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IN THE HIGH COURT OF SINDH AT KARACHI

PRESENT:

Mr. Justice Aqeel Ahmed Abbasi

Justice Mrs. Kausar Sultana Hussain

High Court Appeal No. 217 of 2019

Appellant: Farjan Khan

through Syed Haider Imam Rizvi, Advocate alongwith M/s. Syed Ahsan Imam Rizvi & Asadullah Shar, Advocates.

Respondent: Ghulam Waris

through Mr. Muhammad Ilyas Khan Tanoli, Advocate.

Date of Hearing: 08.11.2022.

Date of Short Order: 08.11.2022.

O R D E R

AQEEL AHMED ABBASI, J ; - Through instant High Court Appeal, the appellant has impugned order dated 03.05.2019 passed by learned Single Judge in Execution No.38/2012 (Suit No.247/2011), whereby, learned Single Judge has directed the Nazir of this Court to attach the immovable properties mentioned in the Para 9 of the Execution Application and also to submit an up-to-date report as to the markup payable in view of the order dated 21.09.2015 passed by the Divisional Bench of this Court in HCA No.56/2013.

2. It has been contended by the learned counsel for the appellant has been that impugned order dated 03.05.2019 has been passed by the learned Single Judge in the aforesaid Execution Application without hearing the counsel for the appellant, who was busy before another bench of this, therefore, the entire facts and the orders passed in the instant matter could not be taken into consideration. According to learned counsel for the appellant, as per compromise order, directions issued by the Divisional Bench of this Court in the aforesaid High Court Appeal were duly complied with for the purposes of satisfaction of the decree. According to learned counsel, only an amount of Rs.11.26,880/- remains payable to the respondent/Decree Holder, however, learned Executing Court, without providing opportunity of being heard to the appellant, has been pleased to issue directions to the Nazir to attach the immovable properties of the appellant/J.D. as mentioned in Para 9 of the Execution Application which order, according to learned counsel for the appellant, is illegal and contrary to the record. Per learned counsel. pursuant to Court's order dated 22.05.2019 passed in the instant High Court Appeal the appellant was directed to deposit an amount of Rs.1,126,860/- with the Nazir of this Court According to learned counsel for the appellant, while referring to the Nazir's report a statement of calculation submitted by the respondent to the Nazir was against the order dated 21.09.2015 passed in HCA No.56 of 2013. however, the learned Singled Judge has erred by not appreciating the fact that the appellant have filed his objections to Nazir report relating to calculation of the markup, which is still pending adjudication and has not been decided till date. According to learned counsel, learned Single Judge has erred in fact and law by not appreciating the fact that period of default by the appellant is only seven months and four days from 24.08.2012 till 28.03.2013, therefore, exorbitant amount of markup cannot be granted beyond the said defaulted period of the outstanding amount not passed in HCA No.56 of 2013, therefore, order passed by the learned Single Judge directing the appellant to deposit Rs.85,60,000/- is erroneous in law and facts of the instant case. Moreover, according to learned counsel, the order of attachment of the immovable properties of the appellant without providing opportunity of being heard to the appellant, who has already made payment of entire principal amount of Rs.1,40,00,000/- in compliance of the order dated 18.03.2013 passed by the Executing Court. Per learned counsel, the impugned order has been passed without appreciating the facts of the case and the orders already passed by the Divisional Bench of this Court in HCA, whereas, no opportunity of being heard provided to the appellant while passing the harsh order of attachment of immovable properties in violation of principle of audi alteram partem and principle of natural justice. It has been prayed that the impugned order may be set-aside.

3. Conversely, learned counsel for the respondent submits that the impugned order has been passed by the learned Single Judge keeping in view the admitted default on the part of the appellant/J.D., who fails to make payment of the amount pursuant to judgment/decree as well as the consent order passed by the Divisional Bench of this Court in HCA No.56 of 2013 does not suffer from any illegality. It has been contended by the learned counsel for respondent that the matter of outstanding markup stands already decided by the learned Divisional Bench of this Court in HCA No.56 of 2013, therefore, proceeding ought to be made for the satisfaction of the decree accordingly. While concluded his arguments, learned counsel for the respondent has prayed that since ground has been made out in the instant High Court Appeal requiring this Court to interfere with the impugned order, therefore, instant High Court Appeal may be dismissed.

4. Heard the learned counsel for the parties, perused the record and the impugned order passed by the learned Single Judge as well as the orders passed by the Divisional Bench of this Court in HCA No.56 of 2013, with their assistance. From perusal of the consent order passed in High Court Appeal No.56/2013 as reproduced by the learned executing Court in the impugned order dated 03.05.2019, it appears that in view of the compromise reached between the parties directions were issued to the executing Court to allow the markup as per decree after calculating the markup in terms of the decree from the date of default till the entire decreetal amount was paid i.e. on 28.03.2013 at the rate of 15% per month on the defaulted amount, however, the Divisional Bench of this Court in the aforesaid High Court Appeal did not mention the amount of outstanding markup, as the same was required to be calculated by the executing Court in the aforesaid terms. Record further reveals that prior to passing of the impugned order dated 03.05.2019 the executing Court was pleased to pass various orders directing the Nazir to calculate the markup in view of the order passed in the High Court Appeal No.56/2013, however, instead of making any calculation himself, Nazir has relied upon the statement of the calculation filed by the respondent. However, inspite of the fact that the appellant has filed his objection before the Nazir to such calculation as submitted by the respondent. It is an admitted position that pursuant to the order passed by the Divisional Bench of this Court in High Court Appeal No.56/2013 the markup was allowed only on the defaulted amount which as per judgment and decree passed to Rs.12,00,000/- only, therefore, the amount of markup first to be calculated from 24.08.2012 till 28.03.2013 for defaulting period of seven (07) months and four (04) days. The appellant has made calculation of such defaulted amount of markup in ground “D” of the memo of instant appeal, according to which, an amount of Rs.12,84,000/- is the amount of markup for the defaulting period as per order passed by the Divisional Bench of this Court in High Court Appeal No.56/2013. Learned counsel for the respondent was confronted to assist this Court as to whether the period of default and the amount of markup so calculated by the appellant is erroneous or contrary to the judgment and decree, or earlier orders already passed by the executing Court, however, instead of pointing out any factual error in such calculation of markup for the defaulting period. Learned counsel for the respondent insisted upon calculation submitted by the respondent before the Nazir, which prima facie, does not reflect the correct defaulting period and calculation of markup, whereas, no justification for calculating the exorbitant amount of markup contrary to the record and the decision of the Divisional Bench of this Court in the High Court Appeal No.56/2013 has been submitted.

5. In view of hereinabove facts and circumstances of the instant case, we are of the considered opinion that the learned executing Court was not justified to pass the impugned order without hearing the counsel for the appellant and referring to the judgment and decree, the order passed by the Divisional Bench of this Court in HCA No.56/2013 and the earlier orders already passed by the executing Court, requiring the Nazir to make proper calculation of the defaulting period of markup. We may further observe that the order of the executing Court directing the Nazir to attach immovable property mentioned in Para 9 of the execution application, besides being harsh is also contrary to the record, whereas, the learned executing Court also failed to appreciate that the decreetal amount has already been paid by the appellant as per consent order passed by the Divisional Bench of this Court in High Court Appeal No.56/2013, whereas, only the amount of markup for defaulting period to be calculated by the Nazir as per Court’s directions was under dispute. Accordingly, the impugned order dated 03.05.2019 passed by the learned executing Court in Execution Application No.38/2012 was set aside vide our short order dated 08.11.2022 and above are the reasons of such short order.

J U D G E

*Farhan/PS*