1. ' This is an application under section 152, C.P.C. Read with section 27 of the Financial Institution (Recovery , of Finances) Ordinance, 2001, has been filed by learned counsel for the judgment- debtors seeking rectification of certain mistakes and errors including following amongst others:--
(i) The Docree is Money Decree present proceedings are corum non judice;
(ii) That issue of maintainability of application under section 19(2) of the Financial Institutions (Recovery of Finance) Ordinance, 2001, has not been considered at all;
(iii) That the contention of judgment-debtors that the pledged goods are not in the custody of the Decree-holder has been incorrectly recorded, in fact, it was pleaded otherwise;
(iv) Execution is premature as the High Court appeal against the judgment and decree in the Banking Court is sub judice;
(v) Observation in the order to the effect that "Indeed subsection (2) of section 19 of Ordinance, 2001, declare any, transaction by judgment-debtor subsequent to the judgment as null and void".
2. According to Mr. Memon no direction is embodied in section 19(2) of the Ordinance; ' Mr. Mushtaq Memon, contends that errors and mistake are such as could be corrected in .Terms of section 27 of the Ordinance, 2001 read with section 152,. C.P.C. ,Mr. Rasheed A. Razvi, vehemently opposes the application. He contended that powers of Banking Court to correct judgment and decree are now confined to proviso to section 27 ibid. ' In order to appreciate the contentions of learned counsel for the parties, it will be advantageous to reproduce section 27 of the Financial Institutions (Recovery of Finances) Ordinance, 2001, as well as section 152, which reads as follows:-- "Subject to the provisions of section 22, no Court or other authority shall revise or review or call, or permit to be called, into question any proceeding, judgment, decree, sentence or order of a Banking Court or the legality or propriety of anything done or intended to be done by the Banking Court in exercise of jurisdiction under this Ordinance: ' Provided that the Banking Court may, on its own accord or on application of any party, and with notice to the other party or, as the case may be, to both the parties, correct any clerical or typographical mistake in any judgment, decree, sentence or order passed by it."
3. "152, C.P.C. Amendment of judgments,. Decrees or orders." Clerical or arithmetical mistakes in judgments, decrees or orders or errors arising therein from any accidental slip or omission may at any time be corrected by the Court either of its own motion or on the application of any of the parties."
4. ' From a bare perusal of the proviso to referred section 27 of Ordinance, 2001, it is crystal clear that the Banking Court may, on its own accord or on application of any party, "correct any clerical or typographical mistake in any judgment, decree, sentences or order passed by it". It is, only the clerical and typographical mistake that could be corrected by the Banking Court in terms of proviso referred to above. However, section 152, C.P.C. Authorizes Court to correct "error arising from any accidental slip or omission" besides clerical or arithmetical mistake in the judgment, decree or order.
5. ' Banking Ordinance, 2001 is a special law, special provisions have precedence over the general provisions of law and in terms of section 4 of the Ordinance, 2001, provisions of the Ordinance, 2001 have overriding effect notwithstanding anything inconsistent contained in any other law for the time being in force. The powers to correct the judgment decree or order as contained in section 152, C.P.C. Being general law, in presence of proviso to section 27 of the Ordinance, 2001 which is special law, cannot be resorted to. The powers to correct judgment, order or sentence by a Banking Court, as can be seen from the provisos reproduced above, are confined to clerical or typographical mistake as against power to correct "error arising therein from any accidental slip or omission"
6. ' Reliance of Mr. Available to Court under general law.
7. ' Mushtaq A. Memon, learned counsel for judgment-debtors on the case of Sher Muhammad v.
8. Khuda Bux PLD 1961 (W.P.) Lahore 579 is of no avail as the said judgment was pronounced keeping in view of the provision of section 152, C.P.C. Since as far as the powers of Banking Court are concerned, same are circumscribed by the provision of Ordinance, 2001 and even authority to revise, review, call or permit to be called in question any proceeding, judgment, decree, sentence or order of the Banking Court or the legality or propriety of anything done or intended to be done by the Banking Court could not be challenged or questioned except by resort to the. Appellate Jurisdiction under section 22 of the Ordinance, 2001. In my humble estimation, even error of law or non-consideration of any particular provision by a Banking Court while rendering any decision, order, judgment or sentence cannot be revisited by the Banking Court in view of limitation to exercise the jurisdiction as laid down under section 27 ibid. When the Legislature deliberately has placed a limitation on exercise of such powers, same cannot be drawn, extended or stretched by invoking provisions of general law as such exercise will defeat the very purpose of the Banking Ordinance, 2001:
(1) As far as first purported error pointed out by learned counsel that money decree cannot be executed by executing it against the mortgaged property. I had already examined this issue in another Execution No,35 of 2001 United Bank Limited v. Kyoto Capital Goods Fund (Pvt.) Ltd. It was held therein there appears to be no distinction for the purpose of execution in mortgage or money decree. No appeal against above observation has been preferred. Even otherwise unless such finding is reversed I am bound by my above view.
(2) Now adverting to (ii) contention in respect of the properties which are beyond the territorial jurisdiction of this Court and jurisdiction of this Court is barred in' view of section 39 of C.P.C. Suffice it to say that the jurisdiction of the Banking Court to execute the Judgment and Decree is exercisable in terms of section 19 of the Ordinance, 2001 "read with provisions of Code of Civil Procedure or any other law for the time being in force or in such manner as the Banking Court may, at the request of Decree-holder consider appropriate". Section 39, C.P.C. Is merely enabling and procedural provision. It does not take away the jurisdiction of executing Court. It only outlines procedure of convenience to be employed by the executing Court to effectively execute the decree. In my humble reading of the provision of section 39 of C.P.C., such powers are to be exercised either on the application of Decree-holder or by the COurt on its own motion and, not on the application of judgment-debtor. There is nothing on record to suggest that the Decree-holder had made any request for the transfer of a decree in respect of properties situated outside limits of the jurisdiction of the Banking Court. In terms of section 51, C.P.C. Even the Court which had passed the decree may cause attachment and sale of any property of the judgment-debtor. I was unable to read any embargo in section 39, C.P.C. On the jurisdiction of the Banking Court to execute a decree or cause attachment in respect of properties falling outside its territorial jurisdiction. Even if it had been so, I am afraid, if at all, lapse could be corrected by invoking section 152 of C.P.C. As powers of Banking Court to correct the judgment and decree in terms of proviso to section 27 is limited to the correction of arithmetical or clerical mistake. Lapse, if any, of the Banking Court to consider any provision of law while rendering order, judgment or sentence cannot be said to be clerical or typographical mistake, I found myself unable to concur with the learned counsel for the judgment-debtor that such lapse could be corrected by invoking section 152, C.P.C. Which provision, in view of the overriding effect given to provisions of Banking Ordinance, 2001, in terms of section 4 of the Ordinance, 2001 cannot be invoked.
(3) Contention as to error No,(iii) as to wrong recording of the statement of Decree-holder that "the pledged goods are not in the custody of the decree-holder" which in fact are in the custody of the decree-holder. This appears to be typographical mistake, which is accordingly corrected to be read as "the pledged goods are in the custody of the decree-holder".
(4) Purported error at Serial No,(iv) is no error, it is settled position in law that mere pendency of appeal does not affect the execution of judgment and decree unless suspended by the Appellate Court.
(5) Adverting to (v) purported mistakes as to quoting 'the section 19(2) of the Ordinance, 2001 which apparently is a typographical error as the reference was intended to section 23(2) of the Ordinance, 2001.
9. ' Reliance of Mr. Mushtaq A. Memon on Muhammad Nazir v. Qaiser Ali Khan 2003 SCM R 436 is misplaced referred case is not in respect of powers of executing Court in terms of section 27 of the Banking Ordinance, 2001 or section 152, C.P.C.
10. ' Rest of the objections or corrections sought, in my , humble opinion, do not fall within the permissible limit as prescribed under, section 27 of the Ordinance, 2001. The application to the extent of the above typographical error is allowed; however, the plaintiff will be at liberty to seek remedy if at all any by resorting to section 22 of the Financial Institutions (Recovery of Finances)
11. Ordinance, 2001.
12. ' In view of the foregoing discussion, 'the Listed applications stands disposed of in terms as stated above.