The relationship of the petitioner and Respondent No; 2, is that one of banker and customer and consequent upon commission of default, Respondent No, 2 instituted a recovery, suit (Suit No, 547/2000) for Rs, 7,57,091.87 with make up etc. in the Bening Court-II, Lahore. The suit was decreed with costs alongwith mark up till realization, in favour of Respondent No, 2 and against the petitioner, vide judgment and decree dated 17.3.2001: The petitioner filed appeal against judgment and decree dated 17.3.2001, which also men the fate of dismissal. Thereafter, during the course of execution. Court auctioneer was appointed on 26.5.2001 for the sale of mortgaged property, through auction. The auction was held on 12.12.2002 and according to the auction report M/s. Sheikh Tariq Nazir and Raza Ahmad were declared successful bidder, being the highest bidder (Rs, 650,000/-) Sale was confirmed in favour of the successful bidders, vide order dated 18.1.2003, and as a result thereof the sale certificate was issued on 14.4.2003. Sale-deed was registered in favour of auction purchasers i,e, Respondents No, 4 and 5
2. The petitioner, two and half year later, moved. an application under Order XXI Rule 90 CPC, challenging the sale of mortgaged property on the grounds: that no auction was conducted at site and proceedings were fraudulent; that auction took place when the petitioner was in jail in case FIR No, 215 of 2002, (registered under Section 302/34 PPC); that the petitioner was not intimated about auction proceedings. that the property is only source of income of the petitioner; that the petitioner is willing to pay the decretal amount and that the petitioner acquired knowledge of the sale through auction of his property a week before filing the application, from revenue officials. The respondent contested the application, filed reply and raised legal objections. Learned Executing Court, dismissed the application, vide order dated 30.7.2005, in view of the bar contained in Section 27 of Financial Institutions (Recovery of Finances) Ordnance, 2001, and also on the ground of delay.
Hence this petition.
3. Learned counsel for the petitioner has submitted that the petitioner, preferred appeal (RFA No, 370/2001) against the decree and on dismissal of the appeal, the decree of the Banking Court stood merged into appellate decree. Executing Court ordered the auction of the property in the course of executing the decree of the Banking Court, which on dismissal of RFA has ceased to exist.
He has added that the entire proceedings are without jurisdiction. Power to execute a decree vests in a Court, when decree is executable and not otherwise. Learned counsel has supported his contention by referring to the case of F.A. Khan vs. The Government of Pakistan (PLD 1964 SC 520), wherein it Was held that the order of the original authority disappears and merges into appellate order. Learned counsel has further submitted that the question of executability of decree, is a pure question of law and its determination lies with this Court in its Constitutional jurisdiction. It was further submitted that the questions urged in the application under Order XXI Rule 90 CPC can only be resolved legally, when evidence is recorded and a proper inquiry is held. Dismissal of application summarily without holding proper inquiry is not sustainable. Finding of fact arrived at without any inquiry, is without jurisdiction and such order can validly be assailed in writ jurisdiction.
Case of The Commissioner and another vs. Mian Sher Muhammad (1972 SCMR 395) was referred to support this contention. While referring to Order XXI Rule 66 CPC, it was contended that the value of the property has not been ascertained in accordance with law. It is required that valuation be determined after receiving its estimate from both the parties. Support in this contention was found by the learned counsel, from the case of Barkat Ram vs. Bhagwan Singh and others (AIR 1940 Lah.
394) and Gajadher Prasad and others vs. Babu Bhakta Ratan and others (AIR 1973 SC 2593). It was contended that improper and under valuation of property, is a material irregularity. Case of Nagina Silk Mills, Lyallpur vs. The Income Tax Officer, A-Ward Layallpur and Income Tax Appellate Tribunal, Pakistan (PLD 1993 Lah 706) was referred to contend that non-compliance of Rule 66 of Order XXI of CPC, vitiates sale. Learned counsel has placed reliance on the case of Islamic Republic of Pakistan vs. Muhammad Saeed (PLD 1961 SC 192), to submit that finding of the executing Court is erroneous that an Executing Court cannot go behind the decree. Court has to see and examine that decree under execution, is capable of execution. Case of Fakir Abdullah and others vs. Government of Sindh through Secretary to Government of Sindh, Revenue Department, Sindh Secretariat, Karachi and others (PLD 2001 SC 131) was also referred in this respect.
4. Learned counsel has addressed lengthy arguments on the question of maintainability of the writ petition. It was contended that the remedies provided under general law, if in conflict with Constitutional remedy, the latter will prevail. After referring to the cases of Ch. Altaf Hussain and others vs. The Chief Settlement Commissioner, Pakistan, Lahore and others (PLD 1965 SC. 68) and Ali Muhammad v. Hussain Bakhsh and others (PLD 1976 SC 37), learned counsel argued that even on dismissal of appeal on the question of limitation, a writ petition can be filed and rigid application of doctrine of alternate remedy is uncalled for. Learned counsel added that non-filing of appeal or revision does not create an order passed without jurisdiction into, an order passed with jurisdiction. To support this contention, cases of Yousfalli Mulla Noorbhoy vs. The King (PLD 1949 P.C. 108) and Khuda Bakhsh vs. Khushi Muhammad and 3 others (PLD 1976 SC 208), were referred.
Learned counsel added that availing the remedy of appeal or revision under the relevant statute is justified when order impugned has been passed by exercising jurisdiction properly, otherwise Constitutional remedy is just and proper. Reliance was placed on the cases of Al-Ahram Builders (Put.).Ltd. vs. Income Tax Appellate Tribunal (1993 SCMR 29), Sadaqat Enterpftes vs. Islamic Republic of Pakistan and others (1994 CLC 1802), Learned counsel has submitted that it has been consistently held by the Superior Courts that when recourse to alternate remedy will result into prolong litigation and impugned order being patently illegal, void and wanting jurisdiction, then to nip the mischief in the bud, the right course is to invoke Constitutional jurisdiction. As authority for this proposition, learned counsel cited the cases of Khalid Mehmood vs. Collector of Customs, Customs House Lahore (1999 SCMR 1881) and Allah Khan vs. S.H.O. Police Station Mouladad (1999 PCrl. LT 781).
5. Learned counsel has vehemently contended that law enunciated and principle laid in the cases of Lt. Col. Nawabzada Muhammad Amir Khan vs. The Controller of Estate Duty etc. (PLD 1961 SC 119), Nagina Silk Mills, Lyallpur (supra), Salahuddin and 2 others us. Frontier Sugar Mills & Distillery Ltd.
Tokht Bhai and 10 others (PLD 1975 SC 244), and Sindh Employees' Social Security Institution vs. Dr. Mumtaz Ali Taj and another (PLD 1975 SC 450), is that a Constitutional petition is competent even where right of statutory appeal is not availed. Learned counsel made a reference to the cases of Asdallah Mangi and others us. Pakistan International Airlines Corporation and others (2000 SCMR 445) and Fiaz Bakhsh and others us. Deputy Commissioner/Land Acquisition Officer, Bahawalpur and others (2006 SCMR 219) to contend that the main object of the provisions of as contained in Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 is the enforcement of right and not the establishment of legal rights. He added that to seek enforcement of right the petitioner before this Court has to show, actual infringement of the right so asserted. It was submitted at the end of arguments that it was duty of the Court to apply correct law. He supported his contention by making a reference to the case of Rehmat Elahi vs. Messer for Kabushiki Kaisha (PLD 1992 SC 417), wherein it has been held that pleadings of the parties do not control, the application of law.
6. Learned counsel for the Respondent No, 2 on the other hand has submitted that the petitioner has not come to this Court, with clean hands. He has stated in Grounds No, 2 and 3 of his application that the petitioner was arrested in case FIR No, 215/2005 during the execution proceedings and remained in jail as he was sentenced capital punishment of 25 years and as such, the auction was not in his knowledge. He added that the petitioner was arrested on 20.5.2002 after the suit was decreed against him. The petitioner was released on bail on 15.10.2002 and the auction was conduced two months after his bail.The petitioner was re-arrested on 10.1.2005.
Learned counsel has submitted that auction was conducted on 12.12.2002 and sale was confirmed on 18.1.2003 and sale certificate was issued on .14.4.2003 while sale-deed was registered on 23.2.2004. The application under Order XXI Rule 90 CPC was filed years, after the confirmation of sale. An application under Rule 90 of Order XXI CPC, c m be filed within the period of one month from the submission of auction report. An application under Rule 90 CPC, without deposit of 20% of the auction price is not competent. The order impugned in this petition, is assailable in appeal, under Section 22 of the Financial Institutions (Recover), of Finances) Ordinance, 2001. Learned counsel has submitted that according to dictum laid in the case of Agha Abbas Haider Khan vs. Zarai Taraqiati Bank Limited through Branch Manager (2006 CLD 764), the only remedy' available to the Petitioner was the remedy of appeal and filing of writ after the lapse of prescribed period for filing the appeal, according to law laid down in the ease of Ghulam Mustafa Bughiio and another (2006 CLD 528), is not legally permissible. Order has attained finality and instant petition has been filed to circumvent the question of limitation. Learned counsel has submitted that in view of remedy of appeal, the writ is not competent and supported his contention by placing reliance on the cases of Messers United Bank Limited vs. Banking Court No, IV, Lahore and others (2004 CLC 1114) and Messers Unicorn Enterprises vs. Banking Court No, 5, City Court Building Karachi and 2 others (2004 CLD 1452). Learned counsel has submitted that the petitioner was aware of the pendency of the suit against him. His filed application for leave to defend the suit. He cannot escape his liability by asserting evasively that he acquired knowledge of auction in the years 2005.
His silence from 15.10.2002 to 10.01.2005 is without any plausible explanation (time between his bail and re-arrest). Learned counsel submitted that the impugned order does not call for interference as it has been passed in accordance with law.
7. Learned counsel for Respondents No, 4 and 5 has submitted that auction purchasers participated in auction and were declared successful bidders. They deposited bid money according to terms of auction and no objection was raised on auction report within the stipulated period of one month. Sale. on confirmation of auction, issuance of sale certificate and registration of sale-deed, has attained finality. It has become past-and closed transaction. Learned counsel has submitted that the allegation that no auction was conducted at the site, is false and no proof in this respect as been placed on record by the petitioner. The property was purchased in open auction against adequate price prevalent can the relevant time. He submitted that adequacy of auction price can be ascertained from the perusal of application filed under. Rule 90 of Order XXI, where the petitioner assailed auction on various grounds without asserting anything regarding inadequacy of price.
8. Heard learned counsel for the parties and record perused.
9. The application moved by the petitioner, before the Banking Court, was under Rule 90 of Order XXI CPC, which was filed beyond the period of 30 days, without an application for the condonation of delay and without the deposit of 20%' of the sum realized at the sale. Such application could' not proceed under the above provision of law, for want of compliance of mandatory provisions of law.
Mis-description of law is inconsequential and the application of the petitioner can he considered, filed under Section 19(7) of the Financial Institutions (Recover of Finances) Ordinance, 2001. Order passed under Section 19(7) of the Ordinance XLVI of 2001 or under Rule 90(ibid) is appealable under Section 22 of the Ordinance XLVI of 2001. Admittedly no appeal has been filed and instead order impugned is assailed in this petition after 2% years of the auction. The petitioner has justified filing of the Constitutional petition on the plea that decree of the Banking Court merged into appellate decree and after affirmation of decree in appeal (RFA No, 370/2001) the decree in existence is of Appellate Court. The stance of the petitioner on the question of executability of the decree of the Banking Court, is not, convincing. The decree, execution whereof, is under challenge in this petition, was passed under the provisions of special statute, Banking Companies (Recovery of Loans, Advances and Finances) Act, 1997. Financial Institutions (Recovery of Finances) Ordinance, 2001, came into force on 30.8.2001 and proceedings for execution of the decree in the case in hand remained pending under the provisions of Ordinance, 2001. Section 19 Governs the execution of the decree, which is reproduced hereunder: "19. Execution 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 execution proceedings without the need to file a separate application- and no fresh notice need be issued to the judgment deport in this regard.
Particulars of the mortgaged, pledged or hypothecated property and other assets of the 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 execution of its decree on the expiry of N 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 execution proceedings.
(2) The decree of the Banking Court shall be executed in accordance with the provisions of the Code of Civil Procedure 1908 (Act V of 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 acquired benami in the name of an ostensible owner.
It is evident from the perusal of the above provision of law that neither filing of a separate application for execution of the decree nor issuance of fresh notice, is needed to execute the decree of Banking Court. The execution application in the instant case was filed on 23.4.2001 and the proceedings stood converted under the provisions of the Ordinance, XLVI of 2001, on its enforcement. The suit automatically a stands converted into execution proceedings. Proviso to sub-section (1) of Section 19 of Ordinance, 2001, reflects that the record if summoned by the High Court for the purposes of hearing the appeal, would not result into discontinuation of execution proceedings, execution will continue on the basis of the photo-copies of the relevant documents, required, under law to be retained by the Banking Court. Various modes for execution of the decree, have been prescribed in sub-section (2) of Section 19 of Ordinance, 2001. Banking Court if considers appropriate can proceed to execute the decree in any manner at the desire of the decree holder.
Special statute (Ordinance XLVI of 2001) has provided its own manner and procedure for execution of a decree. Any provision in general law so far it is repugnant to special statute, will give way to contrary provision in the Ordinance. Provisions of Ordinance 2001 will override the general provisions of CPC which are contrary to Ordinance.
While holding so, am fortified by the dictum of law laid down by the Hon'ble Supreme Court of Pakistan, in the case of Hudabia Textile Mills Ltd. and another vs. Allied Bank of Pakistan Ltd. and another (PLD 1987 SC 512). Financial Institutions (Recovery of Finances) Ordinance 2001, provides that decree in a banking suit stands converted into execution and no formal application is required. No fresh application is needed even when the decree of Banking Court is merged into appellate decree. Appellate decree automatically stands converted into execution. The stand taken by the petitioner that non-filing of fresh application for execution of appellate decree, had rendered the execution of decree of Banking Court without jurisdiction, has no legal force.
Impugned proceedings, with regard to sale of the property through auction, are devoid of any illegality or jurisdictional error.
10. Having held that the decree was capable of execution, now I will revert to the question of maintainability of the writ petition. Process of auction, its confirmation and issuance of sale certificate stood concluded in since April, 2003. Sale-deed was registered in favour of the auction purchaser on 23.2.2004. Provisions of sub-sections (5) to (12) of Section 15 are also applicable to the sales under Section 19 of the Ordinance, 2001. A mortgagor is divested of any right, title and interest in the mortgage property, upon registration of the sale-deed, within the contemplation of Section 15(8) of the Ordinance, 2001. The right which the petitioner had with regard to the mortgage property stood extinguished long before the filing of this petition. The petitioner has approached this Court in its Constitutional jurisdiction with unclean hands. He has concealed the factum of his release on bail on 15.10.2002. He has falsely stated that he was in judicial lock up during the period when auction was conducted, confirmed and sale certificate was issued. He was arrested again on 10.1.2005. The petitioner was aware of recovery suit, which he contested through filing of application for leave to defend. The petitioner thereafter challenged the decree in appeal (RFA No, 370/2001), which was dismissed on 11.10.2001. The petitioner has failed to watch his interest vigilantly. He has neither paid the decretal amount, nor has made any effort to file objection on auction report before its confirmation. He was not bothered about the outcome of the decree, passed against him. His silence over a period of 2% years and neglect to pay his liability does not justify interference in the Constitutional jurisdiction. Moreso when law has provided remedy of appeal against impugned order dated 30.7.2005. Remedy of appeal provided under Section 22 of Financial Institutions (Recovery of Finances) Ordinance, 2001, against the order of Banking Court was adequate and efficacious. The petition, without availing the remedy of appeal, is not maintainable under Article 199(1) of the Constitution of Islamic Republic of Pakistan, 1973. There is nothing on record to show that the circumstances beyond the control of the petitioner, existed that abstained the petitioner to challenge, the order impugned in the appeal. An appealable order, which has been passed by a Court of competent jurisdiction, is not open to exception in Constitutional jurisdiction, invoked by a petitioner, after the lapse of prescribed period 'of limitation for filing the appeal. There is plethora of case law on the subject including the judgments in the cases of Messers United Bank Limited vs. Banking Court No, IV, Lahore and others (2004 CLD 1114) and Messers Unicorn Enterprises vs, Banking. Court No, 5, City Court Building Karachi and 2 others (2004 CLC 1452).
11. Viewing the case of the petitioner from either angle, the petition in hand is not competent and is accordingly dismissed, with no order as to costs.