' MUHAMMAD ATHAR SAEED, J.---This appeal had been filed under Order XLIII, Rule 1(r), C.P.C. Against the order of the Banking Court dated 13-4-2010 in Suit No,757 of 1997 Execution Application No, 494 of 1997 whereby the application filed by the present appellant under Order XXXIX, Rules 1 and 2, C.P.C. Was dismissed.
2. This matter was initially fixed before a Division Bench but thereafter it was fixed before a Single Bench which, vide order dated 3-3-2011 directed the office to place the matter before the honourable Chief Justice for deciding the issue as to before which Bench this matter is to be fixed.
The office placed the matter before the honourable Chief Justice and the honourable Chief Justice issued the following directions:-- "It appears I/O arises under the Banking jurisdiction per FIO, 2001. In terms of section 22 of FIO, 2001 Appeal lies before a Bench of not less than 2 Judges of H.C. Prima facie L.H.C. Rules as applicable to SHC, would not apply in presence of specific provision referred to above. However, put up in D.B. To be examined after hearing the parties and DAG & AG Sindh."
3. Accordingly, the matter was fixed before us to examine the case in the light of the directions of the honourable Chief Justice and the learned Standing Counsel for the Federation of Pakistan and learned Assistant Advocate-General Sindh were also present before us.
4. On 12th April, 2011 the date of hearing, during summary examination of the case we had noted that an application under Order XXXIX, Rules 1 and 2, C.P.C. Had been moved before the learned Banking Court during the execution proceedings and this application was dismissed by the learned Banking Court. We had, therefore, put all the learned counsel on notice and requested the learned AAG and DAG to assist us on the following proposals:--
(1) Whether in view of specific bar under sections 22(6) and 27 of the Financial Institutions (Recovery of Finances) Ordinance, 2001 appeal against the order of the Banking Court could have been filed under Order XLIII, Rule l(r) of the C.P.C. And whether such appeal is maintainable?
(2) If the appeal is maintainable then in view of the unreported judgment of this Court in M.A. No,2 of 2010, and in view of the provisions of C.P.C., whether the appeal has to be heard by a Division Bench Judges or by a Single Bench.
' And all the learned counsel were directed to be prepared to assist the Court on these two proposals.
5. On 20-5-2011 the second date of hearing, we had appointed senior counsel Mr. Mushtaq A.
Memon as Amicus Curie to assist the Court on the above proposals.
6. We have heard Mr. Ghulam Mohiuddin Advocate for the appellant, Mr. S.A.A. Hasni Advocate for respondent No,1, Mr. Saifullah Assistant Advocate-General Sindh and the learned Amicus Curie Mr. Mushtaq A. Mernon.
7. The learned Amicus Curie Mr. Mushtaq A. Memon has very ably assisted this 'Court and submitted that the two different Division Benches of this Court in their judgments delivered in the case of Ms. AFSHAN AHMED v. Messrs HABIB BANK LIMITED and another (2002 CLD 137) and the second Division Bench in its judgment in the case of HABIB BANK LIMITED v. Messrs INDUS LENENTOSE (Pvt.) Ltd. And others (2003 CLD 1788) have held that appeals or revisions filed under the provisions of C.P.C. Against interim orders of the Banking Courts passed under various provisions of Civil Procedure Code are maintainable. He, however, submitted that one of the learned Members of the Division Bench of this Court in the case of INDUS LENENTOSE (PVT.) LTD. Quoted supra Khilji Arif Hussain J. Judge of this Court (as his lordship then was) had passed a separate note and in this note the learned Judge had discussed the maintainability of the civil revision application before that Bench and had in this connection relied on the judgment of the honourable Supreme Court in the case of PAKISTAN FISHERIES Ltd. v. UNITED BANK LTD. (PLD 1993 SC 109) and on the basis of this judgment had observed some reservations about the maintainability of the revision application under section 115, C.P.C. Against an interim order passed by Banking Court in exercise of jurisdiction under the Financial Institutions (Recovery of Finances) Ordinance, 2001, Ordinance XLVI of 2001. The learned Judge has nevertheless concurred with the observations of the other member of the Division Bench that the impugned order suffers from illegality and set aside the same. The learned Amicus Curie then submitted that both these Courts were not properly assisted as the judgment of the honourable Supreme Court in the case of Pakistan Fisheries quoted supra was not placed before the first Division Benches whereas apparently it was not placed before the second Division Bench also because there is no mention of this judgment and there is no discussion of it in the order of other member Judge of the learned Division Bench who had authored the judgment and set aside the order against which revision application was filed and apparently Mr. Khilji Arif Hussain J. Had himself researched on the subject and discussed the applicability of the judgment in the case of Pakistan Fisheries quoted supra but then he was persuaded by the apparent illegality in the order against which the revision was filed and agreed with the other Member of the Division Bench that it should be set aside.
8. The learned Amicus Curie then read out the provisions of section 22 of the Financial Institutions (Recovery of Finance) Ordinance, 2001 including the provisions of subsection (1) and subsection (6) and submitted that subsection (6) strictly bars the filing of appeals against interlocutory orders by which the entire appeal had not been disposed of. He submitted that the above law is a special law and all the orders passed by a Banking Court exercising its jurisdiction over the provisions of this Ordinance have to be governed by the procedure for filing appeals provided in this Ordinance and the provisions of this Ordinance cannot be circumvented by filing Constitutional Petitions under Article 199 of the Constitution of Pakistan or filing appeals or revisions under the relevant provisions of the Code of Civil Procedure.
9. In support of his arguments that all Judges including Single Judges of this Court who are sitting on the Banking Side to adjudicate on the banking suits or other banking proceedings will be treated as Banking Court Judges and will be governed by the provisions of the .Relevant Banking Laws and in support of his contention that the Courts will not allow litigants to circumvent the bar of filing appeals against interlocutory judgments under the Ordinance, 2001 by resorting to filing constitutional petitions or revisions or appeals under C.P.C. He relied on the following judgments besides the judgment of the honourable Supreme Court in the Pakistan Fisheries case quoted supra.
(1) TRI-STAR POLYSTER LIMITED v. CITY BANK (2001 SCM R 410)
(2) PAKISTAN INDUSTRIAL CREDIT AND INVESTMENT CORPORATION LIMITED, PESHAWAR CANTT and others v. GOVERNMENT OF PAKISTAN through Collector Customs, Customs House, Jamrud Road, Peshawar AND OTHERS (2002 SCM R 496)
(3) Messrs TANK STEEL AND RE-ROLLING MILLS (PVT.) LTD. DERA ISMAIL KHAN and others .v. FEDERATION OF PAKISTAN and others (PLD 1996 SC 77)
(4) MIAN TAHIR-UL-RAFIQUE v. CITY HOUSING (2005 M LD 26)
(5) KARACHI PIPE MILLS LIMITED v. HABIB BANK LTD. AND ANOTHER (2003 CLD 1487)
(6) Messrs HABIB BANK LTD v. Messrs BELA AUTOMOTIVES LTD. (2006 CLD 169)
10. On the basis of above arguments the learned Amicus Curie opined that the appeal filed under Order XLIII, Rule 1(r), C.P.C. Is not mainttinable. He further stated that since in his opinion the appeal was not maintainable therefore it is not necessary to decide as to whether the appeal has to be heard by a Division Bench or a Single Bench of this Court but opined that if this Court holds the appeal to be maintainable then in accordance with the unreported judgment of this Court dated 6-10-2010 in M.A. No,2 of 2010 the appeal will have to be heard by a Single Bench.
11. Before we proceed further with the case we admit that we have been provided very elaborate assistance by the learned counsel and we must place on record our gratitude and appreciation for the way the learned Amicus Curie researched on the subject and provided us assistance on all the aspects of the proposals on which his assistance was sought.
12. The learned counsel for the appellant submitted that the order dated 13th April, 2010 which is the impugned order, had become a final order on 31st May, 2010 and therefore the appeal was maintainable but admitted that the appeal was not filed under the relevant provisions of the Ordinance and was filed under the provisions of C.P.C. Just to circumvent the non-allowability of filing the appeal against an interim order under the Banking law.
13. Mr. S.A.A. Hasni the learned counsel for respondent No,1 concurred with the arguments of the learned counsel amicus curie and adopted his arguments.
14. The learned Assistant Advocate-General Sindh also concurred with the opinion of the learned Amicus Curie and relied upon the following other judgments.
(1) MUHAMMAD AYUB BUTT v. ALLIED BANK LTD., PESHAWAR AND OTHERS .(PLD 1981 SUPREME Court 359)
(2) MARHABA TEXTILE LTD. v. INDUSTRIAL DEVELOPMENT BANK OF PAKISTAN (2003 CLD 1822)
(3) RASU FOOD INDUSTRIES AND ANOTHER v. MESSRS PAKISTAN INDUSTRIAL LEASING COOPERATION LIMITED AND OTHERS (2005 SCM R 1643)
15. The learned counsel for the appellant further submitted that if this Court decides that the appeal is not maintainable then at least directions may be issued to the learned Banking Court to pass an order on his review application which according to him is pending and which according to the learned counsel for the respondents is not pending.
16. We have examined the case in the light of the opinion of the learned counsel Amicus Curie and the arguments of the learned counsel and have carefully perused the relevant law and the judgments relied on by the learned Amicus Curie-and the learned Assistant Advocate-General Sindh.
17. Before we proceed further we deem it relevant to reproduce the provisions of section 22 of the Financial Institutions (Recovery of. Finances) Ordinance, 2001 and Order XLIII, Rule 1(r) of C.P.C.
Under which this appeal has been filed.
22. Appeal.---(1) Subject to subsection (2), any person aggrieved by any judgment, decree, sentence, or final order passed by a Banking Court may, within thirty days of such judgment, decree, sentence or final order prefer an appeal to the High Court.
(2) The appellant shall give notice of the filing of the appeal in accordance with the provisions of Order XLIII, Rule 3 of the Code of Civil Procedure (Act V of 1908) to the respondent who may appear before the Banking Court to contest admission of the appeal on the date fixed for hearing.
(3) The High Court shall at the stage of admission of the appeal, or at any time thereafter either suo motu or on the application of the decree holder, decide by means of a reasoned order whether the appeal is to be admitted in part or in whole depending on the facts and circumstances of the case, and as to the security to be furnished by the appellant; Provided that the admission of the appeal shall not per se operate as a stay, and nor shall any stay be granted therein unless the decree-holder has been given an opportunity of being heard and unless the appellant deposits in cash with the High Court an amount equivalent to the decretal amount inclusive of costs, or in the case of an appeal other than an appeal against an interim decree, at the discretion of the High Court furnishes security equal in value to such amount; and in the event of a stay being granted for a part of the decretal amount only, the requirement for a deposit in cash or furnishing of security shall stand reduced accordingly.
(4) An appeal under subsection (1) shall be heard by a bench of not less than two Judges of the High Court and, in case the appeal is admitted, it shall be decided within 90 days from the date of admission.
(5) An appeal may be preferred under this section from a decree passed ex parte.
(6) No appeal, review or revision shall lie against an order accepting or rejecting an application for leave to defend, or any interlocutory order of the Banking Court which does not dispose of the entire case before the Banking Court other than an order passed under subsection (11) of section 15 or subsection (7) of section 19.
(7) Any order of stay of execution of a decree passed under subsection (2) shall automatically lapse on the expiry of six months from the date of the order whereupon the amount deposited in Court shall be paid over to the decree-holder or the decree-holder may enforce the security furnished by the judgment-debtor ' ORDER XLIII, C.P.C.
' APPEALS FROM ORDERS
(1) Appeal from orders. An appeal shall lie from the following orders under the provisions of section 104, namely:-- (a)
(b)
(c)
(d)
(r) An order under rule 1, rule 2, rule 4 or rule 10 of Order XXXIX;
18. We would like to make it clear that it is a trite law that special laws prevail over the general law and in case of banking matters the Financial Institutions (Recovery of Finances) Ordinance, 2001 is the special law and the Civil Procedure Code even if its provisions are not specifically ousted by any section of the Ordinance 2001 will still be a general law so far as banking matters are concerned and therefore prima facie the provisions of section 22 of the Ordinance, 2001 will prevail over the general law and the sections providing for appeals and revisions under the Civil Procedure Code including Order XLIII, Rule 1(r), section 115 and section 96 of Civil Procedure Code and therefore if there is a bar for filing an appeal against an interlocutory order under subsection (6) of section 22 of the Financial Institutions (Recovery of Finances) Ordinance, 2001 then in our humble opinion it cannot be circumvented by filing appeals or revisions under the provisions of Civil Procedure Code, even if the orders of a Banking Judge has been made on an application filed under any provisions of the C.P.C.
19. In the light of our prima facie opinion we have examined the judgments relied upon by the Amicus Curie and the counsel. The first judgment we will take up is the judgment of the honourable Supreme Court in the case of 'Pakistan Fisheries Ltd. It will be relevant to reproduce the following extract from this judgment.
"14. The case may also be examined from another angle. The object of enacting the Banking Companies (Recovery of Loans) Ordinance, 1979, is to provide speedy measures for recovery of outstanding loans of the Banking Companies as their recovery suits remained pending in the Civil Courts for years together. If the orders in the nature of interlocutory orders are brought under challenge before the High Court, the object for which the enactment was made would be frustrated. The appellate power conferred on the High Court is only to the extent of entertaining appeal against the final order and judgment of the special Court and that too subject to the condition precedent prescribed by section 12 that the appellant deposits in the High Court an amount equivalent to the decretal amount or with the leave of the Court furnishes security equal in value to such amount. In Muhammad Ayub Butt v. Allied Bank Ltd., Peshawar and others (PLD 1981 SC 359) this Court examined the issue as to the maintainability or otherwise of a revision under section 115, C.P.C., against an interlocutory order; considered in some depth the scheme the object and the relevant provisions of the Ordinance and came to the conclusion:- "It seems to us that with a view to securing expeditious disposal of cases by a Special Court the framers of the Ordinance had purposely saved the interlocutory orders of the said Court from attack before the High Court in revision or appeal as they wanted that only the final decision of the Special Court should be open to appeal before the High Court. This is evident from subsection (1) of section 7, subsection (1) of section 8 and section 11 of the Ordinance. The cumulative effect of these provisions is that the interlocutory order of the Special Court cannot be questioned before any Court including the High Court. Thus, on consideration of the provisions of the Ordinance itself, the provisional jurisdiction of the High Court in regard to such orders is excluded."
20. From a perusal of the above extract it is clear that in case of interlocutory orders passed under the Banking laws no right of appeal vests in the litigant and in fact it is specifically barred and resort cannot be made to the provisional and appellate procedure of the C.P.C. To circumvent this specific bar under the banking law. This judgment is binding on us as per the provisions of Article 189 of the Constitution of Pakistan and so also binding on the Division Bench of this Court in the case of Afshan Ahmed quoted supra and the case of Indus Lenentose quoted supra who have held otherwise without considering the impact of the judgment and therefore in presence of this judgment the judgment passed by learned Division Benches who apparently were not properly assisted are not binding on us.
21. We would also like to reproduce the following extracts from the judgment of the honourable Supreme Court in the Case of Muhammad Ayub Butt quoted supra. In support of these petitions for leave to appeal Mr. Hidayatullah Khan has mainly submitted that the provisions of section 13 of the Ordinance have not been given due consideration by the learned Judges of the High Court. This provision deals with the pending cases and pending appeals. We have perused this provision but do not think that it lends any assistance to the point being pressed before us. The case of the petitioner before us is that a revision petition under section 115 of the C.P.C. Could be filed against the interlocutory order of the Special Judge in this case because this order was passed in relation to a matter which was pending before the Civil Courts before the enforcement of the Banking Companies (Recovery of Loans) Ordinance XIX of 1979 and was transferred to it as a result of this provision. Reliance, for the submission, that in these circumstances a revision under section 115, C.P.C. Would be competent, is placed upon the provisions of section 3 of the Ordinance and it is submitted that this provision shows that the provisions of the Civil Procedure Code continued to be applicable. But as discussed above, already the provisions of the Civil Procedure Code continue to apply to the extent that they have not been ousted by the provisions of sections 11 and 12 which effectively bar appeals etc. Of interlocutory orders. Thus, even without the specific ouster of the provision of section 115 of the Civil Procedure Code an interlocutory order cannot be challenged. It seems to us that with a view to securing expeditious disposal of cases by a Special Court the framers of the Ordinance had purposely saved the interlocutory orders of the said Court from attack before the High Court in revision or appeal as they wanted that only the final decisions of the Special Court should be open to appeal, before the High Court. This is evident from subsection
(1) of section 7, subsection (1) of section 8, and section 11 of the Ordinance. The cumulative effect of these provisions is that the interlocutory order of the Special Court cannot be questioned before any Court including the High Court. Thus, on consideration of the provisions of the Ordinance itself, the revisional jurisdiction of the High Court in regard to such orders is excluded.
22. It will also be relevant to reproduce the following extract from the order in the case of MARHABA TEXTILE LTD. Quoted supra:-- The jurisdiction conferred on the High Court under the Ordinance is banking jurisdiction and while exercising such jurisdiction the High Court bears the fictional character of a 'Banking Court' as defined in the Ordinance. It is a fundamental rule, that where an enactment creates a new jurisdiction, prescribes the mariner in which that jurisdiction is to be exercised and further specifies the remedy, such remedy is exclusive and the party aggrieved of an order made in exercise of that jurisdiction must seek only such remedy and not others. The jurisdiction conferred by the Ordinance on the forums created thereunder, seems to have been jealously guarded by the Legislature. By virtue of subsection (4) of section 7 in all matters to which under the Ordinance, the jurisdiction of the Banking Court extends, no Court other than the Special Court can have jurisdiction to deal therewith. Furthermore, section 27 attaches finality to the orders and categorically lays down that subject to provision for appeal under section 22, no Court or other authority shall revise, review or permit to be called in question any proceeding, judgment, decree, sentence or order of Banking Court or legality or propriety of anything done or intended to be done by the Banking Court, save the correction of any clerical or typographical mistakes in any judgment, decree and sentence passed by it. Evidently, the Legislature in its anxiety to protect the orders of Banking Court, has gone to the extent of ordaining that no Authority other than the appellate forum specified in section 22, shall even allow to throw a challenge to the validity of such order. Combined effect of these provisions is that judgment and orders passed by Banking Court cannot be assailed before any forum except in accordance with the provisions of section 22.
' Mr. A. I. Chundrigar further maintained that no doubt this Court has wide powers to treat an appeal as petition under Article 199 and petition can be converted into appeal subject to limitation and jurisdiction. But he contended that this appeal cannot be converted into Constitution petition in view of the dictum of the apex Court in Syed Saghir Ahmad Naqvi v. Province of Sindh through Chief Secretary, S&GAD, Karachi and another 1996 SCM R 1165, that the statute excluding a right of appeal from the interim order cannot be bypassed by bringing under attack such interim orders in Constitutional jurisdiction. The party affected has to wait till it matures into a final order and then to attack it in the proper exclusive forum created for the purpose of examining such orders.
23. On the basis of the reading and examination of the above judgments and the relevant laws we are of the considered opinion that the bar provided under subsection (6) of section 22 of the Financial Institutions (Recovery of Finance) Ordinance, 2001, cannot be circumvented by filing revision under section 115 or appeal under Order XLIII, Rule 1(r), C.P.C. Or under any of the provisions and such revision or appeal are not maintainable. Applying this opinion to this particular appeal we hold that this appeal is not maintainable and is therefore accordingly dismissed in limine.
24. However, while dismissing this appeal in limine we would direct the Banking Court that if any review filed by the present appellant against any of the orders of the Banking Court is still pending the same may be disposed of in accordance with law by a speaking order preferably within a period of sixty days from the date of this order after giving all the parties an opportunity of being heard.
' This Miscellaneous Civil Appeal is disposed of in the above manner.