' UMAR ATA BANDIAL, J.---The respondent bank has filed parawise comments that address the factual points but not the legal question raised in the petition. The impugned notices dated 5-2- 2007 and 9-5-2009 direct the sale of petitioners' mortgaged property under section 15 of the Financial Institution (Recovery of Finances) Ordinance, 2001. The impugned action of sale of mortgaged property is challenged presently for being contrary to the rule laid down by the Full Bench of this Court in Muhammad timer Rathore v. Federation of Pakistan (2009 CLD 257) which has declared section 15 ibid to be unconstitutional. That is a declaratory judgment with respect to the validity of a law and therefore, its effect operates in rem. Learned counsel informs that the Hon'ble Supreme Court has in one CPLA suspended the judgment of the learned Full Bench.
However, that A suspensory order is claimed to have effect inter partes only and not as a judgment in rem. Such an effect is established by the rule laid down in Gen. (Recd.) Ghulam Jilani v. The Federal Government through the Secretaru, Government of Pakistan, Interior Division, Islamabad (PLD 1975 Lahore 65).
2. In a number of other cases involving the same dispute, the respondent banks therein have filed recovery suits before the competent learned banking courts and thereby abandoned recovery under section 15 ibid which was impugned in such cases.
3. On the basis of the law discussed above, this petition is allowed and the respondent bank's purport to recover its dues by the sale of the mortgaged property under section 15 ibid is declared to be illegal. This declaration which is made in person am does not however impair the respondent bank's right to obtain recovery through lawful process including the filing of a suit for recovery before the competent banking court.
4. In the foregoing terms.