' SADIQ HUSSAIN BHATTI, J.---The appellant is aggrieved by the order dated 24-9-2011 passed by the Banking Court No,1, Karachi, whereby the application filed under Order XLVII, Rule 1, C.P.C. Read with section 153, C.P.C., filed by the appellant in Execution No, 494 of 1997, was dismissed.
2. Brief facts of the case are that the appellant is Director of Messrs Butt Brothers (Pvt.) Limited (hereinafter referred to as "Butt Brothers"), a private limited company, engaged in the business of export of seafood. The appellant obtained finance facility from the respondent and secured the repayment thereof by executing (i) Agreement for Finance for Short/Medium/Long Terms 'basis dated 29-11-1986 for a sum of Rs,12.00 million, (ii) Promissory Note dated 29-11-1986 in the sum of Rs,12,000,000 executed by the directors of M/s. Butt Brothers, namely the petitioner and his wife, (iii)
Export Finance Scheme Part II Agreement in Form I-B-11 dated 29-11-1986 for a sum of Rs,7,440,000,
(iv) Export Finance Scheme Part II Agreement in I-B-11, dated 7-12-1986 for a sum of Rs,3,000,000, and (v) Export Finance Scheme Part II Agreement in I-B11, for a sum of Rs,1,560,000. Thereafter a number of finance facilities were obtained and availed by Butt Brothers and the appellant, in order to secure the repayment of the total outstanding amount, created equitable mortgage by deposit of title deeds of his property bearing Plot No, 151, measuring 2778 sq. Yards, situated in Industrial Block No, 23, Sector 23, Korangi Industrial Area, Karachi (hereinafter referred to as the mortgaged property") and also created charge under section 127 of the Companies Ordinance, 1984 (hereinafter referred to as "the Ordinance, 1984"). When Butt Brothers defaulted in repayment of the Advance Facility, the respondent issued a legal notice calling upon the appellant and Butt Brothers to liquidate their liability. However, they failed to do so. Therefore, the respondent filed Suit No, 254 of 1992 for recovery of Rs, 19,668,741, which was decreed vide judgment and decree dated 13-7- 1993. The respondent filed Execution No, 40 of 1993, later renumbered as 494 of 1997, for execution of the decree dated 13-7-1993 wherein the Banking Court auctioned the mortgaged property on 12-8- 1996. The appellant moved an application under section 47 read with Order XXI, rules, 54, 66, 89, 90 and 91 and section 151, C.P.C. Objecting to the sale of plant and machinery installed in the mortgaged property as the same was neither mortgaged nor hypothecated with the respondent.
The appellant also moved an application under section 12(2), C.P.C. But the same was dismissed by the Banking Court vide order dated 1-3-2000. The Auction Purchaser, namely, Tasawar Haq Butt, moved an application under Order XXI, rule 94, C.P.C. For issuance of sale certificate which was allowed vide order dated 5-3-2007 and the Nazir was directed to issue Sale Certificate in favour of the applicant/auction purchaser and the property was also handed over to the nominee of the action-purchaser. The appellant also moved an application under Order XLVII, rule 1, C.P.C. For review of the order dated 5-3-2007 as well as an application under Order XXXIX, rules 1 and 2, C.P.C.
Which was dismissed vide order dated 13-4-2010 against which the appellant filed M.A. No, D-13 of 2010 before this Court which was dismissed vide judgment dated 1-6-2011. However, while dismissing the MA, it was observed in the Judgment dated 1-6-2011 that "if any review filed by the present applicant against any of the orders of Banking Court is still pending the same may be disposed of in accordance with law by a speaking order..." Thereafter, the Banking Court No,1 heard the parties on the application under Order XLVII, rule 1, C.P.C. And vide order dated 24-9-2011 held that no application under Order XLVII, rule 1, C.P.C. Was pending as the same stood disposed of vide order dated 13-4-2010, against which the appellant has filed the present First Appeal.
3. Mr. Ghulam Mohiuddin, advocate for the appellant, submitted that the learned Banking Court has failed to notice that valuable rights of the appellant were at stake and has passed the impugned Order without considering the material on record. He stated that only property bearing Plot No,151, measuring 2778 sq. Yards, situated in Industrial Block No,23, Sector 23, Korangi Industrial Area, Karachi was mortgaged, however, while auctioning the same the plant and machinery worth millions of rupees was also auctioned. He stated that the impugned order is based on erroneous interpretation of section 27 of the Financial Institutions (Recovery of Finances) Ordinance, 2001 (hereinafter referred to as "the Ordinance, 2001").
4. On the other hand, Mr. S.A. Hasni, learned counsel for the respondent Bank contended that no application under Order XLVIII, rule 1, C.P.C. Was pending before the Banking Court as the same stood disposed of vide order dated 13-4-2010. He also submitted that sale certificate has been issued and the mortgaged property has been handed over to the nominee of the auction- purchaser. He finally submitted that even otherwise the review is not maintainable in view of the provisions of section 27 of the Ordinance, 2001.
5. The only prayer made in this First Appeal is to the effect that the impugned order may be set aside and the application filed under Order XLVII, rule 1 read with section 153, C.P.C. May be allowed as prayed.
6. From the record it reveals that the respondent bank filed Suit No,254 of 1992 against Butt Brothers and the appellant for recovery of Rs,1,96,68,741, prayer clause (ii) whereof was in respect of final decree for the sale of the mortgaged property while prayer clause (iii) of the same was in respect of sale/auction of the hypothecated goods. The suit came up for hearing on 13-7-1993 when it was decreed in the following manner:-- "Mr. Sajjad All Shah says that the security has not been furnished within time. Mr. Munawar Ali says that valued property is in possession of the plaintiff It is sufficient security. The law requires Bank Guarantee or Cash security. Admittedly security has not been furnished within 15 days. It has not been furnished even today.
' Suit is therefore decreed in the sum of Rs,19668741 Foreclosure of Mortgage is also allowed."
7. Thus, it would be seen that the appellant/defendants, though served, did not defend the suit and allowed it to be decreed on the basis of default on the part of the defendants. The Judgment dated 13-7-1993, whereby the suit of the respondent bank was decreed, was challenged by filing M.A.
No,D-13 of 2010 under Order XLIII, Rule 1, C.P.C., however, the same was dismissed vide judgment dated 13-6-2011 in the following terms:- "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 Finances) 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."
8. The learned Division Bench, while dismissing the appeal filed by the appellant, also observed as under:- "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 order 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."
9. It was on the basis of this observation that the learned Banking Court passed the impugned order dated 24-9-2011 clarifying that the application under Order XLVII, rule 1, C.P.C. Was dismissed vide order dated 13-4-2010 and no such application was pending before the Banking Court.
10. It may be pertinent to mention here that against the Judgment dated 13-6-2011 passed by a Division Bench of this Court on M.A. No,D13 of 2010, the appellant approached the Hon'ble Supreme Court by filing a civil petition for leave to appeal but the same was also dismissed. Thus, the order dated 13-4-2010 attained finality as the same was maintained not only by this Court but also by the Hon'ble Supreme Court.
11. The two contesting parties were at variance before the Division Bench hearing the Miscellaneous Appeal No, D-13 of 2010, as well as before us regarding pendency of the application under Order XLVIII, rule 1, C.P.C. As the learned counsel for the appellant contended that the same was not disposed of and was pending while the learned counsel for the respondent bank submitted that the same stood disposed of vide order dated 13-4-2010.
12. A perusal of the order dated 13-4-2010 shows that the learned counsel for the appellant/applicant pointed out to the Banking Court that he has moved an application under Order XLVII, rule 1, C.P.C. Read with section 153, C.P.C. And the learned Banking Court clearly observed at the last page of the said order that "Considering that the sale certificate has been issued the matter, has been finally decided, no application for review can be entertained, as provided under section 27 of the Financial Institutions (Recovery of Finances) Ordinance, 2001 which expresly bars filing of any review application, considering that the JD/ applicant has exhausted all forums available right up to the Supreme Court where his petition for leave to appeal was not allowed."
13. In the order impugned in this first appeal, the learned Banking Court has also reproduced the above quoted portion of the order dated 13-4-2010 and clarified that "by dated 13-4-2010 of (sic.) this Court had disposed off the pending application, hence there is no pending application for review at this time."
14. Therefore, for all intents and purposes, the application filed by the appellant under Order XLVII, rule 1, C.P.C. Stood dismissed vide order dated 13-4-2010 and the appellant, if at all aggrieved by such' order, ought to have filed an appeal against the said order within the specified time limit.
Indeed, the appellant filed M.A. No,D-13 of 2010 calling into question the order dated 13-4-2010 but erroneously pleaded therein that the application under Order XLVII, rule 1, C.P.C. Is still pending. The above quoted portion of the order of the Banking Court was completely ignored.
15. The provisions of Order XLVII, rule 1, C.P.C. Envisage that any person considering himself aggrieved by a decree or order from which an appeal is allowed, but from which no appeal has been preferred or by a decree or order from which no appeal is allowed, or by a decision on a reference from a Court of Small Causes, and who, from the discovery of new and important matter or evidence which, after the exercise of due diligence, was not within his knowledge or could not be produced by him at the time when the decree was passed or order made, or on account of some mistake or error apparent on the face of the record, or for any other sufficient reason, desires to obtain a review of the decree passed or order made against him, may apply for a review of judgment to the Court which passed the decree or made the order. Before dilating upon the question that whether the present appeal, in view of the fact that it has been filed against the order dated 24-9-2011, is maintainable or not, it would be advantageous to re-produce section 114, C.P.C., which deals with filing of review, as below:-- "114 [review.---(1) Subject as aforesaid, any person considering himself aggrieved:--
(a) By a decree or order from which an appeal is allowed by this Code, but from which no appeal has been preferred.
(b) By a decree or order from which no appeal is allowed by this Code, or
(c) By a decision on a reference from a Court of Small Causes, may apply for a review of judgment to the Court which passed the decree or made the order, and the Court may make such order thereon as it thinks fit.
(2) Nothing contained in subsection (1) shall apply to a review of any judgment pronounced or order made by the Supreme Court]."
16. Thus, bare reading of the section makes it crystal clear that any person aggrieved by an order or decree as aforesaid, can file review petition before the same Court which has passed the order or decree, whether right of appeal against the same is provided in the Code or not. It may be also be worthwhile to reproduce Order XLVII, rule 1, C.P.C., as under:-- "(1) Application for review of judgment,--- (1) Any person considering himself aggrieved:--
(a) By a decree or order from which an appeal is allowed, but from which no appeal has been preferred.
(b) By a decree or order from which no appeal is allowed, or
(c) By a decision on a reference from a Court of Small Causes, and who, from the discovery of new and important matter or evidence which, after the exercise of due diligence, was not within his knowledge or could not be produced by him at the time when the decree was passed or order made, or on account of some mistake or error apparent on the face of the record, or for any other sufficient reason, desires to obtain a review of the decree passed or order made against him, may apply for a review of judgment to the Court which passed the decree or made the order.
(2) A party who is not appealing from a decree or order may apply for a review of judgment notwithstanding the pendency of an appeal by some other party except where the ground of such appeal is common to the applicant and the appellant, or when, being respondent, he can present to the Appellate Court the case on which he applies for the review.
17. These provisions of C.P.C., enunciate that on account of some mistake or error, apparent on the face of the record or for any other sufficient reason, the aggrieved party may apply for review of the judgment to the Court, which has passed the decree or made the order. However, the law places an embargo on the 'aggrieved person' which is that he can only file an application for review if no appeal is provided from the order sought to be reviewed or if appeal is provided but from which no appeal has been preferred. In the present case appeal, bearing M.A. No, D-13 of 2010 was filed to assail the order dated 13-4-2010. However, for reasons best known to the appellant or his counsel, it was presumed that the application under Order XLVIII, rule 1, C.P.C. Has not been disposed of by the same while it is clearly mentioned therein that "no application for review can be entertained..." ' which clearly shows that the said application was termed not maintainable and thus stood disposed of. In the impugned order, the learned Banking Court No,1 has only made it clear that by order dated 13-4-2010 the said Court had disposed of the pending application and hence there was no pending application for review. Therefore, any interference with the said review application would tantamount to interfering the order dated 13-4-2010, which is not under appeal before us but was the subject-matter of M.A. No,D-13 of 2010, which already stands dismissed vide the Judgment dated 13-6-2011 and the civil petition for leave to appeal against such judgment of this court was also dismissed. Even otherwise, this Court cannot interfere with an order/judgment which has already been upheld by the Hon'ble Supreme Court and thus attained finality.
18. Therefore, it is crystal clear that it was the appellant himself who misconstrued the order dated 13-4-2010 and did not agitate the matter about the said application under Order XLVII, rule 1, C.P.C.
For which nobody else can be blamed. Since appeal was filed by the appellant challenging the order dated 13-4-2010, therefore, no application for review can be entertained against the same.
However, it may be noted that the appellant allowed the suit filed by the respondent bank to be decreed without least effort to contest the same. Thereafter, sale certificate was issued and the property was handed over to the nominee of the auction purchaser. This clearly shows that the appellant never contested the suit with any conviction.
19. In view of the above we do not find this appeal to be maintainable. We, vide our short order dated 21-2-2013, dismissed this first appeal for the reasons to follow. These are the reasons for the same.
20. Before parting with the judgment, we may observe that neither the impugned order nor the order dated 13-4-2010 carries any page numbers or paragraph numbers. Such practice cannot be appreciated. It is hoped that such practice would be discontinued and page numbering and paragraph numbering would be carried out in future.