1. ' ZIA PERWEZ, J.---The respondent has moved listed application under section 151 CPC on 23-1-2006.
2. The appellant opposed the application by filing the counter-affidavit. In the application the respondent has prayed for the following relief:-- "It is, therefore, most humbly prayed that this Hon'ble Court in the joint statement may be pleased to allow the respondent bank to convert the date, or in alternate may be pleased to set aside the judgment dated 24-12-2003 and decide the matter on merits after hearing both the parties."
3. ' Appellant challenged the impugned judgment and decree passed in Suit No,29/2002 by filing this appeal. On 24-12-2003 a joint statement duly signed by learned counsel for the parties was filed in which it was stated that the parties have mutually agreed on the following terms:--
(1) Undisputed outstanding amount as on 15-1-1994 would be taken as Rs,3,601,788.31.
(2) Markup from 1-1-1994 to 19-3-1994 would be changed at the rate of 51 paisa per thousand per day.
(3) Cost of funds to be charged from 20-3-1994 at the rate of 8% p.a. On daily product basis till the entire amount stands repaid.
4. ' On the basis of above statement learned counsel for both the parties made a joint request that the appeal may be disposed of and as such vide order dated 24-12-2003 the appeal was disposed of.
5. ' Contention of Mr. Kh. Naveed Ahmed, learned counsel for the respondent, is that in clause 3 of joint statement due to oversight the date for cost of funds has been wrongly mentioned as 20-3-1994 instead of date of default that is 31-3-2000 and in clause II mark up from 1-1-1994 to 19-3-1994 is mentioned instead of 1-1-1994 to 13-3-2000. He contended that due to this oversight the bank has suffered loss of Rs,3.6 million. He further contended that the learned counsel for the respondent at the relevant time signed the statement without consulting the respondent bank or any of its officers. That The application under section 151, C.P.C. Is maintainable as the respondent has not sought review Out correction of date in the consent order. However, at the same time Mr. Khawaja Naveed Advocate further contended that in the alternative the application may be treated as one for review and granted. Reliance is placed upon the cases of Metal Containers Employees Union v.
6. Ali Anwar Changhro (2001 YLR 1818) and Messrs Baghpatee Service (Pvt.) Ltd. And 6 others v. M/s. Allied Bank of Pakistan Ltd. (2001 CLC 1363).
7. ' On the other hand Mr. Raja Qasit Nawaz Khan, learned counsel for the appellant, while opposing the application has advanced his detailed arguments to show that initially the bank had charged excess mark up and mark up on mark up and the joint statement filed by the learned counsel was based on the amount recoverable in pursuance of the relevant circulars issued by the State Bank of Pakistan. He further contended that the joint statement was prepared in the light of the orders and policy direction issued by the State Bank of Pakistan and reflected in the respective circulars.
8. The dates were entered deliberately and consciously without any error or mistake on the part of either party. He has also placed copies of such circulars on record. Powers of review are not available in the cases under the provisions of Financial Institutions (Recovery of Finances)
9. Ordinance, 2001. He further relied on the following:--
1. Mark up on Mark up
(a) BCD Circular No,13
(b) BCD Circular No,31
(c) BCD Circular No,32
(d) BCD Circular NO.33
(e) Hashwani Hotels Limited v. Federation of Pakistan & others (PLD 1997 SC 315)
(f) M/s. Habib Bank Limited v. M/s. Schon Textiles Ltd. (2001 YLR 1244)
(g) Agricultural Development Bank of Pakistan v. Jasarat Hussain (2002 CLC 93)
(h) Allied Bank of Pakistan Ltd. Faisalabad v. M/s. Aisha Garments, ETC (2002 AC 104)
(i) Textile Management (Pvt.) Ltd. v. N.I.T. (2002 CLD 276)
(j) Allied Bank of Pakistan Ltd. v. Messrs Modern Metallic Services (2003 CLD 1352)
(k) Allied Bank of Pakistan Ltd. v. Mrs. Fahmida and others (2004 CLD 110).
(1) Nasir Mushtaq Vohra v. Crescent Investment Bank Ltd. (2005 SLJ 35).
2. Agreement without consideration
(a) United Bank Ltd. v. Ch. Ghulam Hussain (1998 CLC 816) (Lahore).
(b) Habib Bank Ltd. v. A.B.M. Graner (Pvt.) Ltd. (PLD 2001 Kar. 264).
(c) 2001 MLD 1351 (Karachi)
(d) 2001 YLR 1549
(e) Adul Basit v. Bank of Punjab (2003 CLD 751)
(f) Yussra Textile Coorporation v. PICIC Commercial Bank Ltd. (2003 CLD 905)
(g) Habib Bank Ltd. v. Al-Jalal Textile Mills Ltd. (2003 CLD 1007).
3. Mark Up beyond expiry period.
(a) National Bank of Pakistan v. Punjab Building Products Ltd. (PLD 1998 Karachi 302).
(b) I.C.P. v. Messrs Chiniot Textile Mills Ltd. (PLD 1998 Karachi 316)
(c) United Bank Ltd. v Central Cotton Mills Ltd. (1999 CLC 1374)
(d) Habib Bank Ltd. v. Pakistan National Textile Mills (2001 MLD 1137)
(e) United Bank Ltd. v. Mian Aftab Ahmed (2001 MLD 1332)
(f) Habib Bank Ltd. v. Balochsitan Gum Industries (Pvt.) Ltd. (2001 YLR 81)
4. Statement of Account
(a) Muslim Commercial Bank Ltd. v. Razwan Textile Mills Ltd. (1998 MLD 529)
(b) Muhammad Yusaf v. A.D.B.P. (2002 CLD 1270)
(c) Gul Habib v. Habib Bank Ltd. (PLD 1983 Pesh. 31)
(d) Muhammad Sulleman v. Habib Bank Ltd. (1988 CLC 969)
(e) Industrial Development Bank of Pakistan v. Al-Mansoor Ltd. (PLD 1989 Pesh. 191)
10. (0 Bakers Equity Ltd. v. Bentonite Pakistan Ltd. (2003 CLD 931)
(g) International Traders v. Union Bank Ltd. (2003 CLD 1464)
(h) Bank of. Khyber v. Spencer Distribution Ltd. (2003 CLD 1406)
(i) Central Bank of India v. S. Muhammad Abdul Jalil Shan (1999 CLC 671)
(j) Muhammad Siddiq Muhammad Umar v. Australasia Bank Ltd. (PLD 1966 SC 684)
(k) Citibank N.A., A Banking Company v. Riaz Ahmed (2000 CLC 847)
5. Serious and Bona fide
(a) First Grindlays Modaraba v. Pakland Cement Ltd. (2000 CLC 2017).
(b) Sh. Muhammad Naeem v. Habib Bank Ltd. (2003 CLD.606)
6. Prospect Payment Bonus
(a) City Bank v. Tariq Mohsin Siddiqui (PLD 1999 Kar. 196)
(b) Askari Commercial Bank Ltd. v. Pakland Cement (PLD 2000 Kar. 246)
(c) Pakistan Industrial Credit and Investment Corporation Ltd. (2001 CLC 1551)
11. ' Heard the learned counsel for the parties and perused the material available on record.
12. ' From the perusal of record it is evident that the consent order was passed on 24-12-2003 while the instant application is moved on 23-1-2006 i,e, after more than two years.
13. ' The respondents challenged the same at the time of execution and in subsequent Appeal No,96/2004 where a Division Bench of this Court after examining the record was pleased to observe as under:- "We are in agreement with the view taken by the learned Executing Court that it could not travel beyond the decree passed by this Court, in First Appeal No,24 of 2003. Even if we ignore the commissioner's report as in our view, there was no justification for any such appointment or seeking any report, the liability of the judgment debtor shall remain the same. Even otherwise, it is well settled that an Executing Court is not competent to modify or amend the decree/order passed by a trial Court or the appellate Court. In fact, if the appellant had any grievance it should have been agitated before the Court which passed the consent order and not before the Executing Court. Resultantly, we do not find any substance in this appeal which is dismissed in limine, however, with no order as to costs."
14. ' Contention of Mr. Kh. Naveed Ahmed is that it was under the direction, of the Division Bench that present application has been filed, the perusal of the above reproduced order do not show any direction, rather in my humble view it goes to show that the compromise was based on the figures as available on record and produced before the Court which does not leave any doubt that the parties acted on the basis of the record and the dates correspond to the statement based on the State Bank Circulars and prepared by the ,respondent Bank itself. This position hardly leaves room for any doubt that there was any mistake at the time of preparing the same. The Court is in, no way concerned with the signing and submitting the joint statement. It is an independent act of the parties and not an act of the Court.
15. ' Consent order was passed on the basis of the joint statement duly signed by learned counsel for the appellants as well as that of the respondent namely Mr. Muhammad Rashid Khan. The Vakalatnama filed by Mr. Muhammad Rashid Khan Advocate bears the signature of Manager of respondent bank and it gives specific power to withdraw or compromise the above matter. All this goes to show that the respondents are now trying to back out to its commitment by taking fresh pleas. The plea of the learned counsel that earlier counsel appearing for the respondent signed the statement without consent of the respondent was not followed by any action to set aside the same for over two years in spite of the fact that the respondents were fully aware of the compromise before this Court. Mr. Khawaja Naveed could not point out any action initiated by the Bank against the learned advocate for the respondent for acting without authority. Even otherwise it has been very clearly laid down by the Hon'ble Supreme Court that case mismanaged by a counsel is no ground for review.
16. ' As such question of correction of any error or mistake does not arise. It is apparent on record that the compromise signed and submitted before the Court, based on the acknowledgement of the bank by way of statement placed on record, would not lead to an inference as to error committed by the parties or subsequent orders passed by, this Court on the basis of compromise showing the same date. The same would not call for exercise of discretionary power under section 151 CPC.
17. ' Mr. Khawaja Naveed Advocate, in the alternative, contended that even if the application under section 151 CPC is not maintainable this Court may exercise its powers to review the case. In this regard the Hon'ble Supreme Court has already laid down the principles for exercise of power of review by Courts acting under special' law. The Financial Institutions (Recovery of Finances)
18. Ordinance, 2001 like West Pakistan Urban Rent Restriction Ordinance, is a special enactment and the principles laid down by the Apex Court for exercise of powers for review under special enactments are attracted to this case as laid down in the case of Muzaffar Ali v. Muhammad Shafi (PLD 1981 SC 94) as follows:-- "Taking up the first reasoning, it states that as a petition for review, according to the High Court procedure and practice, is to be heard in that Court by the same judge, therefore, this incident or circumstance was sufficient by itself to hold that a power of review as such could be considered to vest in the said Judge under the Ordinance. This argument, respectfully speaking, deals more with the procedure as to how a review petition, if competent, is to be heard or disposed of, but cannot be a basis for holding that by itself it amounts to a conferment of jurisdiction of review qua the types of cases involved herein. The jurisdiction to review must flow from some express provision of a statute, and as there is no such provision which confers jurisdiction on High Court to review orders passed by it in Second Appeals under the Ordinance, the fact that how the High Court otherwise disposes of various reviews in general cannot be a deciding factor in the overall contest of this case."
19. The exercise of powers under a special enactment does not imply a power to review earlier orders in exercise of inherent powers unless the power of review is specifically conferred by such statute.
20. In the case of Messrs Baghpatee Services (Supra) the Division Bench of this Court after observing in paragraph 4 of the judgment that indeed there could be no cavil that the power of review must be conferred by statute and that section 27 of the Banking Companies (Recovery of Loans, Advances, Credit & Finances) Act 1997 has to be given its full effect proceeded to examine and distinguish the power to review as distinct from the power in the light of the question whether recalling of an earlier order not passed on merits but only on account of non-appearance of a party would really amount to a review of the earlier order? And after examining of the case law on the subject this Court held that:-- "In view of the above discussion, we are of the considered opinion that there is a clear distinction between review of an earlier order and recalling one passed on account of nonappearance of a party. In the former the merits of an earlier order are considered but in the latter only the cause of non-appearance is to be taken into consideration . In the former case the power must be conferred by statute but in the latter it stems from the principles of natural justice required to be read\ into every law. The former is excluded by section 27 but the latter continues to remain available."
21. ' In case of Metal Containers Employees Union (Supra) when an objection as to the maintainability of the petition filed before this Court was raised after examining the provisions of Establishment of the Office of Ombudsman for the Province of Sindh Ordinance, 1991, the Division Bench of this Court was pleased to hold as under:- "Section 32 of the Establishment of the Office of Ombudsman for the Province of Sindh Ordinance, 1991 provides for filing of an appeal/representation before the Governor of Sindh 'by a party aggrieved by an order passed by the learned Provincial Ombudsman and in view of the above provision resort could not be had to the Constitutional, jurisdiction of this Court in view of settled principle that when an adequate, alternate and efficacious remedy is available to an aggrieved party against en order passed by a government functionary in exercise of powers under a Statute then resort to Constitutional jurisdiction cannot be, allowed. It was submitted on behalf of the petitioner that the order, which has been challenged in this Constitutional Petition was an absolutely illegal and void order in as much as the Provincial Mohtasib Establishment Ordinance did not confer power on the Provincial Ombudsman to review his orders and in the circumstances a Constitutional Petition was maintainable .As it amounted to challenging an illegal, unlawful and void order. This contention is without any force and requires no consideration. The order dated 28- 7-1998 is not in the nature of a review order but an order recalling an illegal/unlawful order passed earlier on the basis of wrong information and concealment of facts by the petitioner. In view of the wrong information and concealment of facts the earlier order had become illegal, unlawful and void and the learned Ombudsman by his order dated 28-7-1998 had merely recalled the illegal and void order, which in no way could be considered to be a review of the earlier order. Even, if a review order, the fact remains that the same should and ought to have been challenged before the Governor and the petitioner would not be able to claim the right to invoke the Constitutional jurisdiction of this Court on the ground that the impugned order was an illegal, unlawful and void order, therefore, it would not require to be challenged before the authority nominated under the aforesaid Ordinance and a Constitutional Petition would be maintainable. This presumption was not at all called for and was absolutely contrary to the law."
22. ' Arguments advanced by Mr. Khawaja Naveed, learned Advocate for the applicants/respondent, do not find support from the above cases relied upon by him at all.
23. Learned counsel for the respondent has not been able to produce any law or precedent to substantiate his plea that such consent order which is based on record where the change of the dates may seriously prejudice the right of the opposite party can be reviewed or interfered with by this Court after a long delay as mentioned above. Mere prayer for converting the date on the ground of an oversight does not find support from record. No violation of any State Bank Circular was pointed out. However, as it is beyond the scope of the present application a detailed and elaborate examination of the circulars amounting to review of the case on merits is not called for.
24. ' The case law relied upon by learned counsel for the respondent Bank are distinguishable and not attracted to the facts of the present case.
25. ' For the foregoing reasons as there is no ground of error in the consent order by Court which may call for correction, the compromise being based on statement cited. No ground for recall of order dated 24-12-2003 is made out nor the powers of review are available. The application is misconceived and accordingly dismissed.