LEGAL Matters

22/05/2026

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21/05/2026

21/05/2026

Ex*****on of Decree and Sale with or without Intervention of the Court

Relevant Provisions:
Section: 19
Section: 18 & 15 FIO, 2001
Section: 48 CPC
Order XXI Rule 64 TO 118 CPC SALE

Order XXI Rule 64 -77
64 power to order property attached to be sold and proceeds to be paid to person entitled
65 Sale by whom conducted and how made (by Public auction)
66 Proclamation of sales by Public Auction (must notify time and place of sale), non compliance with Rule: 66 may vitiate the sale on account of material irregularity
[2015 SCMR 148, 2013 SCMR 1419]
67 Mode of making Proclamation
68 Time of sale; no sale takes place without court intervention (written) of JD
30 days ____ immovable property
15 days _____ movable property [Rule: 43 Attachment of movable property]
69 Adjournment or stoppage of sale
77 Sale by Public auction
78 Irregularity not to vitiate sale, but any person injured may sue
[N 1982 Civ 393, A 1930 L 236; A 1927 A 41]
In case of sale of movable property an irregularity in publishing or conducting of sale cannot be made a ground for setting aside sale
Sale can be set aside on proper grounds [2 B 258; A 1919 176]
Any person injured by any irregularity can sue to recover compensation of injury resulting [A 1930 O 94]

RELEVANT AUTHORITIES
2010 CLD 337
When the judgment of the Banking Court is pronounced and the decree drawn, the suit automatically stands converted into ex*****on proceedings without a need to file a separate application and no fresh notice is needed to be issued to the judgment debtor in this regard. The decree holder is required to file particulars of mortgaged, pledged or hypothecated properties and other assets of judgment debtor for consideration of the Banking Court and this case will be heard by Banking Court for ex*****on of decree. In case of appeal where the record of Banking Court has been summoned by the appellate court for the purpose of hearing appeal under section 22 of the Ordinance or otherwise. Copies of the decree and other property documents shall be retained by the Banking Court for purposes of continuing ex*****on proceedings. Under section 19(1) of the FIO, 2001 benefit of ex*****on of decree had been given to the decree holder and there was no need to exercise procedure of notice on the judgment debtor and the ex*****on proceedings should proceed for attachment.

Valuation of the property to be assessed by the consultants 2018 CLD 1181

Forms of Ex*****on
2011 SCMR 1675 Banking Court can execute decree by applying provisions of CPC or in the manner provided under any law for the time being in force or at request of decree holder which must be in writing.

2014 MLD 190 once the mode for ex*****on of the decree is chosen the same cannot be switched over to another by executing court much less unilaterally.

Ex*****on of decree through sale of property – Order XXI Rule 64, 65 & 66 CPC
2003 CLC 1693 where the decree is to be executed and satisfied through sale of immovable property belonging to judgment debtor there are three mandatory steps which the court in terms of Order XXI, Rule 64 to 66 is required to take. First, to pass a specific order for sale of property sought to be sold. Secondly, to appoint the officer who shall conduct sale. Thirdly to effect the conduct of sale in the manner prescribed; in Order XXI Rule 66 CPC they are mandatory in nature and without settling or causing a proclamation of intended sale in terms of said Rule by the court itself, no sale shall be considered to have been lawfully made. The word ‘cause’ appearing in Rule 66 Order XXI CPC requires a specific order of court which produces the effect of drawing the proclamation envisaging the terms and conditions of the sale. This includes the settlement of conditions, etc by court itself or to approve those filed by parties after hearing them.

2015 CLC 310 Terms of Sale were properly settled by Banking Court in terms of O. XXI Rule 64 & 66 CPC wherein amount of decree, market price and forced sale value were mentioned hence substantial compliance of law was done. Neither any enhanced offer received nor petitioner had given any offer nor had brought any other buyer or bidder for purchase of property in question. High Court declined to interfere in order passed by Banking Court n seeking possession of property in question during ex*****on of decree.

Sale by whom conducted and how made:
2005 CLD 1162 (DB) Save as otherwise prescribed every sale in ex*****on of decree shall be conducted by an officer of the court or by such other person as the court may appoint in this behalf and shall be made by public auction in prescribed manner.

2007 CLD 466 Ex*****on of decree has inherent jurisdiction to suo moto examine whether a serious attempt has been made to sell the property at reasonable price and that auction has been conducted in accordance with law.



Limitation to file Ex*****on
PLD 1990 SC 778 The period of limitation for ex*****on of decree commences from the date of decision of the court of last instance. The first application for ex*****on of a decree of a civil court would be governed by the residuary article 181 Limitation Act, 1908 prescribing a period of three years any subsequent or fresh application for ex*****on will be governed by section 48 CPC which provides period of six years from the date of decree sort to be executed.

Section: 48 CPC
2000 CLC 1216
PLD 1985 L 562; PLD 1980 Kar. 140
By virtue of the Ordinance XII of 1972 the limit of 12 years prescribed for presentation of fresh application has been reduced to 6 years. The decree holder has a vested right to seek ex*****on of decree and sought accordingly, the reduced outer period of limitation will not apply to decrees passed prior to the amendment.

2015 CLC 1833
2010 MLD 187
Subject to principles of res judicata and the bar of limitation as contained in section 48, a decree holder can represent any number of applications, for the purpose of obtaining satisfaction of the decree.

1991 CLC 81
1988 CLC 30
The decree confers upon decree holder the right to obtain to ex*****on, but no order for ex*****on of decree can be made if application is presented more than 6 years after certain date specified in this section.

Substantive application
PLD 1990 SC 778
Fresh application means an application for ex*****on after the disposal of earlier application for ex*****on.

1996 SCMR 759
Section 48 only prohibits the entertainment of fresh application of a substantive nature, and not that of fresh ancillary applications presented during the pendency of an ex*****on proceedings.

PLD 1976 Page 43
Where an ex*****on application is dismissed for no default on the part of decree holder or suspended or stayed, a subsequent application by him claiming the same relief.

2015 SCMR 1335
An application for revival or continuation of a prior application is not barred.

21/05/2026

Secondary Evidence
Relevant Articles Qanun-e-Shahadat Order, 1984
Article: 74 Secondary Evidence: Secondary evidence means and includes:
(1) Certified copies given under the provisions hereinafter contained;
(2) Copies made from the original by mechanical processes which in themselves insure the accuracy of the copy and copied compared with such copies;
(3) Copies made from or compared with the original;
(4) Counterparts of documents as against the parties who did not exclude them;
(5) Oral accounts of the contents of a document given by some person who has himself seen it.

Article: 75 Proof of documents by primary evidence. Documents must be proved by primary evidence except in the cases hereinafter mentioned.

Article: 76 Cases in which secondary evidence relating to document may be given. Secondary evidence may be given of the existence, condition or contents of a document in the following cases:
(a) Where the original is shown or appear to be in the possession or power of the person against whom the document is sought to be proved, or of any person out of reach, or not subject to, the process of court; or of the person legally bound to produce it; and when, after the notice mentioned in Article 77, such person does not produce it;
(b) When the existence, condition or contents of the original have been proved to be admitted in writing by the person against whom it is proved or by his representative in interest;
(c) When the original has been destroyed or lost, or when the party offering evidence of its contents cannot, for any other reason not arising from his own default or neglect, produce it in reasonable time;
(d) When due to volume or bulk of the original, copies thereof have been made by means of microfilming or other modern devices.
(e) When the original is of such a nature as not to be easily movable.
(f) When the original is a public document within the meaning of Article 85;
(g) When the original is a document of which a certified copy is permitted by this order; or by any other law in force in Pakistan, to be given in evidence;
(h) When the originals consists of numerous accounts or other documents which cannot conveniently be examined in court, and the fact to be proved is the general result of whole collection;
(i) When an original document forming part of a judicial record is not available and only a certified copy thereof is available, certified copy of that certified copy shall also be admissible as a secondary evidence;
In cases (a), (c ), (d) & (e), any secondary evidence of the contents of the document is admissible.
In case (b), the written admission is admissible.
In case (f) or (g), certified copies of the documents, but no other kind of secondary evidence is admissible.
In case (h), evidence may be given as to the general result of the documents by any person who has examined them, and who is skilled in the examination of such documents.

RELEVANT AUTHORITIES OF THE ABOVE ARTICLES:

2000 MLD 1653
If an original document claiming to be available by Plaintiff is not produced, certified copy of the same placed on record must be treated as secondary evidence under Article 76 QSO.

PLD 2022 Bal. 211
Under Article 75 QSO, documents must be proved by primary evidence. Certified copy of a document would be considered as secondary evidence.

2001 CLC 1796
In cases where original document is sought to be proved or of any person out of reach of or not subject to process of court or of any person legally bound to produce it, or where the original has been lost or destroyed or when due to the volume or bulk of original, copies thereof have not been made or when original is of such nature as not to easily moveable, any secondary evidence of the contents of the document is admissible. To make secondary evidence admissible, it is necessary that loss of original documents should be proved and permission to adduce secondary evidence obtained from the court.

2017 MLD 1737
Evidentiary value of documents produced during trial has to be seen in the light of QSO, 1984. Duty has been imposed under Article 75 upon court to exhibit those documents which are primary, and if original documents are not available during trial, documentary evidence is to be tendered through secondary mode after getting permission of court, failing which document has no evidentiary value in the eye of law.

PLD 1968 SC 140 (145)
The document having been marked as exhibit without objection became admissible in evidence and can be taken into consideration by the High Court. There can be no doubt as to the genuineness or admissibility of this document for, it is not disputed that it forms part of the mutation record and indeed was one of the documents upon which mutation of sale was actually entered.

2010 CLC 1434
Under article 76 QSO if the original document has been lost, evidence can be produced to provide its existence and contents, however in the present case plaintiff had filed application for production of secondary evidence after more than two years since the document were lost. Plaintiff had to establish ex*****on and existence of agreement in question between the two parties at first instance, whereafter he had to establish his assertion that document in question had been lost without his fault, which made him entitled to produce secondary evidence in respect of the same.

PLD 2016 Bel. 8
Secondary evidence could be produced when its original is not available. Secondary evidence is only permissible with the leave of court.

1988 CLC 1202
Certified copy of registered sale deed can be produced as secondary evidence.

2000 YLR 2256
Original documents in custody of attorney who have been died, legal heirs of defendant denying possession original POA and filing to produce the same. Such document can be secondary evidence under Article 72 & 76 QSO.

PLD 1987 Kar. 546
Photocopy of a document which is accurate and free from tempering maneuvering or changes falls within category of secondary evidence. Document must be proved by primary evidence, but in certain cases they can be proved by secondary evidence as enumerated in Article 67 QSO.

PLD 1978 Lah 31
Document at most a photostat copy of a certified copy and not certified copy. Production and proof of certified copy and not its photostat of another photostat of certified copy held permissible.

2014 MLD 428
Application for permission to place copies of documents on record. Documents mentioned in application had already been filed with the plaint. Said documents had been admitted by defendants and their contents had not been denied by them. Nothing has been alleged to have been charged forged in the certified copies. Courts were not supplied to pass any verdict on the quality of evidence during recording of same. Evidentiary value of the documents was to be determined at final disposal of the suit.

18/05/2026

PARDANASHIN LADY
PLD 2026 Pesh. 53
In a male dominated society where female legal heirs are consistently deprived even of their 'Sharai" shares in inheritance matters, like sisters, the principle of caution in protecting the legitimate rights of the illeterate parda observing lady must be applied vigorously and rigidly. In a case of transaction of valuable property with old, illeterate/rustic village 'Parda Nashin' lady, onus to prove the transaction, being legitimate and free from all suspicious and doubts sorrounding it, can only be dispelled if the following mandatory conditions are complied with and fulfilled through transparent manner and through evidence of a high degree: (i) that the lady was fully cognizant and was aware of the nature of the transaction and its probable consequences; (ii) that she was having independent advice from a reliable source/person of trust to fully understand the nature of transaction; (iii) that witness to the transaction were such, who were close relatives with the lady and were having no conflict of interest with her; (iv) that the sale consideration was duly paid and received by the lady in the same manner; and (v) that the very nature of transaction was explained to her in the language she understood fully and was apprised of the contents of the deed/receipt, as the case may be.

18/05/2026

RECRUITMENT ON POST OF QARI
PLD 2026 FCC 58
brief facts were that the petitioner applied for the post of Qri (BPS-12) in the elementary and secondary education department, where the advertised minimum qualification was a bachelor's degree from a recognised university and a qiratsanad from a recognised institution, along with mandatory post selection training; although he held shahadat-ul-aalmiya, the recruiting authority did not award did not award marks for that qualification as the advertisement stated such marks would not be counted for cadres other than Arabic Teacher or Theology Teacher resulting in a lower merit position and non selection; petitiner's writ petition seeking award of those marks and declaration against the advertisement condition was dismissed by the High Court, hence, the present petitioner before the Federal Constitutional Court hence, the present before the Federal Constitutional Court was preferred. question requiring determination in the present matter was as to "whether the petitioner met the required terms, conditions and qualifications contained in the advertisement for the job in question? Held: from a plain reading of advertisement, which the petitioner applied under, it was made clear from the vary outset that his Sanad would not be acceptable for the position for which he had applied and as such, his contention was without merit. With regard to exclusion of his Sanad not being anchored in law, this was also misconcieved. It had specifically mentioned in the general conditions of advertisement and that marks of Shahadat-ul-Aalmiya were not to be given to other cadres except for the post of TT and AT. Petitioner was not qualified for the post which he applied for and the required qualifications were anchored in law. Present petition was without merit, leave to appeal was refused.

18/05/2026

PROSPECTIVITY & RETROSPECTIVITY OF A STATUTE
PLD 2026 Lah. 262
There can be no two views about the powers of legislature to legislate any law and to make it applicable prospectively or retrospectively or from any particular date, with clear/express intendment in this regard. However the procedural law even though not expressly provided for, normally holds its applicability retrospectively as no one can claim vested right in the matter of procedure.

15/05/2026

Limitation and filing of Ex*****on Application in Banking Court.
In common parlance the courts always objected on filing ex*****on after a delay of years, and numerous courts dismiss the ex*****on application(s) if the application filed by 3, 6, 15 years or so. The objection generally based on the provisions of Limitation Act and the Code of Civil Procedure, 1908. Before the Ordinance, 2001 there are provisions in the Banking Companies (recovery of Finances) Ordinance, 1997 in which the provisions of Limitation Act as well as CPC has application.

On the contrary banking law i.e Financial Institutions (Recovery of Finances) Ordinance, 2001 is a special law, deals wih banking offences. special law prevails over general law. section: 19 and 24 of the Financial Institutions (Recovery of Finances) Ordinance, 2001 prescribes the mode and procedure for ex*****on application once the banking court pronounced judgment and decree in a recovery suit.
Section: 19 Ex*****on of Decree and sale with or without intervention of banking court.
(1) Upon pronouncement of judgment and decree by a Banking Court, the suit shall automatically stand converted into ex*****on proceedings without the need to file a separate application and no fresh notice need be issued to the judgment debtor in this regard. Particulars of mortgaged, pledged or hypothecated property and other assets of judgment debtor shall be filed by the decree holder for consideration of the Banking Court and the case will be heard by the Banking Court for ex*****on of its decree on the expiry of 30 days from the date of pronouncement of judgment and decree;
provided that if the record of the suit is summoned at any stage by the High Court for purposes of hearing an appeal under section 22 or otherwise, copies of the decree and other property documents shall be retained by the Banking Court for purposes of continuing the ex*****on proceedings.
(2) The decree of the Banking Court shall be executed in accordance with the provisions of the Code of Civil Procedure, 1908 or any other law for the time being in force or in such manner as the Banking court may at the request of the decree holder consider appropriate, including recovery as arrears of land revenue.
Explanation. The term assets or properties in sub-section (2) shall include any assets and properties required benami in the name of an ostensible owner.
(3) In cases of mortgaged, pledged or hypothecated property, the financial institution may sell or cause the same to be sold with or without the intervention of the Banking Court either by public auction or by inviting sealed tenders and appropriate the proceeds towards total or partial satisfaction of the decree. The decree passed by a Banking Court shall constitute and confer sufficient power and authority for the financial institution to sell or cause the sale of the mortgaged, pledged or hypothecated property together with transfer of marketable title and to further order of the Banking Court shall be required for this purpose.
(4) where a financial institution wishes to sell mortgaged, pledged, hypothecated property by inviting sealed tenders, it shall invite offers through advertisement in one English and one Urdu newspaper which are circulated widely in the city in which the sale is to take place giving not less than thirty days time for submitting offers. The sealed tenders shall be opened in the presence of the tenderers or their representatives or such of them as attend:
provided that the financial institution shall be entitled in its discretion, to purchase the property at the highest bid received.
(5) The provisions of sub-sections (5), (6), (7), (8), (9), (10), (11) & (12) of section 15 shall, mutatis mutandis, apply to sales of mortgaged, pledged or hypothecated property by a financial institution in exercise of its powers conferred by sub-section (3).
(6) The Banking Court and the Financial Institution shall be entitled to seek the services and assistance of the police or security agency in the exercise of powers conferred by this section.
(7) Notwithstanding anything contained in the Code of Civil Procedure, 1908, or any other law for the time being in force-
(a) The Banking Court shall follow the summary procedure for purposes of investigation of claims and objections, in respect of attachment or sale of any property, whether or not mortgaged, pledged or hypothecated, and shall complete such investigation within 30 days of filing of claims or objections;
(b) if the claims or objections are found by the Banking Court to be malafide or filed merely to delay the sale of the property, it shall impose a penalty upto twenty percent of the sale price of the property.
(c) the Banking Court, in its discretion, proceed with the sale of mortgaged, or pledged or hypothecated property if, in its opinion the interest of justice so require;
Provided that the financial institution gives a written undertaking that in the event the objections are found to be valid, or are sustained, it shall in addition to compensating the aggrieved party by the payment of such amount as may be adjudged by the Banking Court also pay a penalty upto twenty percent of the sale proceeds and such amounts shall be recoverable from the financial institution in the same manner as in ex*****on of decrees passed hereunder.

However, section 24 prescribed the limitation for the suits filed or to be file din the Banking Court, and the same is as under:
section: 24 (1) Save as otherwise provided in this Ordinance, the provisions of the Limitation Act, 1908 shall apply to all cases instituted or filed in the Banking Court after the coming into force of this Ordinance.
(2) A suit under section 9 may be entertained by a Banking Court after the period of limitation prescribed therefor, if the plaintiff satisfies the Banking Court that he had sufficient cause for not filing the suit within such period.
Categorically, after skimming through the above provisions, it is crystal clear that to invoke the jurisdiction of Banking Court, it has exclusive jurisdiction to convert the decree into ex*****on as per the provisions of section 19. Therefore, the Decree Holder need not to file a separte and/or fresh ex*****on. Therefore, neither the section 48 CPC nor Article 181 Limitation Act applies as far as where ex*****on in banking court is concerned. However, Limitation only applies when there is a need to file recovery suit befor ethe banking court. The default of the customer should be shown in fresh account statement right from the beginning where the customer availed finance facility from the financial institution or a bank. This provision put an embargo of limitation on filing the fresh recovery suits only. The upshot of the discussion elaborated the crux of both the sections, section 19 elaborates the procedure of automatic converson of decree in the ex*****on proceedings vis-a-vis application of limitation and bar to file suits within time under section 24 of the FIO, 2001. To strenghthen our view the relevant Authorities are as under:

2024 CLC 744
Financial Institutions (Recovery of Finances) Ordinance, 2001 is different as its section 19 provides that upon announcement of judgment and decree, the suit shall automatically convert it into ex*****on application. Thus, no sooner the judgment and decree is passed in proceedings under the FIO, 2001, the proceedings stand converted into ex*****on application. FIO, 2001 does not provide a way to file a fresh ex*****on application, as was inadvertently done in the present case by the appellant/Bank.
surprisingly, the Banking Court did not discuss section 19. Thus section 24 of the FIO, 2001 cannot be conceived to have its application on the ex*****on proceedings as the suit proceedings automatically stand converted into ex*****on, leaving no room for limitation. Since the FIO, 2001 does not recognise the scheme of filing fresh ex*****on application, High Court referred the matter to the Banking Court in order to club the ex*****on application with suit which will be deemed to be converted into ex*****on. Appeal allowed.

2014 CLD 592
Automatic conversion of decree into ex*****on application; judgment debtor's application for setting aside ex*****on proceedings, on the ground that the same were time barred was dismissed.
under section 7 of the FIO, 2001 provisions of CPC & Limitation Act, 2001 would apply only in matters where procedure and provision was not provided in the Ordinance itself. FIO, 2001 provided special procedure for ex*****on of decrees and under section 19 of the Ordinance, upon pronouncement of judgment and decree, the suit shall automatically stand converted, into an ex*****on petition without filing of separate ex*****on petition/application. Such special procedure provided in the said section 19(1) of the Ordinance, would exclude general provisions of Article 181 Limitation Act, 1908 and section: 48 of CPC, 1908. Application filed by plaintiff bank for conversion of a decree into ex*****on proceedings was merely an application to trigger the machinery of the Banking Court was otherwise required to follow and such application could not be treated as an ex*****on application, therefore the same was not barred by time.

14/05/2026

TRICHOTOMY OF POWERS
PLD 2026 Pesh. 60
constitution is based on trichotomy of powers. Legislature makes laws, the executive executes it, while the judicature is entrusted with duty to interpret it. Constitution identifies and explains authority of the Parliament to exclusively make laws with respect to any matter in the Federal Legislative list. All such matters pertaining to such areas in the Federation are not included in any province.

14/05/2026

SUPER TAX
PLD 2026 FCC 62
Super tax is a tax on income independent of tax levied under section 4 of Income Tax ORdinance, 2001. Parliament is competent under Entry 47, of Part I of the Fourth Schedule to the constitution, to levy 'taxes on income'. Insofar as levy of super tax is concerned, section 4C of Income Tax Ordinance, 2001 is a self contained provision and is stand alone tax on income. Provision of section 4C of Income Tax Ordinance, 2001 a sit applied to capital gains under section 37 A and Rules of the Eighth Schedule, Income Tax Ordinance, 2001 was held to be applicable thereto, as it was within the ambit of section 4C(2)(i) and (iv) of Income Tax Ordinance.
dispute pertained to insertion of section 4B in Income Tax Ordinance, 2001 vide Finance Act, 2015 for raising revenue for internally displaced persons for tax year 2015. Provisions of section 4B of Income Tax Ordinance, 2001 is intra vires the Constitution and has to be applied as enacted for tax year 2015 and onwards at the rates prescribed in Division IIA, Part I, of First Schedule to Income Tax Ordinance, 2001.