1. ' CH. IJAZ AHMAD, J.---The brief facts out of which the present appeal arises are that the appellant secured loan from the respondent-Bank and an agreement was also executed between the appellant and respondent-Bank. According to the terms and conditions of the agreement the appellant has to pay loan to the respondent-Bank in easy instalments. At the time of sanctioning the loan in favour of the appellant by the respondent-Bank, the appellant had executed various documents in favour of the respondent-Bank including mortgage of the property in question. The appellant failed to discharge its liabilities in terms of the agreement. The respondent-Bank being aggrieved filed suit for recovery of Rs.1,44,35,907.25 in the Banking Court No,4, Lahore. The Banking Court decreed the suit against the appellant vide judgment and decree dated 7-2-2000. The respondent-Bank filed execution petition before the Banking Court against the appellant with the prayer that decree be satisfied through the sale of the following properties as is evident from schedule attached with the file as Annex-B:--
(1) Factory Nice & Easy Fashion Pvt. Limited, 8 Kanals Khasra Nos.3905/7-K-4M-3883/ 16-M Khatooni No,10/ 15, Mauza Ludhar, Tehsil Cantt., Lahore.
(2) Bungalow No,233-R, Phase-II, two Kanals LCCHS, Lahore Cantt., Lahore.
2. ' The appellant filed two objection petitions before the Banking Court. The objection petitions of the appellant were dismissed by the Banking Court vide order dated 22-7-2003 in limine without directing the respondent-Bank to file reply to the objection petitions. The Banking Court vide order dated 21-7-2003 approved the auction schedule to the extent of Bungalow No,233-R, Phase-II, mentioned above, whereas the Banking Court vide order dated 22-7-2003 directed to sell the property i.e. Bungalow No,233-R, Phase-II, Lahore. The appellant being aggrieved filed this appeal.
3. ' Learned counsel for the appellant submits that the Banking Court erred in law to assume the jurisdiction and pass the impugned order merely on presumptions and surmises in violation of the mandatory provisions of law. He further submits that the learned Banking Court passed the impugned order in haste without directing the decree-holder to file reply to the objection petition whereas it is statutory duty of the Banking Court to pass the impugned orders after applying its judicial mind, but the learned Banking Court passed the impugned orders as is evident from the contents of the impugned orders on the basis of surmises and conjectures in a mechanical manner without adverting to the objection raised by the appellant in the objection petitions filed by him before the Executing Court, therefore, the impugned orders were passed by the Banking Court in violation of fundamental principle of fairplay. He further submits that learned counsel for the respondents had placed on record order of this Court dated 16-7-2003 which was not attested copy, therefore, the learned Banking Court erred in law to dismiss the objection petition of the appellant on the basis of aforesaid order of this Court dated 16-7-2003. He further urges that no notice was served upon the appellant prior to drawing up the proclamation as required by the mandatory provisions of Order XXI, rule 66, C.P.C. He further submits that market value of the property in question is more than Rs.1,50,00,000 which would be sold at a low price than its market value which is against the spirit of justice. He further urges that learned Banking Court passed the impugned order without adverting to the mandatory provisions of Order XXI, rules 66 and 54, C.P.C.
4. Which are mandatory in nature, therefore, judgment of the learned Banking Court is non-existent in the eye of law. He further urges that proper particulars of the property are not mentioned in the schedule but this fact was also not considered by the Banking Court at the time of dismissing the objection petition of the appellant. He further urges that the appellant has already filed application under Circular No,29 to the State Bank of Pakistan which is pending adjudicating before the Competent Authority but this fact was also not considered by the learned Banking Court in its true perspective. He further urges that respondent-Bank had mentioned incorrect amount in the execution petition in violation of the amount mentioned in the judgment and decree of the Banking Court. He summed up his arguments that the order of the learned Banking Court is in violation of the law laid down by the superior Courts. In support of his contentions he relied upon the following judgments:-
(1) Narsingh Das v. Mangal Dubev and others ILR 5 Allahbad 163.
(2) Gauri v. UDE and others AIR 1942 Lahore 153.
(3) Messrs Chawla International v. Habib Bank Ltd. 2003 CLD 956.
(4) Gopal Chandra v. Ramesh Chandra and another PLD 1961 Dhaka 492.
(5) Sikandar Ali v. The State 1999 MLD 212.
(6) Shaukat Ali Mian v. Trust Leasing Corporation through its Chief Executive and 4 others 2002 CLD 1071.
(7) Messrs Ripple Jewellers Pvt. Ltd. v. First Women Bank 2003 CLD 1318.
5. ' Learned counsel for the respondent-Bank submits that decree was passed by the Banking Court against the appellant on 7-2-2000. The appellant filed First Appeal from Order No,394 of 2002 before this Court which was dismissed vide order dated 4-9-2002. The appellant failed to satisfy the decree. The respondent-Bank filed execution petition before Executing Court on 28-6-2000. The Executing Court directed the appellant to file reply to the application and also directed to provide surety bond or personal guarantee. He further submits that the Executing Court passed the order to send notice to the appellant vide order dated 29-6-2000, for 18-7-2000. He further submits that notice was sent to the appellant but the appellant was not present at his home. The family members of the appellant refused to receive the notice. Notice was pasted at the outer door of the appellant as is evident from the reports of the Process Server dated 14-7-2000 which are at pages 106/107 and dated 17-7-2000 at pages 112 and 114 in Civil Miscellaneous No,1250-C of 2003. He further urges that property in question has already been mortgaged with the respondent, therefore, Order XXI, rule 54, C.P.C. Is not attracted in the present case. He further submits that during the pendency of the execution petition, the appellant executed an agreement with the respondent-Bank on 23-9-2002 which clearly envisaged that the appellant had knowledge of the execution proceedings and respondent-Bank did not pursue the execution proceedings in view of the agreement dated 23-9-2002 for one year. He further urges that reserve price was finalized in view of the order passed by the Division Bench on 4-9-2002 on the appeal filed by the appellant before this Court. He further urges that mere filing an application under Circular No,29 before the State Bank of Pakistan for adjustment cannot be provided excuse to the appellant not to satisfy the decree which was passed by the competent Court.
6. ' We have given our anxious consideration to the contentions of learned counsel of the parties and perused the record ourselves.
7. ' It is better and appropriate to mention the basic facts in chronological order to resolve the controversy between the parties. The respondent-bank filed suit for recovery against the appellant which was decreed vide judgment and decree dated 7-2-2000. The respondent-Bank filed execution petition before the Executing Court on 28-6-2000. The Executing Court passed order to issue notice to the appellant/defendant in the execution petition. Notices were issued to the appellant by the Banking Court which are attached at pages 105 to 123. The report of the Process- Server dated 14-7-2000 reveals that the appellant was not present in his house. The remaining family members refused to receive the notice. The notice was pasted on the outer door of the appellant which is at page 106 of Civil Miscellaneous No,1250-C of 2003. The report of the Process- Server dated 17-7-2000 to the same effect is at pages 110 to 114 to show that service of the appellant was not effected as the appellant was not present in his house. The particulars of the property in question are also mentioned in Fard Taleeqa' filed by the judgment-debtor which is at page 116 of the said application. The Executing Court authorized to appoint the Security Guard at the mortgaged factory premises vide order dated 15-7-2000. The report of the Process-Server dated 18-9-2002 also reveals that servant of the appellant refused to receive the notice. The report of the Process-Server to the same effect also at pages from 121 to 123. The appellant and respondent also executed agreement dated 23-9-2002 which is at page 78 with the following conditions:-- ' The first payment of Rs.1 million shall be made today (24-9-2002) into the Court-room to the bank by the judgment-debtor (party of second part) given to him by the purchaser (party of third part).
8. ' The second payment of Rs.1 million shall be made on 2nd of January, 2003 by the same way.
9. ' Rest of the complete payment of Rs.12 million shall be paid on 15-4-2003 in the same manner.
10. ' The respondent-Bank did not pursue the execution proceedings in view of the aforesaid agreement for one year. The appellant failed to honour his commitment in terms of the aforesaid agreement dated 23-9-2002. The respondent-Bank was compelled by the circumstances to revive the execution proceedings before the Banking Court. The appellant filed objection petition under section 47 read with Order XXI, rules 66 and 54, C.P.C. Before Executing Court on 22-7-2003. The Executing Court dismissed the same vide order dated 22-7-2003 which is impugned through this appeal.
11. ' The contention of learned counsel of the appellant that the appellant has filed application before the State Bank under Circular 29 has no force in view of the order passed by the Division Bench of this Court in First Appeal from Order No,171 of 2003 on 16-7-2003 and laid down the following principle:-- "The incentive scheme is a nature of a contemplated adjustment by a lending Bank with a borrower under the directive of the State Bank of Pakistan. We are of the view that execution proceedings ,cannot be stayed only in contemplation of a settlement. We see no merits in this appeal which is, accordingly, dismissed."
12. ' The second contention of learned counsel of the appellant that Banking Court initiated proceedings against the appellant without issuing notice to the appellant under Order XXI, rules 66 and 54, C.P.C. Have no force in view of the report of the Process-Server which is mentioned above.
13. The appellant wants benefit of his own misdeeds as the appellant did not receive the notice and did not agitate the matter on this ground on any canon of justice as the report of the Process- Server reveals that the notice was pasted at the outer door of the appellant coupled with the fact that the appellant himself executed agreement with the respondent-Bank on 23-9-2002 on the well-known principle of estoppel and waiver as the law laid down by Honourable Supreme Court in Ghulam Rasool's case reported as PLD 1971 SC 376 even otherwise compliance of the said provision has been made in view of the law laid down in Gopal Lal Chandra v. Amulya Kumar AIR 1933 Calcutta 234 wherein the relevant observation is as follows:-- "Knowledge may some time be sufficient to impute notice in the circumstance of such as may reasonable require the person having such knowledge to enquire about the particulars."
14. ' The judgment relied upon by learned counsel for the appellant i.e. Sikandar Ali's case supra 1999 MLD 212 is not relevant. It is a petition under section 497, Cr.P.C. In view of conduct of the appellant the Executing Court was justified not to direct the respondent-Bank to file reply of the objection petition coupled with the fact that there was sufficient material before the Executing Court as is evident from the documents attached by the appellant alongwith Civil /1 iscellaneous No,1250-C of 2003 under the direction of this Court. The judgment relied upon by learned counsel for the appellant i.e. Shaukat Ali Mian's case 2002 CLD 1031 is distinguished on facts and law. In the cited case the objector claimed the property on the basis of agreement to sell and secured the possession of the property in the cited case in terms of agreement to sell, therefore, the Division Bench has decided the case on the peculiar circumstances of the cited case. Similarly Messrs Ripple Jeweller's case 2003 CLD 1318 is also distinguished on facts and law as in the present case notice was issued under Order XXI, rule 66, C.P.C. To the appellant as is evident from the report of the Process-Server mentioned above coupled with the contents of agreement dated 23-9-2003 reproduced above. Order XXI, rule 54, C.P.C. Is not mandatory in nature and substantial compliance has been made as is evident from the impugned order itself in view of para.4, therefore, contention of lea: .Ed counsel of the appellant has no force in view of the law laid down in State Life Insurance Corporation of Pakistan Ltd. v. Dr. A.M.J. Sherazee and 9 others PLD 1983 Karachi 112 and Syed Ashad Ali Sadiq v. Pakistan International Airlines Corporation 1992 CLC 1323.
15. ' The contention of learned counsel for the appellant qua the reserve price has no force as the matter has been finalized between the parties on this point in First Appeal from Order No,394 of 2002 vide order dated 4-9-2002 by the Division Bench which is available at page 205 of aforesaid Civil Miscellaneous. It is pertinent to mention here that the object of enacting the Banks laws is to provide speedy measures for recovery of outstanding loans of the Banking Companies as the recovery suits re named pending in the Civil Courts for years together. The special law was enacted to improve the economical situation which had arisen in the country on account of default in payment of the loans and finance by the borrowers and customers of the Banking Companies. It is also settled law that special law excludes the general law as laid down by the superior Courts in the following jucice.
16. ' Zia-ur-Rehman's case PLD 1973 SC 49.
17. ' Ahmad Mureed Malik v. Presiding Officer, Banking Court 2002 CLD 577.
18. ' National Bank of Pakistan v. Effef Industries 2002 CLD 1431.
19. ' In view of the aforesaid principle of law the judgment relied upon by learned counsel of the appellant Gopal Chandra v. Ramesh Chandra and another PLD 1961 Dhaka 492 and Narsingh Das v.
20. Mangal Dubev and others ILR 5 Allahbad 164 have no relevancy in view of special and peculiar circumstances of this case on the well-known principle of estoppel and waiver as mentioned above. It is also settled principle of law that Executing Court is well within its right to adopt any mode for execution of the decree. It is also settled principle of law that Executing Court has been given discretion to execute the decree in view of the provisions of the Civil Procedure Code or in any other manner it may deem fit as the law laid down by the Division Bench of Karachi High Court in Agha Atta Ullah's case 2002 CLD 1550. It is also settled principle of law that reported or unreported judgment of this Court has binding effect as the law laid down by this Court in PLD 1968 Lahore 148 in view of Articles 201, 189 and 190 of the present Constitution which is equivalent to Article 63 of 1962 Constitution as held in Azam Ali and others v. The Custodian of Evacuee Property West Pakistan, Lahore v. Mst. Khem Bai alias Ghulam Fatima PLD 1968 Lahore 148.
21. ' In view of what has been discussed above, we do not find any infirmity or illegality in the impugned orders of the Executing Court, therefore, the appeal has no merits and the same is dismissed.