JUDGMENT SHEET

IN THE HIGH COURT OF SIND AT KARACHI

1^st Appeal No.73 of 2007

Present

Mr. JUSTICE Khilji Arif Hussain

Mr. JUSTICE Arshad Siraj Memon

Date of hearing                     15/04/2009

            Mr. Sultan A. Allana advocate for the appellant.

            Mr. Munaware Ghani advocate for respondent Nos. 2 & 3.

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Khilji Arif Hussain, J:  Aggrieved by order dated 29/10/2007 appellant preferred this appeal by which learned Banking Court No.II, recorded satisfaction of the decree.

            Brief facts for the purpose of deciding appeal are that appellant Bank file Suit for recovery of Rs.25,76,040.44 against respondents No.2 & 3 under Banking Tribunal Ordinance. The suit was decreed on 17.07.1994 in the sum of Rs.17,91,406/- against respondents No.2 and 3 jointly and severally. The appellant filed Execution Application No.148/1997 which was withdrawn on 03.08.2000. thereafter filed another fresh application being  Ex. Application No.49/2001 for recovery of Rs.38,80,225.50. Hon’ble Banking Court put mortgage property for auction and a sum of Rs.22,68,000/- was deposited in Court on confirmation of sale. After confirmation of sale, decree-holder was directed to provided mode of assistance  and on his failure to provide the same, satisfaction of the decree was recorded on  29/10/2007, which order has been impugned, by this appeal.

                        Mr. Sultan A. Allana learned advocate for the appellant, Mr. Munaware Ghani learned  advocate for respondent Nos. 2 & 3, and perused the record.

            From perusal of the record, it appears that considerable amount in terms of the decree is still due and payable by judmgment debtor / respondent, and learned  Banking Court despite that the decree had not been satisfied  recorded the same without assigning any reason. If for any reason, decree-holder  failed to provided mode of assistance to the Court then Banking Court can dismiss the execution application for non-prosecution but cannot record satisfaction of the decree. The order on the face of is bad in law and accordingly set aside.

            The appeal is allowed, and matter is remanded to the Banking Court-II for deciding according to law.

                                                                                                            JUDGE

                                                                        JUDGE

1^st Appeal No.73-07