UMAR ATA BANDIAL, J.---The petitioner has challenged the impugned orders dated 8-2-2005, 13-7- 2005 and 4-10-2005 passed by the learned Banking Court, Sargodha for the arrest of the petitioner, judgment-debtor, in proceedings launched by the respondent decree-holder bank for executing an ex parte decree dated 4-3-1998 passed in the amount of Rs.177,296. The learned counsel for the petitioner has shown two orders of the learned Banking Court dated 18-8-1998 and 6-10-2000 terminating earlier rounds of execution proceedings by recording the satisfaction of entitlement of the respondent-Bank under the said decree. Nevertheless, on 20-2-2001 the respondent-Bank again commenced proceedings for executing the said decree wherein the aforesaid impugned order for the petitioner's arrest have been passed.
2. The parawise comments filed by the respondent-Bank purport to answer to merits of the petitioner's case with the plea that its officers who withdrew the earlier execution proceedings or admitted satisfaction of the decree did not have authority to make such statements. No explanation is, however, given for the repetition of the alleged error terminating the execution proceedings. Learned counsel for the respondent-Bank has however, emphasized the notwithstanding the impugned orders the petitioner has not been arrested in the pending execution proceedings. He has, therefore, not suffered any prejudice on account of the impugned action. He adds there is no material on record suggesting that the petitioner has paid even a single rupee to adjust the decree which remains unsatisfied.
3. Without prejudice to his foregoing submissions, learned counsel for the respondent-Bank has relied forcefully on Muslim Commercial Bank Ltd. And others v. Ahmed All and another (2007 SCM R 38) wherein the exercise of the constitutional jurisdiction in respect of order passed in an execution petition pending before a learned Banking Court has not disapproved. The reasoning given for this view is reproduced below:- "Mr. Jatoi holding brief for the petitioner relied upon the case of Farzand Raza Naqvi v. Muhammad Din 2004 SCMR 400 in support of his submission that order impugned in the constitutional petition being void and without lawful authority, non-availing of alternate remedy of appeal was of no consequence. We are afraid we cannot subscribe to this view of the learned counsel as the judgment and decree passed by the Banking Court with exclusive jurisdiction was neither, void nor without jurisdiction. In fact it was required to be challenged in appeal before the High Court under Banking Companies (Recovery of Loans, Advance, Credit and Finance) Act, 1997 but the respondent having accepted it did not assail the same which attained finality for all intents and purposes and execution proceedings arising out of such decree could not be assailed in writ jurisdiction, more so before a Single Judge of the High Court. We are fortified in our opinion by Mst. Kaniz Fatima v.
Muhammad Salim 2001 SCM R 1493 in which it was authoritatively held by this Court that where a particular statute provides a self- contained machinery for the determination of questions arising under the Act and where law provides a remedy by appeal or revision to another Tribunal fully competent to give any ,relief any indulgence to the contrary by the High Court is bound to produce a sense of distrust in statutory tribunals and constitutional petition without exhausting, remedy provided by the statute would not lie in the circumstances."
4. Although the rule of exhaustion of available remedies is not prescribed by Article 199 of the Constitution, however, it is salutary criterion by which this Court regulates it proceedings. Unlike the precedent case, the finality of a decree is not being sought to be re-opened in the present case.
Indeed this petition is concerned with the conditions for the availability of the process of the Banking Courts to execute decree that have prima facie been satisfied. Undeniably in accordance with the rule laid down in Kaniz Fatima's case that is relied with approval by the Honourable Supreme Court in its afore quoted dictum, the instant petition contains facts that prima facie suggest an abuse of process of Court by a decree-holder and correspondingly attract the supervisory constitutional jurisdiction of the Court. Further, the facts of the case involve the enforcement of constitutional safeguards of the personal liberty of a citizen in the instant case the petitioner judgment-debtor.
5. Most respectfully, therefore, whilst expressing complete deference to the rule stated in the case of Muslim Commercial Bank Ltd., and others (supra), in the humble view of the Court, the present case contains elements that make the writ jurisdiction to be the appropriate, efficacious and speedy remedy against the impugned action. Judicial power and process must not be exercised in viari. The jurisdiction of the learned Banking Court is to be invoked and exercised in accordance with law. The facts of the present case on the face indicate that the jurisdiction and process of the learned Banking Court was extended to the decree-holder as a matter of course without application of mind to the causes and grounds for the past abortive execution proceedings by the respondent, bank. Moreover, the order sheet also conveys the distinct impression that the coercive process of the learned Banking Court has been exercised as a threat rather than for enforcement as a judicial order. Hence the inclination of the Court to grant hearing in the matter to save time, focus the proceedings of the learned Banking Court toward lawful exercise of its jurisdiction and for the fair enforcement of the parties' rights and obligations under law.
6. After hearing at some length, the learned counsel for the respondent-Bank has assured that his client shall not press for the petitioner to be arrested until the latter's objections to the maintainability of the execution petition are decided by the learned Banking Court. That assurance would lend some credibility to the actions of the respondent-Bank. It is, therefore, directed that the said assurance shall be duly honoured in proceedings before the learned Banking Court where the objections of the petitioner to maintainability of the execution proceedings shall be heard and decided in accordance with law before any coercive action is taken against the petitioner.
Disposed of accordingly.