (Recovery of. Loans) Ordinance, 1979 (since repealed ), have called in question orders dated 16-4-1994 and 16-6-1996, whereby the then Special Judge Banking accepted respondent-Bank's application for the correction of the decree and dismissed the objection petition, filed by the appellants, respectively.
2. Brief facts leading to the filing of the present appeal are that pursuant to passing a decree for the recovery of Rs.8,89,854, against respondents Nos.2 to 5, by the learned Special Judge Banking, vide judgment and decree dated 14-7-1981, the respondent-Bank, being the decree-holder, filed an execution petition for the realization of the decretal amount. During the execution proceedings, as per "fard talika", two properties, mentioned below, statedly, belonging to respondents Nos.5 and 3, were attached under the orders of the learned Banking Court:--
(i) Property No,17/A-III, Gulberg-III, Lahore (hereinafter referred to as property No,1).
(ii) One half portion of Jamil Building, Hide Park, Lahore (hereinafter referred to as property No,2).
3. On 29-4-1984, one Mst. Surriya Begum filed an objection petition thereby claiming the ownership of property No,1, while Mst. Nusrat etc., the appellants, on 15-5-1984, filed a separate objection petition, regarding property No,2, asserting therein that the said property was purchased by them through five sale-deeds, thus, in both the objection petitions, it was prayed that the properties may be released from attachment. As regards objection petition, filed by Mst. Surriya Begum, the same was dismissed by the learned Banking Court vide order dated 12-11-1984, however, on an appeal filed by her before this Court, the case was remanded to the learned Judge Banking Court, with the directions to decide the objection petition, afresh, after framing of issues and recording evidence of the parties. In post-remand proceedings, Mst. Surriya Begum filed an application, before the learned Special Judge Banking, averring therein that a compromise has been effected; Mst. Surriya Begum has paid, a sum of Rs.9 lac. Towards the satisfaction of the decretal amount and consequent to that the decree holder-respondent-Bank has released property No,
1. Consequent to that statements of the parties were recorded by the Executing Court and ultimately the learned Banking Court accepted the objection petition of Mst. Surriya Begum, released property No,1 and ordered to consign the execution application to record vide order, dated 30-6-1991. However, property No,2 remained under attachment even after the satisfaction of the decree, as mentioned above.
4. On 27-1-1993, respondent-Bank filed an application, under section 152 read with sections 151 and 153, C.P.C., for the correction of the decree, dated 14-7-1981 (which stood satisfied, as noted above), so as to include, in the decree the relief of future interest from 23-8-1980, till realization of the decretal amount at the rate of minimum 14% per annum with quarterly rests before the learned Banking Court. The said application was allowed and the learned Banking Court granted the interest, from the date of institution of the suit at the contracted rate or at the rate of 2% above the Bank rate, whichever is the higher, till the final realization of the decretal amount, and also ordered that the same be incorporated in the decree sheet vide order, dated 16-4-1994 and consequent thereto an amended decree, of even date, was drawn. It appears from the record that after the amendment of the decree, no fresh execution application was filed and the respondent-Bank, in its own wisdom deem it proper to proceed with the erstwhile execution petition, which was consigned to record vide order dated 30-6-1991. Later on, the learned Banking Court dismissed the objection petition, filed by the appellants, vide order dated 16-6-1996, hence, the present appeal challenging both the orders dated 16-4-1994 and 16-6-1996.
5. Learned counsel for the appellants has contended that the total decretal amount was liquidated by Mst. Surriya Begum, on 13-6-1991, which was recorded by the learned Banking Judge in his order dated 30-6-1991, thus, the decree stood satisfied and the execution petition was consigned to record deemed to be satisfied, therefore, the objection petition, filed by the appellants; could not be dismissed inasmuch as the learned Executing Court, after the passing of order dated 30-6-1991, had become functus officio. It has further been contended that the order dated 16-4-1994, is also not sustainable in law as the same was passed at the back of the appellants and without affording any opportunity of hearing to them.
' Conversely, the learned counsel for the respondent-Bank, while refuting the aforesaid contentions and supporting the orders under challenge, has submitted that the instant appeal, filed on 1-9- 1996, challenging the order dated 16-4-1994, is grossly barred by time.
6. Despite service, nobody has entered appearance on behalf of respondent No,2 and legal heirs of respondents Nos. 3 to 5, thus, respondent No,2 is proceeded ex parte and this Court, under Order XXII, Rule 4, C.P.C., can proceed with the present appeal notwithstanding the death of the aforementioned respondents.
7. Firstly, adverting to the objection raised by the learned counse1 for the respondent-Bank, regarding the appeal being barred by time with reference to order dated 16-4-1994. We have examined the record and find that the execution petition was consigned to record, on 30-6-1991, on the ground that the decretal amount was paid to the respondent-Bank. Later on, after the expiry of nearly one and a half years, the respondent-Bank, on 27-1-1993, filed an application under section 152/153, C.P.C., seeking correction of decree, in which, admittedly, no notice was issued to the appellants, although prior to that appellant's objection petition was pending. Furthermore, the learned Executing Court accepted the said application, though the same was resisted by the judgment debtors only, thereby allowing the interest to the respondent-Bank from the date of the institution of the suit till the realization, vide order dated 16-4-1994, .At the back of the appellants and without notice to them. Undoubtedly, the said order prejudiced the interest of the appellants and they were at least entitled for a notice of this application and right of hearing before passing order dated 16-4-1994, thus, it cannot be said that the order for the amendment of the decree was passed after hearing the appellants or they were aware about passing of the order.
7. Even otherwise, we feel that order dated 16-4-1994, is without jurisdiction, as the learned Banking Court, after recording the satisfaction of the decree, on 30-6-1991, had become functus officio and did not have any jurisdiction to entertain the application under section 152/153, C,P.C. And that too after the lapse of 11-1/2 years after the passing of the decree. However, when the learned counsel for the appellants came to know about that order, they filed the present composite appeal, thereby also challenging the order dated 16-4-1994. In view whereof, it cannot be legitimately argued that the appeal against order dated 16-4-1994, is barred by time, thus, the objection raised by the learned counsel, in this regard, is repelled.
8. Upon the examination of the provisions of section 152, C.P.C we find that only arithmetical and clerical mistakes or errors arising due to accidental slip or omission, in judgment can be corrected.
Provision of section 152, C.P.C., is not at all applicable in the present case, as the relief sought for by the Bank, through the filing of application under section 152, C.P.C., can neither be termed as clerical/arithmetical mistakes in the judgment/decree nor arose from any accidental slip or omission. We feel that the learned Banking Court consciously and intentionally, while passing the decree dated 14-7-1981, did not grant the relief of interest, from the date of the institution of the suit till the realization, to the respondent-Bank. There cannot be any cavil to the proposition that the plaintiff could claim number of reliefs, but the Court is not bound to decree all the claims, while granting a decree. Placing the provision of section 152, C.P.C. In juxta-position with the facts of the present case and the contents of the application, filed under section 152, C.P.C., it becomes crystal clear that the prayer for adding the relief for the grant of interest, from the date of the institution of the suit till the realization in the decree, does not fall within the purview and scope of section 152, C.P.C. In the present set of circumstances, to our mind, when the said relief of interest was not granted to the respondent-Bank, it should have assailed the said judgment, so far as it related to the non-awarding of interest, within the limitation period, before higher forum, but in no way the respondent-Bank was competent to file an application under section 152, C.P.C. To get the said relief. It has been held in Muslim Commercial Bank Ltd. v. Continental Engineers Ltd. And others PLD 1992 Lahore 261, that where the alleged mistake was not clerical or arithmetical or had not arisen from any accidental slip or omission, Court had no jurisdiction even under section 151, C.P.C. To correct the same and in such cases the remedy of the aggrieved party was to prefer appeal or if permissible to apply to the Court by way of review. In the above perspective, we are of the considered view that the provisions of section 152 or 153 C.P.C. Are not attracted in the present set of circumstances. The learned Banking Court was not empowered to award the relief of interest, which was originally refused by the Court while passing the decree, but granted, to the respondent-Bank under the garb of an application under sections 152 and 153, C.P.C.
9. Upon the perusal of record, we find that, on 10-6-1991, one Mst. Surriya Begum filed an application before the Banking Court, claiming to have paid a sum of Rs,9,00,000 to the respondent-Bank as against the decretal amount of Rs.8,89,854. On 30-6-1991, statements of the representative and the learned counsel of the Bank, were recorded, wherein, they stated that Mst. Surriya Begum has paid a sum of Rs.9,00,000, on 30-6-1991, that Bank has left with no claim against the said objector and they have no objection to the release of her attached property (property No,1). Consequent to the recording of the statements, on the same date, the learned Banking Court not only allowed the objection petition and released her attached property (property No,1), but also ordered for consigning the execution application to record deeming the same being satisfied, vide order dated 30-6-1991. Needless to mention that the said order was passed in the presence of the learned counsel for the respondent-Bank as well as its representatives, but they raised no objection to the said course of action. Had the Bank any objection for consigning the execution application to record, it should have immediately agitated the matter, but instead of doing so, they allowed the execution application to be consigned to record and did not, even at that juncture, point out that the relief of interest may be granted to them. Subsequently the respondent-Bank filed an application, under section 152 read with section 151, C.P.C., on 27-1-1993, i.e. After the lapse of more than 1-1/2 years, seeking the relief of interest. It is, however, not understandable as to how the said application was entertained by the learned Banking Court, when it, after consigning the main execution application to record, on 30-6-1991, had already become functus officio and the decree stood satisfied. It has been held in the aforementioned judgment of Muslim Commercial Bank Limited that after the satisfaction of the decree, the Court becomes functus officio, could no longer entertain an application for the amendment under section 152, C.P.C. And the Court would not be justified in making a correction by invoking section 152, C.P.C., after the satisfaction of the decree, as the decree would be deemed to be dead, for all intents and purposes.
10. There is another aspect of the case. The decree for a sum of Rs.8,89,854, in this case, was passed, on 14-7-1981, the execution application was preferred by the respondent-Bank, on 31-10- 1982, and the execution petition was consigned to record, on 30-6-1991, while application for the amendment in the decree was filed, on 27-1-1993. It flows from the above narrative that the application for the amendment of decree was filed after more than 11-1/2 years from the date of the passing of the decree and thus, the said application was belatedly filed and was grossly barred by time. In this case, as the application was filed after more than 11-1/2 years, therefore, the same was grossly barred by time and deserved to be out rightly rejected by the learned Banking Court.
Furthermore, after the passing of the decree in the year 1981, the respondent-Bank did not raise such a plea before any forum for very long time and for the first time they thought about raising this point in the year 1993, when the decree already stood satisfied. We are of the view that the respondent-Bank by their conduct were estopped from filing such an application, moreso when the matter had attained finality.
11-A. It has been held in Banque Indo-Suez v. Rehmani Brothers 1993 CLC 1527 that where a Court had not passed any order or decree intentionally but due to oversight or omission, only in that case a party is entitled to file an application under section 152, C.P.C., but when the decree is granted intentionally, the provisions of section 152, C.P.C. Would not be attracted.
12. We find from the record that at the time of passing of the decree, the learned Banking Court, although decreed the respondent-Bank's suit, yet did not grant the relief of interest from the date of the filing of the suit till the realization, despite the fact that a prayer for future interest was made by the respondent-Bank in the suit. Section 34(2), C.P.C. Provides that where decree was silent with respect to payment of future interest, the Court shall be deemed to have refused such interest. In this case, according to the respondent-Bank, it had prayed for the grant of future interest, yet we find that at the time of passing of the decree, the learned Banking Court did not grant the said portion of the claim, thus, according to law the said relief was refused. In this regard, cases reported as Messrs M. Y. Malik & Company and 2 others v. Messrs Splendours International through M.D. 1997 SCM R 309 and Trade and Industry Publications Ltd. v. Universal Blocks 1986 CLC 1143 can be referred.
13. Now when the Court refused to award the relief of interest to the Bank, then, to our mind, the proper course open for the Bank was to file an appeal before the appellate forum against non- awarding of interest. Admittedly, they did not assail the said portion of the judgment before the Appellate Court, thus, they have missed the bus and the presumption would be that they acquiesced over the matter, subsequently estopped to raise the said claim through ancillary proceedings and the said judgment/decree stood finalized. In this case, the respondent-Bank, after the expiry of the period of limitation for filing an appeal, after the lapse of eleven and a half years and after the satisfaction of the decree, filed an application under section 152, C.P.C. For the correction of the decree, which, surprisingly, was erroneously allowed by the Banking Court, in complete ignorance of the facts of the case and law on the subject. To say the least the approach of the learned Executing Court was perfunctory and cannot be countenanced under any stretch of imagination.
14. Now adverting to the order dated 16-6-1996, whereby the objection petition filed by the appellants was dismissed. Upon the examination of the said order, we find that the appellant's objection petition was dismissed merely on two grounds, i.e. Firstly, that the objection petition has not been made within one year of the attachment of the property and secondly, that the objection petition is mala fide. To our mind, both the grounds are not sustainable as they do not born out from the record. Coming to the first ground, we have examined the record and find that learned Banking Court, after entertaining the execution application issued warrants of attachment of properties, on 14-9-1983, for 26-11-1983 and office issued these warrants, on 19-11-1983, for the said date. On the reverse side of warrants, we find the report of the bailiff stating therein, that property No,2 has been attached, but the said report is undated. At the best, it can be presumed that this report was made in the last week of November, 1983, which appears to have been received by the Court, on 3-12-1983. Admittedly, the objection petition was filed by the appellants, on 15-5-1984. It flows from the above narrative that property No,2 was attached in the last week of November, 1983 and the objection petition was filed, on 15-5-1984, i.e. Within a period of six months from the date of attachment of the property. It has been mentioned in the said objection petition that the appellants came to know, on 25-4-1984, to which there is no rebuttal. Additionally, the Bank in its reply did not even plead that the objection petition, filed by the appellants is barred by time. It obviously manifests that it is clear case of misreading of the record by the learned Executing Court, who in ignorance of the record of the case has erroneously held that the objection petition has not been filed within a period of one year.
15. Coming to the next ground. The decree was passed, on 14-7-1981, the execution petition was filed, on 31-10-1982 and property No,2 was attached in the last week of November, 1983, while the appellants purchased the property through five sale-deeds dated 27-3-1983, and the mutations were also attested in their favour on 30-4-1983. It flows from the above that the appellants purchased the property before its attachment and the said property was not admittedly, mortgaged, thus, it cannot be said that the transfer in favour of the appellants by the original owner of the property was on account of any mala fide action. Order dated 16-6-1996, is perverse, self-contradictory and to our mind the same was not only legally passed, but is the outcome of misconception and misreading of the record of the case.
16. There is another interesting feature of the case. As noted above, the first execution application was filed by the respondent-Bank, on 31-10-1982, which was consigned to record, being satisfied, on 30-6-1991. The respondent-Bank filed an application under section 152, C.P.C., on 27-1-1993 and on the same day filed an amended execution application, thereby praying for the realization of the decretal amount together with interest and costs. Surprisingly, the decree was ordered to be amended, on 16-4-1994, whereby the respondent-Bank was allowed the interest from the date of the institution of the suit till realization, but the respondent-Bank in anticipation thereof had already filed a second execution application on 27-1-1993, thereby praying for the realization of the future interest, which at that point of time was not granted and there was no executable decree in existence in favour of the respondent-Bank. Additionally, at the time of the filing of the second execution application, on 27-1-1993, the respondent-Bank had already received a sum of Rs.9,00,000 as against the decretal amount of Rs.8,89,854, but in the second execution application the respondent-Bank failed to mentioned about this fact and incorrectly averred that a sum of Rs.8,89,854 together with interest and costs, is still outstanding against the judgment-debtors.
These facts speak volumes of mala fide on the part of respondent-Bank and its functionaries.
17. The decree was ordered to be amended, vide order dated 16-4-1994, and thereafter no fresh execution application was filed by the respondent-Bank. It is, however, not understandable as to how without filing a fresh execution application, after the amendment of the decree, the learned Banking Court proceeded with the execution of the amended decree, as there was none before the Court, as the first application was consigned to record, on 30-6-1991, and the second application filed on 27-1-1993, was premature.
18. In the above perspective, we have examined both the orders and find that the learned Banking Court, while rendering the impugned orders, had completely misdirected itself and the same were passed in complete oblivion of the law and the facts on record, thus, to our mind, the same are not sustainable and deserve to be set aside.
' Upshot of the above discussion is that the present appeal is allowed and both the impugned orders dated 16-4-1994 and 16-6-1996, are set aside with no order as to costs. The result would be that the Bank's application for the correction of the decree stands dismissed, while objection petition, filed by the appellants, is allowed and consequent thereto the attached property stands released.