' M. SOHAIL IQBAL BHATTI, J.---Through this appeal the appellant has challenged the judgment dated 3-8-2007 passed by the learned Judge Banking Court-III, Lahore.
2. The facts of the case are that the appellant filed a suit for recovery of Rs,14,86,556.40 against the respondents on 31-5-1994. The respondents filed an application for leave to defend the suit and after giving its elaborate findings the learned Judge Banking Court-III, Lahore, vide judgment dated 7-2-2003 passed a judgment and decree to the tune of Rs.10,40,834 in favour of the appellant. The decree passed in favour of the appellant was converted into the execution petition. It is not out of place to mention here that during the pendency of the recovery suit filed by the appellant Bank, the respondents filed a suit for declaration with the following prayers:- "(a) That a declaration may kindly be given to the effect that the machinery imported under the custody of the defendant is owned by the plaintiffs who are rightfully entitled to the same on payment of its price.
(b) That as a consequential relief by way of mandatory injunction, the defendant may kindly be directed to release the machinery to the plaintiffs on receipt of the sale price as evidenced, by the import documents/Letter of Credit.
(c) That a direction may be issued to the defendant that a sum of Rs.1,85,000 which was accounted for by the defendant bank towards demurrage/storage charges for clearance of the machinery may be adjusted towards price of the machinery.
3. In the suit filed by the respondents, application for leave to defend the suit, filed by the appellant, was allowed and issues were framed on 7-10-2004 but the evidence had not been adduced by the respondents.
4. In the execution proceedings some verbal objections were raised by the respondents and the learned Judge Banking Court-III, Lahore, passed the impugned judgment on 3-8-2007. The operative part of the judgment is as under:- "In view of the above the suit titled Allied Bank of Pakistan Limited v. Messrs Chic Textiles (Pvt.)
Limited etc., shall remain pending until disposal of the other suit. However both the files be put up at one and the same time."
' Hence, this appeal.
5. Learned counsel for the appellant argued that the judgment and decree dated 7-2-2003 passed by the learned Judge Banking Court-III, Lahore, had attained finality as the respondents had not filed any appeal against the same. It has been further argued that by, passing impugned judgment, upon some verbal objections of the appellant, the learned Judge Banking Court acted in disregard to the mandatory provisions of Order XXI, rule 23-A, C.P.C. It has also been argued that even if it is presumed that the impugned judgment has been passed in exercise of powers under Order XXI, rule 29, C.P.C. No order, for submission of security has been passed.
6. On the other hand, learned counsel for the respondents argued that the impugned judgment has been rightly passed by the learned Judge Banking Court-III, Lahore. It has been further argued that since the machinery, which has been imported by the respondents, has been sold/auctioned and presently nothing is outstanding against the respondents/judgment-debtors, there was no justification in continuation of the execution proceedings. In the same breath learned counsel for the respondents argued that the powers have been exercised by the learned Judge Banking Court in terms of Order XXI, rule 29, C.P.C. And it was not mandatory upon the Banking Court while passing the impugned order to direct the respondents to submit any surety bond.
7. We have considered the arguments advanced by learned counsel for the parties and perused the record.
8. It is an admitted fact that the judgment and decree dated 7-2-2003 passed in favour of the appellant for recovery of Rs.10,40,834 has attained finality. The decree passed in favour of the appellant has been converted into execution proceedings and if some verbal objections had been raised, which needed consideration by the executing Court, neither the objections could have been considered nor the execution A proceedings could have been stayed in view of the bar contained in Order XXI, rule 23-A, C.P.C. The decree passed in favour of the appellant Bank is a money decree and in terms of Order XXI, rule 23-A, C.P.C. Even the objection to a money decree cannot be considered unless the judgment-debtor deposits the decretal amount in Court or furnishes a security for its payment.
9. Learned counsel for the respondents/judgment-debtors in one breath argued that the execution proceedings had been stayed in terms of Order XXI, rule 29, C.P.C. But at the same time argued that the machinery, imported by the decree-holder Bank, has been sold in auction and the decretal amount has been satisfied. We are not convinced by these two contradictory arguments advanced by learned counsel for the respondents/judgment-debtors. The tenor of the impugned judgment does not refer to the fact that any objection has been raised regarding satisfaction of the decree. The operative part of the impugned judgment in itself explains that the execution proceedings, filed by the appellant; have been kept pending until the disposal of the suit for declaration filed by the respondents; but the suit for declaration filed by the respondents, on the basis of which the impugned judgment dated 3-8-2007 had been passed, has apparently become infructuous as the learned counsel for the respondents/judgment-debtors has argued that the machinery in respect of which the suit for declaration had been filed, has been auctioned and the amount has been adjusted; meaning thereby that no decree can be passed in favour of the respondents in a suit for declaration on the basis of which the impugned judgment dated 3-8- 2007 had been passed.
10. Even otherwise if the case of the respondents/judgment-debtors is regarding the satisfaction of the decree, this question could have been decided under section 417, C.P.C. As all the questions relating to discharge or satisfaction of decree are determined by the executing Court. In the present case it appears that no such exercise had been made. At this stage it would be useful to refer to the observation made by the honourable Supreme Court of Pakistan in a case reported in Happy Family Associate through Chief Executive v. Messrs Pakistan International Trading Company (PLD 2006 SC 226) which is reproduced as under:- "Provision of Order XXI rule 23-A is mandatory and the objection to the execution by a judgment- debtor cannot be considered unless the judgment-debtor deposits the decretal amount in Court or furnished a security for its payment."
We are of the considered view that even the objection as to non-executability of the decree relates to the execution of a decree and the executing Court would be clearly barred from considering the same under the Provisions of rule 23-A of Order XXI, C.P.C. Unless the judgment-debtor deposits the decretal amount in the Court or furnishes a security for its payment. In the judgment reported in Allied Bank of Pakistan Ltd. v. Fath Textile Mills Limited and 7 others (PLD 2007 Karachi 397) the Sindh High Court has held that the provisions of D Order XXI, C.P.C., as relates to the objection to the execution of a decree, are to be read in conjunction with the provisions of section 47, C.P.C. Which lays down the scope of the objection that can be raised in execution. Section 47, C.P.C. Empowers the executing Court to determine the questions relating to execution, discharge and satisfaction of a decree and it bars a separate suit but the Court is barred from considering such objections unless the judgment-debtor makes compliance of rule 23-A, Order XXI, C.P.C. By depositing the decretal amount in the Court or furnishing security for its payment.
11. At this stage we Would like to observe that the basic purpose of enacting the Financial Institutions (Recovery of Finances) Ordinance, 2001 is to provide speedy measures for recovery of outstanding loans and finances of the financial institutions/banking companies; that is why it has been specifically provided in section 19(7).(a) of the Financial Institutions (Recovery of Finances)
Ordinance, 2001, notwithstanding anything contained in the Code of Civil Procedure, 1908 (Act V of 1908), or any other law for the time being in force, the Banking Court shall conclude the claims or objections filed in the execution proceedings within a period of thirty days and in doing so shall follow the summary procedure. Meaning thereby that the legislature, through a special law, has excluded the applicability of the Civil Procedure Code upon the execution proceedings pending before the Banking Court. The use of the term "Notwithstanding anything contained in the Code of Civil Procedure, 1908 (Act V of 1908) or any other law for the time being in E force" makes it clear that through this non obstante clause the legislature in its wisdom has excluded the application of the provisions of C.P.C. Upon the execution of decrees passed in favour of the financial institutions.
The impugned judgment passed by the learned Judge Banking Court-III, Lahore, amounts to render the purpose of enacting special statue i.e. Financial Institutions (Recovery of Finances)
Ordinance, 2001 nullified. Even otherwise if the argument of the learned counsel for the respondents/judgment-debtors that the imported machinery has been sold and the outstanding liability has been adjusted is accepted, in that case the impugned judgment dated 3-8-2007 cannot hold the field.
12. For what has been discussed above, this appeal is allowed and the impugned judgment dated 3-8-2007 is set aside. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.