1. Through instant appeal, order dated 12.09.2013, passed by learned Judge Banking Court No.III, Multan, has been assailed, whereby application filed by respondent bank, under Section 27 of Financial Institutions (Recovery of Finance) Ordinance, 2001 ("the Ordinance"), read with Section 151 of the Code of Civil Procedure ("CPC"), was accepted.
2. 2.Brief facts of the case are that respondent bank filed a suit for recovery of Rs.21,26,609/- against appellant, whereupon appellant filed application for leave to defend the suit, which was contested by the respondent bank.
3. Learned Banking Court, after hearing arguments on said application, dismissed it and consequently, passed decree for recovery of Rs.41,563/25 vide judgment and decree dated 04.01.2012. Feeling aggrieved, respondent bank filed RFA before this Court, which was also dismissed vide judgment and decree dated 14.10.2012. Subsequently, respondent bank moved an application under Section 27 of the Ordinance, read with Section 151 of the Code of Civil Procedure, on the ground that suit was decreed on the basis of incomplete statement of account, thus, the decree dated 04.01.2012 was liable to be corrected in the light of complete statement of account furnished by respondent bank. The said application was contested and after hearing arguments of both the parties, learned trial court accepted the said application vide order dated 19.09.2013.
4. Consequently, the judgment and decree dated 04.01.2012 was revisited / recalled / reviewed and decretal amount was enhanced from Rs.41,563/25 to Rs.19,20,809/85, which has been assailed in the instant appeal.
5. 3.Learned counsel for the appellant submits that the impugned order and decree has been passed in violation of Section 27 of the Ordinance, which mandates that a decree passed by Banking Court is final unless it is reversed / set-aside by the Appellate Court in view of provisions of Section 22 of the Ordinance. He adds that in the instant case, even appeal (RFA No.76 of 2012) filed by the respondent bank was dismissed vide judgment and decree dated 24.10.2012, passed by this Court. He contends that learned trial court had no jurisdiction to recall / review the judgment and decree on any ground what-so-ever. He further submits that the impugned order is not sustainable in the eye of law.
6. 4.Learned counsel for the respondent defends the impugned order and submits that appellant has failed to point out any illegality or legal infirmity in the impugned order, thus, the same is in accordance with the relevant provisions of law and liable to be upheld.
7. 5.Arguments heard. Record perused.
8. 6.The operative part of impugned order is reproduced below:- "4.Perusal of record shows that after hearing arguments of learned counsel for parties, my learned predecessor rejected the borrower/defendant's PLA and decree the suit for recovery of Rs.41,563/25 with costs vide Judgment and Decree dated 04-01-2012. It was observed that the statement of account was not prepared and verified under the law, which showed balance of Rs.41,53/25 to be outstanding against the defendant. The defendant also admitted to have availed finance facility of Rs.20,00,000/- from the plaintiff/bank but he did not attach/produce an receipt of payment to show that said amount of loan had been deposited. Prima-facie, only one page of statement of account was considered and termed to be a statement which was not prepared and verified under the law. Entries of complete statement of account could not be mentioned in the Judgement due to typographical/clerical mistake and correction of such mistake would not affect the real merits of finding/judgment especially when the respondent/ Judgment-debtor admitted the availment of finance upto Rs.20,00,000/- and failed to produce any receipt of deposit with the PLA. Statement of account Mark-A, available on record shows that principal amount of Rs.19,20,809/85 and mark-up of Rs.30,273/- as on 21-12- 2011 are outstanding against the defendant, thus, the suit deems to be decreed for recovery of Rs.19,20,809/85 as principal amount and Rs.30,273/- as mark-up in favour of plaintiff against the defendant with costs. Cost of fund is awarded to the plaintiff since date of default i.e. 21-12-2011 till the date of realization.
9. 5.In view of above clarification, this petition is accepted and paragraphs No.6 and 7 of the Judgment dated 04- 01 2012 are deemed to be withdrawn and replaced with para No.4 of this Order, which shall form part of the judgment dated 04-01-2012. Decree sheet be amended accordingly.
10. 6.The decretal amount is payable by the Judgment- debtor, therefore, the mortgaged property is hereby attached."
11. 7.The above reproduced relevant part of impugned order shows that learned Judge Banking Court No.III, in the garb of typographical mistake, has in fact reviewed the judgment and consequently enhanced decretal amount from Rs.41,563/25 to Rs.19,20,809/85.
12. 8.Law on the subject is very clear that Banking Court, once passed a decree, cannot review its own judgment in view of provisions of Section 27 of the Ordinance, which reads as under:- "27.Finality of order.- Subject to the provisions of section 22, no Court or other authority shall revise or review or call, or permit to be called, into question any proceeding, judgment, decree, sentence or order of a Banking Court or the legality or propriety of anything done or intended to be done by the Banking Court in exercise of jurisdiction under this Ordinance: 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."
13. 9.Examination of the above provision of law reflects that once judgment and decree is passed by the Banking Court, it has no jurisdiction to recall/revisit it, subject to the provisions of Section 22 of the Ordinance. In the instant case, RFA No.76/2012 was filed by the respondent bank and the decree was upheld by this Court, in Regular First Appeal under Section 22 of the Ordinance. The original decree stood merged into judgment and decree dated 24.10.2012, passed by this Court, in the first round of litigation.
14. 10.The main reason which prevailed upon learned Judge Banking Court to allow application for correction filed by respondent bank was that there was a patent mistake with regard to decretal amount and same could be corrected under Section 152 of C.P.C. read with Section 27 of the FIO Ordinance. Correction sought by respondent bank and granted by learned Judge Banking Court did not fall within the purview of a clerical or arithmetical mistake, either in terms of Section 152 or for that matter under Section 27 of the Ordinance. Once Banking Court has passed a well-reasoned decree, on merits of the case, which was also upheld by this Court in appeal, Banking Court had no jurisdiction to recall and upset judgment and decree, passed by this Court, while deciding RFA in the earlier round. Reference can be made to Marhaba Textile Limited v. Industrial Development Bank of Pakistan (2003 CLD 1822),Askari Commercial Bank Limited through Authorized Signatory v. Messrs. Bake Line Products through Partners and 5 others (2013 CLD 836), Anwar Mehmood v. Messrs. Askari Bank Limited (2013 CLD 912) and Messrs. Tharparkar Sugar Mills through Authorized Representatives and others v. Bankers Equity Limited through Official Liquidator (2014 CLD 1343).
15. 11.The operative part of judgment in Messrs.
16. Tharparkar Sugar Mills case (supra) reads as under:- "Thus as is apparent section 27 prohibits any Court of authority to revise, call or permit to be called into question the judgment and decree of the Banking Court or the legality or propriety of anything done by the Banking Court. Although the judgment and decree in Suit No.1507 of 1998 was obtained by the respondent No.1 at the time when the Act of 1997 was in existence, however suit filed by the appellant bearing Suit No.B-29 of 2005 was under the Ordinance, 2001 which suit has to be weighed on the touch-stone of sections 22 and 27 of the Ordinance, 2001. No doubt the appellant has not sought any direct relief for setting aside the judgment and decree passed in Suit bearing No.1507 of 1998 but in fact has sought that they are entitled for the benefit under BPD Circular No. 29/2002 and in that case it would amount to an indirect revise, review or recall of the judgment and decree which otherwise is subsisting in accordance with law and available to be implemented. Section 27 of the Ordinance, 2001 attaches finality to the orders and categorically lays down that subject to provisions of appeal no Court or any authority shall revise or review or call or permit to be called in question any order or judgment of a Banking Court. In case of Marhaba Textile Ltd. v. Industrial Development Bank of Pakistan reported in 2003 CLD 1822 the leaned Division Bench is of the view that the legislature in its anxiety to protect the orders of Banking Court, has gone to the extent of ordaining than Authority other than the appellate forum 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 a Banking Court cannot be assailed before any forum except by way of appeal.
17. We would not like to comment much about the application and implication of sections 22 and 27 of the Ordinance, 2001 on the proceedings of Suit No. B-29 as it might prejudice the case of either party however, as far as the compliance of the judgment and decree passed in Suit bearing No.1507 of 1998 is concerned it cannot be made subservient to be outcome of Suit No.B-29 of 2005 in view of sections 22 and 27 of the Ordinance, 2001.
18. The argument of the appellant that outstanding loan is yet to be determined is not tenable under the law in view of the judgment and decree in Suit bearing No.1507 of 1998, this question has already been answered as the decree speaks for the outstanding loan determined, therefore it does not lie in the mouth of the appellant to urge that the outstanding amount is yet to be determined. Perhaps appellant intended to argue that they are entitled for the benefit under BPD Circular No.29/2002 but such would only be an amnesty and would not vitiate the legal proceedings followed by judgment and decree and would not frustrate the proceedings initiated in pursuance of consent decree in terms of Execution Application No.217 of 2000."
19. 12.It would also be relevant to add here that under the theory of merger, the judgment and decree passed by learned Judge Banking Court was merged in the judgment and decree passed by this Court in Regular First Appeal in the earlier round of litigation and had become past and closed transaction. The respondent bank, at its own will and whims, could not have impugned the said judgment which merged into final judgment passed by this Court, before the trial Court by moving a miscellaneous application, which was allowed by the Judge Banking Court in violation of the provisions of Section 27 of the FIO. The only remedy available to the respondent bank was to assail the judgment and decree passed by this Court by filing appeal before the apex Court.
20. 13.It is settled law that when in an appeal / revision /writ, judgment of lower forum is reversed, varied, modified or affirmed, after recording reasons on the consideration of the issues of law and / or fact, the judgment / order of the subordinate Court / forum would merge into the decision of appellate Court, irrespective of the fact that such judgment had reversed, varied or affirmed the decision of subordinate Court/ forum. Decision of appellate Court would be operative and capable of enforcement in such case on the principle of merger. Application for modification (if any maintainable), in such circumstances, could only be moved before the appellate Court. The impugned order, thus, is not sustainable on the doctrine of merger as well. Reliance in this regard is placed on Sahabzadi Maharunisa and another v. Mst. Ghulam Sughran and another (PLD 2016 SC 358).
21. 14.Since the impugned order has been passed in violation of Section 27 of the Ordinance, thus, the same is not sustainable. Resultantly, this appeal is allowed and the impugned order is set-aside, with no order as to costs.