' SYED ZAHID HUSSAIN, J.---By order dated 6-11-1993 Special Judge, Banking Court has dismissed the execution petition filed by the appellant on the ground that the decree had been passed by the Civil Court on 15-7-1986 after coming into force of Ordinance II of 1983. This order has been challenged through this appeal.
2. The learned counsel for the appellant relies upon the Division Bench judgment in F.A.O.No,14 of 1994 dated 6-7-1994, F.A.O. No,246 of 1994, dated 4-5-1999 and on Habib Bank Limited v. Messrs Qadri Traders and another (1998 PCTLR 923) to contend that the view taken by the Executing Court in dismissing the execution petition was incorrect in law and the execution petition has been dismissed illegally.
3. The respondent is not represented despite that the name of his learned counsel duly appears in the cause list. The appeal has therefore, been heard ex parte.
4. A controversy of an identical nature arose in a number of cases when a learned Division Bench of this Court while disposing of F.A.O. No,14 of 1994 took the view that:-- "The question which arises for determination in this case is whether judgment reported as PLD 1988 SC 391 which has been made basis for reopening the past and closed transaction in these cases could be pressed into service or that the said judgment was a judgment in personam or judgment in rem. This controversy has been set at rest by judgment reported as Pir Bakhsh v. The Chairman, Allotment Committee and others (PLD 1987 SC page 145) in which the Supreme Court held as under:-- `Where grievance was an individual grievance and related to satisfaction of claim in full or in part, proceedings were action in personam against definite persons arrayed as respondents and determination a judgment in personam. Where such determination was not set aside in appeal, judgment remained in field irrespective of the quality of determination as to whether it was incorrect on question of fact or law. Rights of parties thereunder assumed finality and took the colour of a "past and closed transaction". Fact that Supreme Court in an appeal against the judgment in another writ petition would not reopen concluded rights of the parties under decision of High Court against which no appeal was filed nor could appellants who were respondents in writ petition avail the benefit of law laid down by the Supreme Court under Article 189, Constitution of Pakistan, 1973. Judgment in appeal was operative as from the date it was announced and it did not have the effect of re-opening the rights of the parties concluded finally under the High Court judgment. Authority of law laid down by Supreme Court under Article 189 being prospective, decision of High Court nevertheless stood overruled on same question of law but that will not affect rights of parties already determined by High Court. As has already been observed in all these appeals the respondents/ judgment-debtors did not challenge the judgment and decree in appeal and they wanted to get benefit of judgment delivered in an appeal filed by an aggrieved party against judgment and decree passed against it by the Civil Court. In view of the rule laid in the case of PLD 1987 SC 145 (supra) no benefit could be derived by the respondents as far as they were concerned judgments and decrees passed against them had become past and closed transactions and could not be re-opened'."
' Similar view was taken in F.A.O. No,246 of 1994 decided by a Division Bench of this Court as also in Habib Bank Limited v. Messrs Qadri Traders and another (1998 PCTLR 923).
5. In the present case as well, the judgment and decree is stated to have not been challenged by the judgment-debtor, which became final qua him and a past and closed transaction. The view thus taken by this Court in the above mentioned judgments is fully applicable to the instant case as well, which we respectfully follow.
6. In view of the above, this appeal is accepted. The impugned order is set aside as a result whereof, the execution petition filed by the appellant will be deemed pending, which shall be proceeded with and decided in IA accordance with law. No order as to costs.