KHADIM HUSSAIN M. SHAIKH, J.---Through this petition, the petitioner bank/decree holder has called in question order dated 10.09.2014, passed by the learned Judge Banking Court-II Karachi in Execution Application No,67 of 2009 re-City Bank N.A. v. Mrs. Anjum Saleem judgment debtor, culminated from Suit No,290/2008, re-City Bank N.A. v. Mrs. Anjum, whereby the aforesaid Execution Application has been transferred to the Banking Court-I Hyderabad, for execution of the decree.
2. Briefly the facts of the case are that the respondent No,1 availed of the finance facility from the petitioner-Bank. As the respondent failed to repay the outstanding dues, hence the petitioner-bank filed suit bearing Suit No,290 of 2008 against the respondent No,1, which was decreed by the Banking Court-II Karachi, vide decree dated 05.05.2009. However, the decree was modified by this Court in First Appeal bearing No,25 of 2009 vide order dated 10.12.2011 and decree thereof was drawn on 10.01.2012 and then the decree holder filed the aforesaid Execution Application, which has been transferred to the Banking Court-I Hyderabad by the Banking Court-II Karachi, vide impugned order dated 10.09.2014. Having felt aggrieved by the said order, the petitioner-bank has filed this petition with the following prayer: "In view of the above stated facts and grounds, it is respectfully prayed that this Hon'ble Court may graciously be pleased to set aside the Impugned Order dated 10-09-2014 and direct the Learned Banking Court not to send the execution application to the learned Banking Court No,1 at Hyderabad. In case the Learned Banking Court has sent the file to learned Banking Court No,1 at Hyderabad, this Hon'ble Court may be pleased to direct the learned Banking Court No,1 Hyderabad to send the file to learned Banking Court No,2 at Karachi for further proceedings in accordance with law.
To grant any other relief(s) which the Hon'ble Court may deem fit and proper in the circumstances of this case."
3. Learned counsel for the petitioner-bank, referring to provisions of Section 4 of Financial Institutions (Recovery of Finances) Ordinance (XLVI of 2001) and section 39 of Code of Civil Procedure (Act V of 1908), has contended that the Banking Court-II Karachi was not competent to transfer the decree to the Banking Court at Hyderabad for execution thereof, without application moved in this regard by the petitioner-bank/decree holder; and, that the impugned order, passed by the Banking Court at Karachi, is illegal and without any lawful authority. He, therefore, prays that the same may be set aside.
4. Conversely, learned counsel for the respondent No,1 has contended that the mortgaged property is situated in Taluka Kotri District Jamshoro, which falls within the territorial jurisdiction of Banking Court at Hyderabad, per him, the Banking Court at Karachi has rightly transferred the execution application to the Banking Court at Hyderabad. He, therefore, prays that the instant petition may be dismissed.
5. We have given our anxious consideration to the arguments advanced by the learned counsel for the parties and have gone through the material available on record.
6. Subsection (3) of section 5 of Financial Institutions (Recovery of Finances) Ordinance (XLVI of 2001) (hereinafter referred to as the Ordinance) postulates that the High Court may, if it considers it expedient to do so, in the interest of justice or for the convenience of the parties or the witnesses, transfer any case from one Banking Court to another Banking Court. For the sake of convenience, subsection (3) of section 5 of the Ordinance is reproduced here: "5. Establishment of Banking Court (3) Where more Banking Courts than one have been established in the same or different territorial limits, the High Court may, if it considers it expedient to do so in the interest of justice or for the convenience of the parties of the witnesses, transfer any case from one Banking Court to another."
7. There is no other specific provision provided in the Ordinance, for transferring Execution Application for its execution by one Banking Court to another Banking Court. However, provisions of section 39 of Code of Civil Procedure (Act V of 1908), (hereinafter will be referred to as the Code), having been referred to by the learned counsel for the petitioner, relating to the transfer of a decree for its execution by the court, passing a decree, to another court, is reproduced here, for the sake of convenience: "39. Transfer of decree.---(1) The Court which passed a decree may, on the application of the decree-holder, send it for execution to another Court,-- (a)If the person against whom the decree is passed actually and voluntarily resides or carries on business, or personally works for gain, within the local limits of the jurisdiction of such other Court, or (b)if such person has no property within the local limits of the jurisdiction of the Court which passed the decree sufficient to satisfy such decree and has property within the local limits of the jurisdiction of such other Court, or (c)if the decree directs the sale or delivery of immovable property situate outside the local limits of the jurisdiction of the Court which passed it, or (d)if the Court which passed the decree considers for any other reason which it shall record in writing, that the decree should be executed by such other Court.
(2) The Court which passed a decree may of its own motion send it for execution to any subordinate Court of competent jurisdiction."
8. A bare reading of subsection (1) of section 39 of the Code, envisages that the Court, which passed a decree may, on the application of the decree holder, send it for execution to another Court and whereas subsection (2) of section 39 of the Code provides that the Court which passed a decree may of its own motion send it for execution to any subordinate Court of competent jurisdiction. We are of the view that these provisions of section 39 of the Code were not attracted to the case one in hand, for, the Ordinance, is a special law; the provisions of a special law have precedence over the provisions of general law and, in terms of section 4, the provisions of the Ordinance have overriding effect notwithstanding any thing inconsistent contained in any other law for the time being in force. For the sake of convenience, Section 4 of the Ordinance is reproduced here: "4. Ordinance to override other laws. The provisions of this Ordinance shall have effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force."
9. Even otherwise from a perusal of the impugned order dated 10.09.2014, passed by the Banking Court Karachi, it would be seen that the Banking Court Karachi has transferred the execution application to the Banking Court at Hyderabad without any application moved in this behalf by the decree holder, but the execution application was transferred by the Banking Court Karachi to Banking Court Hyderabad on its own motion although subsection (2) of section 39 of the Code permits the suo-motu transfer of a decree by the court, which passed the decree, to a subordinate Court of competent jurisdiction. In our humble view, the Banking Court Hyderabad cannot be termed to be a subordinate Court of Banking Court Karachi. Furthermore, there seems to be no embargo on the jurisdiction of the Banking Court to execute a decree or cause attachment and sale in respect of the properties falling outside its territorial jurisdiction and, thus the Banking Court Karachi being a Special Court constituted under the Special Law could execute the decree by attaching and/or selling the properties situated in District Jamshoro.
10.In view of what has been stated above, we are of the considered view that the impugned order dated 10.09.2014, passed by the Banking Court Karachi, transferring execution application to Banking Court Hyderabad for its execution being illegal ab initio is liable to be set aside and the instant petition deserves to be allowed..
11.Above are the reasons of short order dated 16.11.2016, announced by us, whereby this petition was allowed with directions to the office to send the file of execution to the Banking Court-II at Karachi for further proceedings in accordance with law.