Muhammad Farrukh Irfan Khan, J.--This judgment shall govern Writ Petition Nos. 2444/2015, 2443/2015, 2442/2015,17358/2014, 413/2014, 16907/2014, 16906/2014, 12494/2013,7367/2013, 3311/2014,3867/2014,2994/2013, 14412/2013, 3719/2014,14651/2014, 6221/2014, 7686/2014, 15616/2014, 10353/2014,14223/2013 as the same have been clubbed together to dilate upon the6046/2014, 15240/2013, 3935/2014, 5484/2013, 17357/2014 and question which was formulated by a Division Bench of this Court in the following terms: "whether under Section 19(2) of the Financial Institutions (Recovery of Finances) Ordinance, 2001, the Banking Court could only adopt the procedure provided under Section 79 of the Land Revenue Act, 1967 or could also employ the machinery provided under the Act". In 2012 CLD 1663 title Mian Aftab Ahmad Sheikh and two others vs. M/s. Trust Modaraba through Trust Management Services Ltd. And another their lordships in Division Bench of this Court held that though procedure given in the Land Revenue Act, 1967 could be adopted but the same could be put to service by executing itself and not through a revenue officer. In F.A.O No. 10/2011 title Muhammad Fayyaz Hussain vs. Judge Banking Court and 3 others, their lordships in a Division Bench of this Court held in their judgment dated 25th January, 2011 that besides adopting the procedure given in Section 79 of Land Revenue Act, 1967 the decree could also be executed through a revenue officer. Since this Bench is faced with a divergent view taken by the two learned Division Benches of this Court, therefore, the matter is to be referred to the Hon'ble Chief Justice of this Court for constitution of a Larger Bench to dilate upon the question formulated above."
2. During the course of arguments learned counsel for the parties had jointly submitted that common questions of law and facts are involved in all the cases and, therefore, the same be decided alongwith the question, reproduced above, framed by a Division Bench of this Court. Believing the said statement as correct, we allowed the learned counsels for the parties to advance their respective arguments on other questions of law and facts involved in the cases. However, ,while dictating judgment we found that the said statement was factually incorrect. Perusal of each matter unfolds that the said petitions may be classified into three categories. The cases of the first category are Writ Petition. Nos. 2444/2015, 2443/2015, 2442/2015, 17358/2014, 413/2014, 16907/2014, 16906/2014, 12494/2013, 7367/2013, 3311/2014, 3867/2014, 2994/2013, 14412/2013, 3719/2014, 14651/2014, 6221/2014, 7686/2014, 15616/2014, 10353/2014, 6046/2014, 15240/2013 and 3935/2014 which are against the impugned orders of the Banking Courts directing recovery of the decretal amount as arrears of land revenue through the Revenue Officer. In second category of cases, that is, Writ petition No. 5484 of 2013 and Writ Petition No. 17357 of 2014 the procedure for recovery was firstly started under the provisions of the Code of Civil Procedure, 1908 but later on recovery was directed to be made under the Land Revenue Act. While in W.P. No. 14223/13 (i.e. Third category) the recovery proceedings were initiated by exercising the mode, provided under the provisions of the Code of Civil Procedure, 1908 and then provisions of Section 19(3) of the Financial Institutions (Recovery of Finances) Ordinance, 2001 were invoked and lastly decretal amount was ordered to be recovered as arrears of land revenue.
3. Learned counsel for the petitioners have argued that the decretal amounts should be recovered from the mortgaged properties being the primary security against the extended finance facilities; that under Section 19(1) of the FIO, 2001 on conversion of decree into execution proceedings the case is to be heard by the Banking Court for execution of its decree on the expiry of 30 days from the date of pronouncement of the judgment and decree; that sub-section (2) of Section 19 ibid suggests procedure of CPC or In accordance with any other law for the time being in force or any such manner which the Banking Court may at the request of the decree holder consider appropriate including recovery as arrears of land revenue. It has emphatically been argued that the FIO is a special law and particularly enacted for summary disposal of loan cases, therefore, the impugned orders passed by the different Banking Courts during the execution proceedings shall be looked into keeping in view the scheme of law provided under FIO, 2001 whereas on referring the matters to Revenue Officers under Section 79 of the Land Revenue Act, 1967 the very object of the MO, 2001 would be defeated particularly when decree passed by a Banking Court is based on a mortgaged clause decree and in terms of Section 14 of the FIO, 2001 it is passed for the foreclosure or sale of the mortgaged property, therefore, very object of Section 14 would also be defeated in case decretal amount is transferred to "Revenue Office" for its recovery as arrears of land revenue. Further argued that in the wording as used in Section 19(2) of the FIO, 2001 there is no ambiguity with regard to recovery of decretal amount and application of procedure to execution proceedings, inasmuch as in mortgaged clause decrees, decretal amount in the first instance is recovered from mortgaged properties 'and in case proceeds recovered from sale of mortgaged property are found insufficient only then other assets and properties of judgment, debtor could be held responsible for effecting recovery. They went on to argue that a Revenue Officer when proceeds to recover the amount as arrears of land revenue he exercises the power under the Land Revenue Act, 1967 including confirmation of sale, issuance of sale certificate and transfer of holding whereas parallel mechanism is provided in FIO, 2001 which is a special law enacted for the specific purpose and in case of conflict between the two special law shall prevail. To sum up their arguments learned counsel for the petitioners laid stress that there is no provision in FIO, 2001 by which a Banking Court may direct recovery of the decretal amount as arrears of land revenue rather it can adopt the procedure provided for the recovery of arrears of land revenue. In support of their arguments they have relied upon the cases of Muhammad Attiqsue v. Jami Limited and others (2015 SCMR 148), Brig. (Retd) Mazhar-ul-Haq and another v. M/s. Muslim Commercial Bank Limited, Islamabad and another (PLD 1993 Lahore 706), and Messrs Lanvin Traders, Karachi v. Presiding Officer, Banking Court No. 2, Karachi and others (2013 SCMR 1419).
5. Learned counsel for the respondents have argued that there is no conflicting view in the aforementioned two judgments inasmuch as in the case cited as 212 CLD 1663 (supra) the provisions of Modarba Companies Modarba (Floatation and Control) Ordinance, 1980 have been considered and interpreted and not the FIO, 2001 or a Banking Court. They added that the judgment in the above, cited ease has been passed in its own peculiar circumstances and facts and the law relevant to the jurisdiction of the Modarba Tribunal in the matters of recovery of its decrees, therefore, the observations made in that judgment is in no way concerned with the powers of the Banking Court under Section 19 of the FIO, 2001 nor does it contradict the decisions or the law laid down in the ease titled Muhammad Fayyaz Hussain v. Judge Banking Court (supra).
Learned counsel for the respondents submits that the case in hand is to be governed by the provisions of FIO, 2001 and Section 19(2) of the Ordinance ibid provides following mode for execution of the decree passed by the Banking Court.
(i) by following the procedure provided by the, CPC.
(ii) Any other law for the time being in force.
(iii) in any such manner as the Backing Court may at the request of the decree holder consider appropriate including recovery as arrears of land revenue.
' It is thus quite obvious that under the third mode provided under Section 19(2) of the FIO, 2301 the Banking Court while executing the decree at the request of the decree holder may have resort to transfer the execution matter to the Collector/Revenue Officer for recovery of the decretal amount from the judgment debtor as arrears of land revenue. In support of this contention they have made reference to Section 25-B of the Banking Companies Ordinance, 1962 which reads as under: "Loans and advances made by the Banking Company for agricultural and other purposes and any other amounts decreed by any Court in favour of a Banking Company or a financial institution specified in Section 3-A shall, be recoverable as an arrears of land revenue as if the Banking company were a local authority for the purposes of Section 5 of the Revenue Act, 1890 (I of 1890)."
' According to them, the above section requires determination of the bank dues by a competent Court which for the purposes of recovery of bank dues under Section 7(4) of the FIO, 2001 is only and only a Banking Court and for recovery of the same, the same has to be treated as arrears of land revenue and then has to be recovered through the Collector/Revenue Authorities. Section 7(4) of the FIO, 2001 is subject to Section 5. The procedure for recovery as arrears of land revenue is provided under Sections 79 to 112 of West Pakistan Land Revenue Act, 1967. As per their version the Banking Court thus rightly acting under the law declared the decretal amount as the amounts recoverable, as arrears of land revenue and referred the same to the Collector for recovery of the same as, arrears of land revenue. The procedure, adopted by the Banking Court cannot be said to be in violation of any law. The Banking Court can recover the decretal amount in such manner as it considers appropriate. The powers given under Section 19(2) of the FIO fully justify the impugned order passed by the Banking Court for recovery of the decretal amount as arrears of land revenue through the assistance of the Revenue Authorities.
6. Arguments heard. Record perused.
7. First of all, we would like to discuss the issue whether there is any conflict between the two judgments of this Court titled Mian Aftab Ahmad Sheikh versus M/s. Trust Modarba etc. (2012 CLD 1663) and the other passed, in FAO No. 10/2010 titled Muhammad Fayyaz versus Judge Banking Court and others referred supra. After going through both the judgments, we are of the considered view that they are not divergent to each other. The judgment passed in Mian Aftab Ahmad's case has its own peculiar facts & circumstances and is relatable to the law relevant to the jurisdiction of the Modarba Tribunal. The observation made in this judgment has no bearing on the powers given by the legislature under Section 19 of the Financial Institutions (Recovery of Finances) Ordinance, 2001. In that case, there was a dispute against Company and not against any financial institution, as such, provisions of Modarba Companies, Modarba (Flotation and Control), Ordinance, 1980 were considered and interpreted therein and the lis before this Court was whether Modarba. Tribunal had jurisdiction to execute its decree or not. On the other hand, in the judgment of other case titled Muhammad Fayyaz versus Judge Banking Court and others the dispute was against the financial institution and the Banking Court had exercised the jurisdiction under the provisions of Financial Institutions (Recovery of Finances) Ordinance, 2001. The procedure for trial and execution of decrees under the Modarba Companies, Modarba (Flotation and Control), Ordinance, 1980 and Financial Institutions (Recovery of Finances) Ordinance, 2001 is independent and quite different from each other. For execution of its decrees, the Banking Court as against the Modarba Tribunal has very vast powers under Section 19 of the Financial Institutions (Recovery of Finances)
Ordinance, 2001. The procedure for trial of cases and the mode of execution of decrees in both the above referred cases were different and were governed under two different laws. Thus we are of the view that the above referred two judgments are not in conflict with each other and they have been adjudicated, and decided in their own peculiar facts, circumstances and the law applicable on the subject.
8. The next question which falls for determination is as to what are the powers of the Banking Court for execution of decree under the provisions of the Financial Institutions (Recovery of Finances) Ordinance, 2001 which was enacted for expediting the recoveries of the claims of the Financial Institutions. Under Section 7(4) read with Section 19(2) of the Financial Institutions (Recovery of Finances) Ordinance, 2001 the Banking Court has jurisdiction to execute its decree. Section 7(4) reads as under:--
(4) Subject to sub-section (5), no Court other than a Banking Court shall have or exercise any jurisdiction with respect to any matter to which the jurisdiction of a Banking Court extends under this Ordinance, including a decision as to the exercise of otherwise of a finance and the execution of a decree passed by the Banking Court.
Section 19(2) of the Ordinance ibid is to the following effect:--
(2) The decree of the Banking Court shall be executed in accordance with the provisions of the Code of Civil Procedure, 1908 (Act V of 1980) or any other law for the time being in force or in such manner as the Banking Court may at the request of the decree-holder consider appropriate, including recovery as arrears of land revenue."
' The conditionalities of sub-section (2) of Section 19 for the execution of decree have been the subject-matter of different cases. In this regard we may conveniently commence the survey of case law from the case of Muhammad Hassan v. Messrs Muslim Commercial Bank Ltd. Through Branch Manager and 3 others (2003 CLD 1693) wherein it was held as follows: "As far as the submission that, under the provisions of Section 19 of the Ordinance XLVI of 2001, the Court had the power to execute the decree in any manner, as it considers fit, suffice it to say that, such power can only be exercised when there is request in this behalf made by the decree- holder and the Court by application of conscious mind, comes to the conclusion that the decree cannot be executed by applying the general rules as provided in the Civil Procedure Code. We have perused the record and find an obvious omission in this behalf. The Court has never, by a speaking order on the request of the decree-holder, exercised its discretion in terms of Section 9, rendering the provisions of the Civil Procedure Code inapplicable, rather from the record, particularly from the order dated 6.6.2001 and also on account of issuance of notice to the appellant under Order XXI, Rule 66, it seems clear that the executing Court intended to execute the decree according to the provisions of the Civil Procedure Code, rather than under the special law. "
' In Muhammad Attique vs. Jami Limited and others (PLD 2010 SC 993) the Hon'ble Supreme Court held as under: "We would like, to observe here that in terms of Section 19(2) of the Financial Institutions (Recovery & Finances) Ordinance, 2001, the Executing Court has to choose the mode of execution in accordance with the provisions of the Civil Procedure Code or any other law for the time being in force or in such manner as the Banking Court may at the request of the decree-holder considers appropriate, but once it has chosen the mode as provided in the Civil Procedure Code, then it cannot be permitted to divert that mode at subsequent stage without conscious application of mind."
' In Mst. Nadia Malik vs. Messrs Makki Chemical Industries Pvt. Ltd. Through Chief Executive and other (2011 SCMR 1675) it was observed as under: "The aforesaid sub-section, stipulates three modes authorizing the banking Court to execute its decree. The first mode empowers a banking Court to execute a decree by applying the provisions of C.P.C. The second mode provides that a banking Court can execute a decree in the manner provided, under any other law for the time being in force and the third mode provides that at the request of the decree-holder, a Court may adopt any procedure for execution of a decree which it deems appropriate. The word "or" used twice in sub-section (2) of Section'19 of the Ordinance which has to be read disjunctively classify three modes for execution of the decree. In the case in hand, the Executing Court has adopted, the procedure for executing the decree as provided, under, C.P.C., which fact is manifested from the proclamations issued, at times, by it. In clause 2 of the proclamations, it is provided that the highest bidder shall deposit 25 % of the auction money immediately on conclusion of the auction. Clause 4 of the proclamations provides that the remaining 75% of the auction money shall be deposited, in Court within 15 days from the date of auction, failing which the executing Court can forfeit the amount of auction, deposited on the conclusion of the auction. These conditions are in fact borrowed from the provisions of Order XXI, Rules 84, 85 and 86, C.P.C. For executing the decree. There is nothing on record to show that the decree-holder had ever approached the banking Court to execute the decree in the manner other than the one provided under the, C.P.C. Therefore, the arguments of the learned, counsel for the appellant on the issue of application of the provisions of C.P.C. By the executing Court are without substance. .................................................................................................................................................................................................................................................................................................................................................. ..................................................................................................................................................................................................................................................................................................................................................... .......................................................................................................................................................................................................................................................................................................................................................
' The appellant admittedly has violated the mandatory conditions and the contention of the learned counsel for the appellant that the Court in its discretion can extend time to the appellant for deposit of balance amount of 75 % of the sale price after the lapse of 15 days by virtue of sub- section (2) of Section 19 of the Ordinance does not appeal to reason. The executing Court can adopt any procedure for executing decree-under banking law but this power of the Court has a rider that, it would be subject to the written request of the decree-holder, which request has never been made in the case in hand. The case in hand is fully covered by the judgment of this Court in the case of Afzal Maqsood Butt v. Banking Court No. 2, Lahore and others reported as (PLD 2005 SC 470) wherein this Court has held that non-payment of 75% balance auction amount within 15 days in violation of provisions of Order XXI, Rule 85, C.P.C. Would render the sale nullity and the executing Court is bound to order resell of the property in terms of Order XXI, Rule 86, C.P.C. Moreover, the case of the respondents is supported by the judgments of the Indian Supreme Court in the cases reported as Manilal Mohanlal Shah and others v. Sardar Sayed Ahmed Sayed Mahmad and others (AIR 1954 SC 349) and Balram son of Basha Ram v. Ilam Dingh and others (AIR 1996 SC 278), wherein it has been held that provisions of Order XXI, Rules 84, 85 and 86, C.P.C., are mandatory in nature and violation of the same would render the sale nullity."
' The Hon'ble Supreme Court of Pakistan while deciding the review petition in the case of Muhammad Attique vs. Jamil Limited and others (2015 SCMR 148) held as follows:-- "Suit on behalf of a customer or a financid institution in Banking Court, its proceedings and their culmination in a decree and its execution through attachment, auction and sale of property involve a long haul, therefore, the legislature introduced a mechanism, which enabled the financial institution to leap from one end to another without the intervention of the Court. It, thus, enacted Section 15 of the Ordinance. But where intervention of the Court is unavoidable, the legislature while updating the erstwhile law enacted Section 19 of the Ordinance. Sub-section (2) of Section 19 nevertheless, provided that the decree of the Banking Court shall be executed in accordance with the provisions of the Code of Civil Procedure or any other law for the time being in force or in such manner as the Banking Court may, at the request of the decree-holder, consider appropriate including recovery as arrears of land revenue. It is, however, discretionary with the Court to adopt any of the modes mentioned above but once the Court opts to execute the decree in accordance with the. Provisions of the Code, it cannot depart therefrom.", ' Perusal of Section 7(4) and Section 19(2) of the Financial Institutions (Recovery of Finances) Ordinance, 2001 and the survey of the afore-cited precedents unfolds the following principles:--
(i) the Banking Court may execute its decree through the following three modes:
(a) by following procedure provided in the Code of Civil Procedure, 1908; or
(b) by any other law for the time being in force; or
(c) in any such manner as the Banking Court may at request of decree holder, consider appropriate, including recovery as arrears of land revenue.
(ii) the word "or" used twice in sub-section (2) of Section 19 of the Ordinance would be read disjunctively;
(iii) it is discretionary with the Banking Court to adopt any of the above mentioned modes for executing decree under the Financial Institution (Recovery of Finances) Ordinanc.., 2001 but this power of the Court has four riders firstly, that it would be subject to written request of the decree- holder; secondly, the Court by application of conscious mind should come to the conclusion that a decree cannot be executed by applying the general rules as provided in the Civil Procedure Code; thirdly, the discretion must be exercised by "observing due process of law and through a speaking order; and, fourthly, noncompliance of above said three conditions would render the order or proceedings for the execution of decree as void.
(iv) once the Banking Court opts to execute the decree in accordance with the provisions of the Code of Civil Procedure, 1908, it cannot depart therefrom.
(v) no Court other than Banking Court shall have or exercise any jurisdiction with respect to the execution of a decree passed by a Banking Court.
9. In view of the above discussion, the Banking Courts under Section 19(2) of the Financial Institutions (Recovery of Finances) Ordinance, 2001 are fully authorized to adopt any of the three modes mentioned therein for recovery of rectal amount. Subject to afore stated principles of law the Banking Court is fully empowered to assess the rectal amount recoverable as arrears of Land revenue and direct the same to be recovered under Section 80 onward of the West Pakistan Land Revenue Act, 1967 by itself or may forward the warrants to the Collector for recovery of the same as arrears of land revenue. However, if the Court has initiated execution proceedings under any one of the modes so provided by the law, it will continue to follow the same and cannot deviate to skip to another mode of execution.
10. After settling the question under reference, we direct the office of this Court to fix the petitions for hearing before the appropriate Bench of this Court for their decision on the basis of their individual Factual and legal merits.