' MIAN SAQIB NISAR, J.---The learned Banking Court, Faisalabad (hereinafter referred to as the "Court") has passed the impugned order dated 29-5-2008 on an application filed by the respondent under section 152, C.P.C., wherein it has been held as follows:- "On the perusal of the judgment and decree it appears that date of expiry was considered as default which is not correct approach but on the contrary date of default is the date of judgment and decree when it is held that the defendant has committed any default. Accordingly the application is accepted and the decree holder bank is directed to file statement of cost of funds in accordance with the above observation on the next date of hearing. To come up on 16-6-2008."
2. Briefly the facts of the case are that the appellant brought a suit for the recovery of an amount of Rs,11,40,516 along with cost of funds against the respondent., The suit was earlier ex parte decreed on 6-3-2006, but subsequently upon an application of the respondent, the decree was set aside and thereafter, vide judgment and decree dated 10-9-2007 while dismissing the defendant's application for leave to appear and defend, the suit was decreed to the tune of R.s.5,71,158. In the judgment, the Court held "Accordingly with the rejection of the P.L.A. The suit of the plaintiff-Bank is hereby decreed to the extent of Rs,5,71,158 in favour of the plaintiff and against the defendant with cost of funds and cost of suit at the stipulated rate from the date of default till the full and final realization of the decretal amount with costs." The said judgment and decree has not been further challenged by the respondent and has attained finality. However, the respondent moved an application under section 152, C.P.C. Stating in paragraph No,4 thereof "----Admittedly, under subsection 3 of section 3, the decree shall provide for payment of the cost of funds as determined under subsection 2 but in this particular case, there was no date of default mentioned in the plaint by the plaintiff/decree holder and even otherwise, the date of default is a date, when this learned Court has passed the decree against the petitioner/judgment debtor while declaring the defaulter.
"It is further mentioned in paragraph No,6 'That there is no specific date of default mentioned in the judgment and decree, which is yet to be determined and as such the petitioner/judgment debtor is under legal obligation to pay such cost of funds from the date of passing of judgment and decree."
From the prayer clause, it is spelt out that the respondent was seeking an order from the Court for the determination of the date of default and the calculation of cost of funds on account thereof.
This application has been contested by the appellant, but was allowed through the impugned order.
3. The learned counsel for the appellant states that under the provisions of section 27 of the Financial Institutions (Recovery of Finances) Ordinance, 2001 ("the Ordinance"), the Court has no jurisdiction to review its own judgments, decrees, orders etc., however, it is only on account of the proviso to the section that the Court is empowered to correct any clerical or typographical mistake in the judgments etc; but as due to the impugned order, the judgment and decree dated 10-9-1997 stands reviewed and modified, therefore, the same is without jurisdiction.
4. The learned counsel for the respondent, when questioned, at the very outset has submitted that through the said application, no review was being sought, rather according to him the case is squarely covered by section 152 C.P.C., which is analogous to the proviso to section 27 ibid; he further by making reference to the judgments reported as K.A.S.B. Bank Limited v. Abdul Qadir Jangda 2007 CLD 1639, Sh. Abdul Sattar Lasi v. Federation of Pakistan and 6 others 2006 CLD 18, Industrial Development Bank of Pakistan v. Pakistan Belting (Pvt.) Limited and 5 others 2006 CLD 808, and Messrs Eclipse Dry Cleaners and another v. Messrs Imperial Chemical Industries Pakistan Ltd. And 2 others 1989 SCM R 1708, contends that in the cases pertaining to the cost of funds covered by section 3 of the Ordinance, the date of default is the date of the decree and not a date prior thereto, but as the Court had omitted to specify the date with the consequences that the appellant by taking advantage of this lapse, wants to recovery of that amounts (cost of funds) which were not awarded to him; it therefore, has become expedient for the respondent to seek the appropriate remedy under the law for the supply of accidental slip and the omission in the judgment and decree.
5. We have heard the learned counsel for the parties. The Ordinance is a special law covering a particular field of litigation and the courts constituted thereunder are vested with both the civil as well as criminal jurisdiction. Section 7(2) prescribes that the Court shall in all matters with respect to which the procedure has not been provided for in the Ordinance, apply the law laid down in the Code of Civil Procedure, 1908 (Act V of 1908), and the Code of Criminal Procedure, 1898 (Act V of 1898), meaning thereby that where the Ordinance itself provides the specific procedure for resolving a proposition, under the settled principles of construction of the statutes, the provisions of general law not only to that extent, but even regarding the inherent jurisdiction of the Court available under the Civil Procedure Code shall not be attracted.
6. In the light of the above legal position, it is germane to examine if the proviso to section 27 of the Ordinance caters for the issue involved in the matter and section 152, C.P.C. Was inapplicable; both the provisions are reproduced:-- ' Proviso:-- "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."
Section 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."
From the plain reading of the noted provisions, it is conspicuously clear that the cases pertaining to any error in the judgment and decree etc. Of the Court shall only be regulated by the proviso, rather the general and inherent power under section 152, C.P.C., which shall not be applicable in the presence of the specific provisions. However, the proviso is restricted in empowering the Court to correct the typographical error etc. And unlike the section ibid, it does not provide for supplying any accidental slip or omission. The question, therefore, for the consideration and determination shall be, if the omission of the Court to mention the date of default is the one falling within the purview of the proviso.
7. Admittedly in the judgment and decree, the date of default has not been specified; however, by no stretch of interpretation, this lapse can be construed as a typographical error etc rather it is a simple case of slip/omission of the Court and had it been the judgment-decree of the Civil Court, C the provisions of section 152. C.P.C. Could be validly invoked. But for the supply of such an omission/slip, the Court had no jurisdiction under the said proviso, therefore, the impugned order being beyond the scope of the noted law cannot sustain.
8.Despite the above, the proposition still remains as to how, and by which forum it should be determined if the appellant is entitled to the cost from the date prior to the institution of the suit or the date of the decree. To our mind, the solution can be achieved by resorting to the provisions of section 47, C.P.C. Under which, the court has the power to decide the question about the execution, satisfaction and discharge of the decree and such jurisdiction undoubtedly includes the power of the court to interpret the judgment-decree on the basis of the law applicable, which, in this case, shall be section 3 of the Ordinance and as claimed by the. Learned counsel for the respondent, it already has been interpreted in the respondent's favour by virtue of the case-law cited by him.
Therefore, we hold that if approached, the Executing Court shall be well within its jurisdiction to adjudicate as to from which date the costs of funds should be allowed to the appellant.
' In the light of above, we are of the view that the impugned order has not been passed by the Court in exercise of its proper jurisdiction, therefore, the same is hereby set aside. The appeal is accordingly allowed.