AZ1Z-UR-REHMAN, J.---By means of this 1st Appeal filed on 23.12.2013 under section 22 of the Financial Institution (Recovery of Finances) Ordinance, 2001, the Appellants feeling aggrieved by the 'Impugned Order' dated 20.11.2013 [Annexure 'A/1' to MoA], passed by the learned Judge, Banking Court No.IV at Karachi, in Suit No.274/2010 filed by Respondent No.1 Bank on 15.10.2010 [KASB Bank Limited and another v. [i] Pak Land Corporation (Pvt.) Ltd., [2] Faisal Akram son of Akram Khan and [iii] Mrs. Masuda Akram widow of Akram Khan], whereby , the Application for Review under Order XLVII, Rule 1 read with section 151, C.P.C. read with section 12(2), C.P.C., for setting aside the earlier Orde r dated 19.05.201 1 [Annexure 'A/2' to the MoA] whereby , the Joint Compromise Application under Order XXIII, Rule 3, C.P.C., duly signed by the parties and their counsel, was allowed and consequently a Compromise Decree [Annexure 'A/3' to the MoA] was passed on 04.06.201 1, only against Appellants Nos. 1 and 2 who were Defendants Nos.1 and 2 in the said Banking Suit No.274 of 2010 [KASB Bank Limited v. Messrs Pak Land Corporation (Pvt.) Ltd and others], have approached this Court with the prayers as follows: "a]. Pass an order to set aside the impugned order dated 20.11.2013 and order dated 19.05.201 1 and impugned decree thereof dated 04.06.201 1 as, both orders ad decree therewith, obtained by way of fraud and misrepresentation by the plaintiff/respondent from this Hon'ble Court against the defendants/Appellant and order to restore the above noted suit at its proceedings were pending as was prior to obtaining the impugned order dated 19.05.201 1 and decree dated 04.06.201 1. b]. Any other relief(s) that this Hon'ble Court may deem fit, according to the facts and circumstances of the above noted petition, in favour of the defendants/Appellant and against the plaintiff/respondent named above. c]. Cost of the litigation."
2. The facts leading to the filing of the instant 1st Appeal are that Respondent No.1 Bank [Plaintif f] being a Banking Company duly licensed by the State Bank for carrying on banking business in Pakistan is a Financial Institution within the meaning of and as defined in section 2(a) of the Financial Institutions (Recovery of Finances) Ordinance, 2001 [In short F .I.O., 2001].
3. The Appellant No.1 "[Defendant No.1], is a private limited company , carrying its' business under the name and style of Messrs Pak Land Corporation (Pvt.) Limited and since, have availed certain finance facilities from the KASB Bank as such, is a customer of Respondent No.1 Bank within the meaning and as defined in section 2(c) of F.I.O., 2001.
4. Defendant No. 1 as being a customer of KASB Bank Ltd. through its' Director/D efendant No.2 viz. Faisal Akram son of M. Akram Khan created mortgages in favour of Respondent No.1 Bank, as to secure the finance facilities granted to and availed by the Appellant No.1 [Defendant No.1] from time to time. For the facilities so granted to and availed by Defendant No.1, Defendants Nos.2 and 3 [Appellants Nos.2 and 3] also signed and extended personal guarantees in favour of Respondent No.1 Bank for to secure the payment obligations of the Appellant No.1 [Defendant No.1], as such, they also fall within ambit of customers , as defined in section 2(c) of F .I.O., 2001.
5. Despite, availing of the finance facilities granted to and availed by Appellants, the Appellants, however , failed and/or avoided to fulfill their repayment obligations, hence, the Respondent No.1 Bank, constrained to file a Banking Suit hearing No.B-274 of 2010 [KASB Bank Limited v. Messrs Pak Land Corporation (Pvt.) Ltd. and others] before the Banking Court No.IV at Karachi, under section 9 of the Financial Institutions (Recovery of Finances) Ordinance, 2001 [XLVI of 2001] for recovery of Rs.31,024,251.89 , as on 30.09.2010 along with cost of funds, cost of suit and sale of the mortgaged properties as referred to and mentioned in Para 8 of the plaint.
6. The description of the three [3] immovable properties duly mortgaged with Bank and details of the 'title documents' thereof respectively , are as follows:
1. All that piece and parcel of office Nos.1 and 7, measuring 1500 sq. ft. on the first floor of the building known as 'Zull Jalal Centre', together with 1/10th undivided share in Plot No.172-F , Survey Sheet No.35-P/1, measuring 636 sq. yds situated at Block No.2, Main Tariq Road, Pakistan Employees Cooperative Housing Society Limited, Karachi.
(i) Indenture of Sub-Lease dated 19.04.2000
(ii) Search Certificates dated 15.12.2007 and 14.06.2008
(iii) Registered Mortgage Deed dated 30.07.2009
(iv) Memorandum of Deposit of T itle Deed dated 13.12.07
2. All that piece and parcel of office No.20, measuring 2600 sq. ft, 2nd Floor , Building known as 'Zull Jalal Centre', together with 1/5th undivided share in Plot No.172-F , Survey Sheet No.35-P/1, measuring 600 sq. yds, situated at Block No.2, Main T ariq Road, Pakistan Employees Cooperative Housing Society Limited, Karachi.
(i) Indenture of Sub-Lease dated 02.03.2009
(ii) Registered Mortgage Deed dated 30.07.2009
(iii) Memorandum Confirming Deposit of T itle Deeds and Documents dated 24.06.2009
3. Apartment No.F-304, measuring 1017 sq. ft. in area, situated at the 3rd Floor of the building commonly known as the Regency Plaza, 120-P Gulberg-II, Lahore together with and all rights and easements appurtenant thereto.
(i) Sale Deed dated 16.12.2002
(ii) Supplemental Memorandum Deposit of T itle Deeds and Documents dated 28.09.2005.
7. The suit filed by Respondent No. 1 Bank was under section 9 of the F.I.O., 2001, inter alia, for recovery of Rs.31.024,251.89 along with cost of funds, cost of suit and sale of the mortgaged properties . The prayers sought in the plaint of Suit No. 274 of 2010 [KASB Bank Limited v. Messrs Pak Land Corporation (Pvt.) Ltd. and 2 others] , read as follows:-
(i) A decree in the sum of Rs.3,10,24,251.89 with future cost of fund from the date of default at the prescribed 'rate by the State Bank of Pakistan, payable by the defendants to the plaintiff/Bank till its final payment by the defendants.
(ii) To direct the defendants 2 and 3 to pay a sum of Rs.10804 (M) to the plaintiff /Bank towards their Guarantees issued on their behalf not yet returned.
(iii) Final decree for the sale of aforesaid immovable mortgaged properties belonging to defendants Nos.2 and 3 as prescribed in para 8 of the plaint. In case of insufficiency and deficiency of the decretal amount, the same may be recovered through the disposal of the personal assets belongs to the defendants Nos. 2 and 3.
(iv) Decree for the sate of hypothecated goods as per letter of hypothecation Annexure 'B/6' to the plaint.
(v) Cost of the suit and other cost, charges and expenses.
(vi) Any other relief/reliefs as deem by this Hon'ble Court under the circumstances of the case.
8. Upon service, an Application under section 10, F.I.O., 2001, was filed by the Defendants having been duly signed by Defendant No.2 viz. Faisal Akram son of Akram Khan for himself and also on behalf of Defendant No.1 viz. Messrs Pak Land Corporation Limited and Defendant No.3 viz. Mrs. Masuda Akram wherein, besides, denying allegations contained in the plaint, a prayer was sought for grant of an un-conditional LEAVE TO DEFEND the above suit inter alla for recovery of the outstanding amount of Rs.31,024,251.89 , as on 30.09.2010 .
9. In response to the Defendants' Leave-to-Defend Application, the Plaintif f Bank, thereafter , had also filed Replication/Reply wherein, not only the adverse allegations were denied but also the contents and assertions made by the Defendants in their 'common' Leave to Defend Application were seriously controverted.
10. During pendency of the Defendants' Leave to Defend Application, it appears, that the dispute involved was negotiated and settled between the partie s and consequently , an APPLICA TION under Order XXIII, Rule 3, C.P.C., was filed in the Bank's suit for recovery of Rs.31,024,251.89 , as on 30.09.2010 . On 19.05.201 1 when, the said jointly filed compromise application' under Order XXIII, Rule 3, C.P.C., came-up before the Court, then the following order was passed: "19.05.201 1
1. Mr. Muhammad Zia Qureshi, advocate along with Messrs Muhammad Sultan Khan and Muhammad Siddique, the attorneys of the plaintiffs bank are present so also the defendant namely Faisal Akram Director/Mortgagor/Guarantor of defendant No.1 along with his advocate Ms. Jamila Siraj. Both the parties have submitted a joint application under Order XXIII, Rule 3, C.P.C. duly signed by them, as well as the learned counsel for the plaintiff praying to dispose of the suit in terms of compromise, contained in the said application.
2. The suit against the defendant No.3 has already been dismissed as not pressed on behalf of the plaintiff on account of death of the said defendant and such separate order passed by the court as available on record. The terms and conditions contained in the above said application were read over to both the remaining parties in open court which they fully understood and admit. The Suit No.274 of 2010 is accordingly decreed in terms of compromise as contained in the above said application." [Underlining is ours]
11. Upon passing of the aforesaid 'consent order' dated 19.05.201 1, whereby , the jointly filed Compromise Application , was granted and the Bank's suit for recovery and sale of the mortgaged property , was consequently decreed in terms of the Compromise Application. The 'terms' and 'condition' agreed upon between the parties to Suit No.274/2010, read as follows:
1. The defendants have agreed to settle the outstanding liabilities of Rs.26,370,296/- on the following terms and conditions:-
2. Down payment of Rs.1.046 (M) to be made by the defendants upto 20th February 201 1 in the following manner a. The defendants to pay Rs.0.500 (M) through pay order on or before 20th February 201 1. Since paid. b. By reversal of margin Rs.0.546 (M) held against the various b/Gs. The borrowers/defendants to ensure, the original letter of guarantees are returned for reversing the margin. c. The defendants to sell their property in six months from the date of approval i.e. 7th February 2011 bearing office Nos.] and 7 on first floor, Zuljalal Centre, Tariq Road, PECHS, Karachi, FSV Rs.18.400 (M) and deposit the sale proceeds directly with the plaintiff/KASB Bank Ltd. towards adjustment of their principal outstanding liability . Any shortfall in sale proceeds of the amount of forced sale value i.e. Rs.18.400 (M) shall be paid to the plaintiff/bank by the borrowers/defendants from their own resources. d. The plaintiff/KASB Bank Ltd. shall issue "No objection certificate" for sale of property with the condition of deposit of sale proceeds directly with plaintiff/KASB Bank Limited. e. The defendants have to pay balance principal amount after appropriation of sale proceeds of the property in five years in 20 equal quarterly installments in the following manner i. For the first three years in equal quarterly installments without markup. ii. For the last two years in equal quarterly installments along with cost of funds as prescribed by the SBP from time to time. f. The defendants shall provide in all 20 cheques of equal quarterly installments for the balance payable principal amount. First twelve cheques for the three years and thereafter eight cheques for the remaining period of two years. g. The defendants have to pay cost of fund for the last two years separately on the balance payable principal amount. h. The rescheduling/restructuring arrange ment shall be compromised through the Court in bank's recovery suit by way of compromise consent Court decree. i. The criminal complaint filed against the directors of the company shall be withdrawn after compromise/consent decree is obtained from the Court and down payment is made by the borrowers. j. In case of default by the defendants in payment of any quarterly installment and/or violation of any terms and conditions of the settlement arrangement by the borrowers/ defendants, rescheduling/restructuring arrangements will become null and void and the bank shall be entitled to recover entire outstanding liability amounts along with up to date markup in all respect."
12. Pursuant to passing of the compromise decree dated 04.06.201 1 in the above terms and conditions, the Appellants [Defendants/J.Ds.], however , failed and/or avoided to liquidate their liability and/or to discharge their legal obligations in terms of the compromise decree. For and on accounts of the J.Ds./defendants, default, the Decree Holder Bank, was left with no option but to file Execution Application No.138 of 2012 , before the concerned Banking Court, inter alia, for enforcement of the compromise decree in terms thereof.
13. On filing of the Execution Application No.138/2012, the Appellant/J.Ds. instead of paying the decretal amount in terms of the compromise decree passed on 04.06.201 1, filed a Review Application under Order XLVII, Rule 1, C.P.C. read with section 151, C.P.C. read with 12(2), C.P.C. on 08.04.2013 , through two appellants Nos.1 and 2/J.Ds. and one Mst. Sameera Faisal claiming to be Director/ Share hold of [not party to the suit], for setting aside the 'consent order' dated 19.05.201 1 and compromise decree, passed thereafter , on 04.06.201 1. The prayers sought in the aforesaid Review Application under Order XLVII, rule 1, C.P.C. read with section 151, C.P.C. read with section 12(2), C.P .C. read as follows: "In view of the above noted facts, grounds and circumstances, it is respectfully submitted and prayed by the defendants/applicants named above that this Hon'ble Court may be pleased to pass an order and direction(s) in favour of the defendants/applicants and against the respondents named above as prayed and as follows: a) Pass an order to set aside the impugned order dated 19.05.201 1 and impugned decree thereof dated 04.06.201 1 as both obtained-by way of fraud and misrepresentation by the plainti ff/ respondent from this Hon'ble Court against the defendants/ applicants and order to restore the above noted suit at its proceedings were pending as was prior to obtaining the impugned order and decree and application for the compromise filed in above noted suit. [Underlining is ours] b) Any other relief(s) that this Hon'ble Court may deem fit, according to the facts and circumstances of the above noted petition, in favour of the defendants/applicants and against the plaintiff/respondent named above. c) Cost of the litigation."
14. On service, the Respondent No.1 Bank [Decree-Holder Bank] in reply to the said Application filed a detailed 'counter-af fidavit', wherein, besides ques tioning the maintainability of the Review Application read with section 12(2), C.P.C., the assertions/allegations made therein, contrary to the stand of Decree Holder Bank / Respondent No.1 Bank, were denied specifically . The appellants/J.Ds. in response to the Decree Holder's 'Counter-Af fidavit' also filed an 'affidavit-in-rejoinder' . Finally , the Review Application under Order XLVII, Rule 1, C.P.C. read with section 151, C.P.C. read with section 12(2), C.P.C., was heard and DISMISSED vide 'IMPUGNED ORDER' dated 20.11.2013. The operative part of the 'Impugned Order' dated 20.11.2013 for ready reference is reproduced herein below: "Application is not legally maintainable for challenging the consent/compromised _decree in view of the facts and circumstances of the case i.e. failure by defendants/applicants to establish that the decree was obtained by fraud or misrepresentation or that the same suffered for want of jurisdiction. Accordingly application is dismissed with no order as to costs."
15. The two Appellants/J.Ds. and one Mst. Sameera Faisal Director/Shareholder [who was/is not party to the suit], somehow , feeling themselves 'aggrieved' and 'dis-satisfied' with the Impugned Order dated 20.11.2013 , opted to file the instant 1st Appeal No.66 of 2013 [Messrs Pak Land Corporation (Pvt.) Ltd. and others v. Khadim Ali Shah Bukhari (KASB) Bank Ltd. and anothe r], on 23.12.2013 , with a prayer inter alia for setting aside the 'impugned order' dated 20.11.2013 .
16. Lastly , on 20.02.2018, when the above. 1st Appeal came-up before us, then we heard Mr. Shah Faisal Qureshi, learned counsel for the Appellants/J.Ds. and Mr. M. Ishaque Ali, learned counsel for the Respondent No.1 Bank and also gone through the available record with their assistance.
17. Mr. Shah Faisal Qureshi, learned counsel for the appellants, contended that the learned trial Court has failed to apply judicial mind while, passing of the 'impugned order' dated 20.11.2013 , otherwise, the Review Application read with section 151, C.P .C. read with section 12(2), -C.P .C. read with section 151, C.P .C., would have been allowed.
18. Learned counsel for the two Appellants/J.Ds. and one stranger viz. Sameera Faisal, next vehemently contended that the learned trial Court besides, not following the principle as laid down in the case of Ameer Umar and another v. Additional District Judg e, Dera Ghazi Khan and others [2010 SCMR 780], has erred and/or failed to take note of the so-called 'fraud' and 'mis-representation' allegedly , played upon the Court sometime in the year, 2006, [before filing of Suit No.274 of 2010], while, allowing the compromise application. The 'consent decree' passed by learned Banking Court No. IV, Karachi, per Appellants' counsel, is bad in law, as according to the appellants' stand, it was passed for exorbitantly charged 'Mark-up' in violation of law and of SBP's Circulars Nos.13 and 32.
19. Mr. Shah Faisal Qureshi, learned counsel for the Appellants. further contended that though the compromise decree of 04.06.201 1, is for lesser amount of Rs.26,370.296/- than Rs.31 024 251.89 as was claimed by Respondent Bank in its Suit No.274 of 2010 [KASB Bank Limited v. Messrs Pak Land Corporation (Pvt Ltd. and Others] , but still, the decretal amount of Rs.26.370.296/ - is more than what was actually due on 19.05.201 1, when Bank's suit was decreed in terms of the jointly filed compromise Application. .
20. Mr. Shah Faisal Qureshi, next contended that since, RIBA has been declared un-Islamic, as such, the Banks/Financial Institutions now are not within their rights to charge 'INTEREST'/'MARK-UP' over 'mark-up' in respect of any loan/finance facility[ies] provided to any citizen of Pakistan or their customers in any mode introduced and holding field, which is/are contrary to the Interest Free Islamic Banking System in Pakistan. In this regard reliance has been placed on the case of Dr. M. Aslam Khaki and others v. Syed Muhammad Hashim and others [PLD 2000 SC 225 ]. Being relevant paras 242 to 251 therefrom, are reproduced herein-below: "242. Any additional amount over the principal in a contract of loan or debt is the riba prohibited by the Holy Qur'an in several verses. The Holy Prophet (peace be upon him) has also termed the following transactions as riba:
(i) A transaction of money for money of the same denomination where the quantity on both sides is not equal, either in a spot transaction or in at transaction based on deferred payment.
(ii) A barter transaction between two weighable or measurable commodities of the same kind, where the quantity on both sides is not equal, or where the delivery from any one side is deferred.
(iii) A barter transaction between two different weighable or measurable commoditi es where delivery from one side is deferred.
243. These three categories are termed in the Islamic jurisprudence as riba-al-sunnah because their prohibition is established by the Sunnah of the Holy Prophet (peace be upon him). Along with the riba-al-Qur 'an, these are four types of transactions termed as "riba" in the literature of Islamic filth based on the Holy Qur'an and Sunnah.
244. Out of these four transactions, the last two ones, mentioned above as (ii) and (iii) have not much relevance to the context of modern business, the barter business being a rare phenomenon in the modern trade. However , the riba-al-Qur'an, and transaction of money mentioned above as (1) are more relevant to modern business.
245. In the light of the detailed discussio n above, there is no difference between different types of loan, so far as the prohibition of riba is concerned. It also does not make any difference whether the additional amount stipulated over the principal loan or debt is small or large. It is, therefore, held that all the prevailing forms of interest, either in the banking transactions or in private transactions do fall within the definition of "riba" . Similarly , any interest stipulated in the Government borrowings, acquired from domestic or foreign sourc es, is riba and clearly prohibited by the Holy Qur'an.
246. The present financial system, based on interest , is .against the Inji4nctions of Islam as laid down by the Holy Qur'an and Sunnah, and in order to bring it in conformity with Shari'ah, it has to be subjected to radical changes.
247. A variety of Islamic modes of financing has been developed by Islamic Scholars, economics and bankers that may serve as a better alternative to interest. These modes are being practiced by about 200 Islamic financial institutions in different parts of the world.
248. These alternatives being available, the transaction of interest cannot be allowed to continue for ever on the basis of necessity . Many experienced bankers, to name the few such as Dr. Ahmed Muhammad Ali, President Islamic Development Bank, Jeddah, Mr. Adnan, al-Bahr , Chief Executive International Investor , Kuwait, Mr. lqbal Ahmed Khan, Chief Executive Islamic Unit of the Hong Kong Shanghai Banking Corporation (HSBC) based in London from outside Pakistan and Mr. Abdul Jabbar Khan, the former President of the National Bank of Pakistan, Mr. Shahid Hasan Siddiqui and Mr. Maqbool Ahmed Khan from Pakistan are the bankers who have a long experience of banking in different parts of the world, besides others appeare d before us. All of them were unanimous on the point that Islamic modes of financing are not only feasible, but are also more beneficial to bring about a balanced and stable economy , for which they have produced detailed proof based on facts and figures.
Some outstanding economists like Dr. Umar Chapra, the economic advisor Saudi Monetary Agency , Dr. Arshad Zaman, the former Chief Economist of the Ministry of Finance Government of Pakistan, Prof. Khurshid Ahmed, Dr. Waqar Masood Khan, have supported this view in their detailed discourses.
249. We have also gone through the detailed reports Of the Council of Islamic Ideology submitted in 1980, the report of the commission for Islamizatio n of Economy constituted in 1991, and the final report of the same commission, the report of the Prime Minister's Committee on Self-Reliance, subm itted to the Government in April, 1991.
250. There is thus ample evidence to prove that quite a substantial ground work has been done to suggest the strategy for the transformation of the existing financial system to the Islamic one and the present interest based system cannot be retained for an indefinite period on the basis of necessity . However , the transformation may take sometime which can be allowed on that basis . [Underlining is ours]
251. For the reasons given above, all these appeals are hereby dismissed in the terms detailed hereafter in the Order of the Court."
21. As far as the aforesaid judgment in the case of Dr. M. Aslam Khaki v. Syed Muhammad Hashim, reported in PLD 2000 SC 225 is concerned, the same has later-on been set aside by the Hon'ble Supreme Court [Shariat Review Jurisdiction] and the concerned case[s] were remitted to Federal Shariat Court for determination afresh.
The concluding para 19 from the case of United Bank Ltd. v. Messrs Farooq Brothers and others [PLD 2002 SC 800 1, reads as follows:
19. Resultantly , Civil Shariat Review Petition No. 1 of 2000 filed by the United Bank Ltd. is allowed, the judgment, dated 23rd December , 1999 passed by the Shariat Appellate Bench of this Court in Shariat Appeals Nos. 11 to 19 of 1992 and the judgment dated 14th November , 1991 of the Federal Shariat Court passed in Shariat Petitions Nos.42-1 + 45-1 of 1991 etc. are set aside and the cases are remitted to the Federal Shariat Court for determination afresh in the light of the contentions of the parties noted above and the observations made which are germane to the controversy . Besides-the points raised before this Court, the parties would be at liberty to raise any other issue relevant to these cases and the Federal Shariat Court may also, on its own motion, take into consideration any other aspect which may arise or may be found relevant for determination of the issues involved herein.
22. Lastly , learned counsel for the Appellants forcefully contended that if, the instant 1st Appeal No.66 of 2013 , is not allowed, as prayed, then, indeed, the Appellants shall be seriously prejudiced as Respondent No.1 Bank [Decree-holder Bank] vis-a-vis the enforcement of the 'Compromise Decree' passed on 04.06.201 1, has already initiated execution proceedings by means of filing Execution Application No.138 of 2012 , before the concerned Banking Court. Lastly , Mr. Shah Faisal Qureshi, learned counsel for the Appellant prayed for allowing the above 1st Appeal as prayed.
23. Against the above, Mr. M. Ishaque Ali, learned counsel for KASB Bank Ltd., vehemently contended that the Review Application under Order XLVII, Rule 1, C.P.C. read with section 151, C.P.C. read with section 12(2), C.P.C., in the style as 'framed' and 'filed' is not only mis-conceived but also not maintaina ble in law. Per learned counsel, admittedly , the Bank's suit has been decreed in 'terms' of the compromise application jointly filed by the parties.
Reference in this regard was made to order dated 19.05.201 1, passed by the learned Judge of Banking Court No. IV, Karachi, whereby , the Bank's suit was decreed in 'terms' of the compromise application.
24. Per Mr. M. Ishaque Ali, learned coun sel for the Respondent Bank, the Judgment-debtors/Appellants besides having not approached this Court with clean hands, seem in a drill to linger on the Execution Proceedings. The Judgment-debtors/Appellants since have failed and/or avoided to fulfill their obligations under the Compromise Decree dated 04.06.201 1; as such, the execution proceedings initiated by the Decree-holder Bank for enforcement of the compromise decree dated 04.06.201 1 in no manner can be alleged as unjustified or otherwise, it could be challenged by way of raising pseudo pleas and/or by joining two [2] sections of C.P.C. which are meant for to cover different situation under dif ferent circumstances and with dif ferent restrictions.
25. Mr. M. Ishaque Ali, next contended that the allegations of 'fraud ', 'mis-representation' , at this belated stage of execution is not only afterthought but have been levelled in a calculated manner/ obviously with an intention to forestall the execution proceedings, otherwise, knowingly , the Judgment-debtors have no case. Lastly , learned counsel while, concluding his arguments prayed for the swift dismissal of the above 1st Appeal, otherwise, as urged, the Decree-holder Bank/Respondent Bank shall be seriously prejudiced.
26. Heard. Perused the record.
27. Manifestly , the Appellants have mis-directed themselves in filing of the Application under Order XLVII, Rule 1, C.P.C. read with section 151, C.P.C. read with section 12(2), C.P.C., for setting-aside the Order dated 19.05.201 1 and 'compromise decree' dated 04.06.201 1, for the reason that under the provisions of section 27 of F.I.O., 2001, a review of order etc., is not permissible, as in terms of section 27 of F.I.O., 2001 , no Court or other authority , can revise or review or call or permit to be called into question any proceedings, judgment, decree, sentence or order of the Banking Court or the legality or propriety of anything done or intended to be done by the Banking Court in the exercise of jurisdiction under F.1.0., 2001. This, however , is subject to the provision of Appeal i.e. section 22 of F.I.O., 2001 it is significant to note, is a special law and as provided therein under section 4, it overrides all other laws to the extent of inconsistency . The filing of such Application under Order XLVII, Rule 1, read with section 151, C.P.C. read with section 12(2), C.P.C., is not only mis-conceived/mis-leading but also seems an attempt to duplicate/confuse the remedy actually available under the law. On this score alone the application as framed and filed is liable to be dismissed.
28. For removal of the confusion as having been attempted by the Appellants/Judgment-debtors at this juncture i.e. seeking Review , which is barred under F.I.O., 2001, we would like to reproduce sections 4 and 27 of F.I.O., 2001 herein-below:-
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.
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. [Underlining is ours] 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.
29. On the above aspect of the matter , reliance can be made to the case of Askari Commercial Bank Limited through Authorized Signatory v. Messrs Bake Line Products through Partners and 5 others [2013 CLD 836 DB], wherein, it was held as follows:
10. Even otherwise, the provision in its application is clear and unambiguous. The clerical error as has been reproduced by us in the upper part of this judgment means omission of a kind which if corrected does not change the effect of the main order . If such correction of error ends, increases, or reduces the liability , it would amount to review or revisit, which is not covered even by the definitions produced by the appellant's counsel. If one accepts the argument of the appellant, what he is trying to impress upon is that the decree should have been for greater amount than what learned Judge Banking Court has announced. This obvious ly will prejudice the case o the respondent to a further extent than the present order . Enhancement of the liability cannot be done through 'correction of clerical error' or omission or typographical mistake'. In fact the judgment referred by the appellant and then relied upon respondent as well, has clinched the issue but not in favour of the appellant. The Hon'ble Sindh High Court Karachi while discussing the scope of section 27 has observed as follows:- "In my humble estimation, even error of law or non-consideration of any particular provision by a Banking Court while rendering any decision, order , judgment or sentence cannot be revisited by the Banking Court in view of limitation to exercise the jurisdiction as laid down under section 27 ibid. When the legislature deliberately has placed a limitation on exercise of such powers, same cannot be drawn, extended or stretched by invoking provisions of general law as such exercise will defeat the very purpose of the Banking Ordinance, 2001 ."
11. There is, therefore, no cavil with regard to the interpretation of the above provision of law. It leaves no doubt that Courts cannot extend its arms under the garb of correction of a clerical error so as to increase a liability .
Obviously , a Banking Judge cannot be allowed to sit an appellate authority against its own order . Review or revisiting or correcting an error, which changes the fate of the judgment and decree is beyond the scope of section 27, which has a very restricted application. [Underlining is ours).
30. Needless to observe that the provisions of Civil Procedure Code, 1908 [Act V of 1908], shall remain to continue and applicable to the Banking cases/Banking Courts if, not ousted by the provisions of F.I.O., 2001 expressly . In view of this position, contention of Bank's counsel, even if, the application of review is treated as an application under section 12(2), C.P.C., then too it would be incompetent in law as order dated 19.05.201 1 and decree dated 04.06.201 1, have already attained finality , in our view, is not only against the law but also seems mis-conceived. In this regard reference can be made to the case of Muhammad Yaqoob and others v. Messrs United Bank Limited and others [2007 SCMR 922 ], wherein, it was held as follows:-
3. ...There is no cavil to the proposition that the provisions of Civil Procedure Code, 1908 continue to be applicable being not ousted by the provisions of Banking Companies (Recovery of Loans, Advances, Credits and Finances)
Act, 1997 . In this regard reference can be made to the dictum laid down in case of Muhammad Ayub Butt v. Allied Bank Ltd. PLD 1981 SC 359. The question as to whether section 12(2), C.P.C. has been ousted or not should have been, examined by the learned Single Judge in the light of provisions as enumera ted in section 3 of the Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act, 1997 which could not be done: The significance and import of section 12(2), C.P. C. was examined by the learned Sindh High Court in case Mian Ahmed v . United Bank Limited PLD 1998 Karachi 278 and it was held as follows: "The appellant can seek relief under section 12(2) of the Code of Civil Procedure. We would, therefore, leave the question of quantum of liability of the appellant to be taken up in terms of section 12(2), C.P.C. That provision, needless to add, effectively provides for safeguards against a decree which may have, inter alia operated in excess of jurisdiction. The applicability of section 12(2), C.P.C. to the proceedings before a Special Court does not seem to be in doubt because section 3 in the Banking Companies [Recovery of Loans) Ordinance 1979, expressly mandates that the provisions of the Ordinance shall be in addition to and unless otherwise provided, not in derogation of other laws. Besides, a Special Court, in all the powers of a civil Court under the Code of Civil Procedure, which obviously includes powers' under section 12(2), C.P.C. What is more, procedure of such Court, relevantly pursuant to section 7 of the Ordinance, is the summary procedure provided for in Order XXXVII of the Code, in turn subject to section 12, if attracted." (Underlining is ours].
31. Though, section 12(2), C.P.C., as seen is applicable in Banking matters but in no event it can be a substitute of Appeal, as provided A under section 22 of F.I.O., 2001. In the case in hand , it is worth to mention that a compromise decree was passed on 04.06.201 1, upon the jointly filed application under Order XXIII, Rule 3, C.P.C., as such, the Appellants did seal their own fate to challenge the same under section 22 of F.I.O., 2001. The Compromise Decree, under such circumstances has already attained finality . The provisions of section 12(2), C.P.C. or section 151, C.P.C., in no event , are a substitute of 1st Appeal/Spl. High Court Appeal, as provided to be filed under section 22 of F.I.O., 2001. Beside these provisions cannot be construed as something over and above the normal mode of challenging Judgment and Decree by way of an Appeal.
32. So far, the question of limitation regarding filing of the Application under section 12(2), C.P.C., is concerned, the Appellants'/ Judgment debtors' application under section 12(2), C.P.C., in our view, is not time barred, as urged by Mr. M. Ishaque Ali. Admittedly , in the case in hand, the Application under section 12(2), C.P.C. has been filed on 08.04.2013 which, in our opinion, is quite within the time limit of 3 years w.e.f. passing of the decree on 04.06.201 1.
Needless to say, in the Limitation Act, no any period has been prescribed for filing the Application under section 12(2), C.P.C., therefore, in such like situation, the residuary Article 181 of Limitation Act would govern the situation which prescribes a maximum period of 3 years . Reference, in this regard, can be made to the case of Sarfraz v.
Muhammad Ahmed Khan and another [2001 SCMR, 1062 ], wherein, it was observed as follows:- "...In this behalf it may be noted that although under the provisions of the Limitatio n Act no specific time has been prescribed for filing of application under section 12(2), C. P. C. , therefore, Article 181 of Limitation Act being residuary will govern such proceedings according to which maximum period of three years has been filing under section 12(2), C. P . C. " [Underlining is ours]
33. With regard to the grievance of Appellant No.3 [who was not party to suit], it is worth to mention herein that the compromise decree of 04.06.201 1, passed against the Appellants Nos. 1 and 2/Judgment- debtors in fact has caused no prejudice to Appellant No.3's interest, who claims to be only a Director/Shareholder of Appellant's No.1 company . Be that as it may, she has no locus standi and/or 'cause of action' to file the 'APPLICA TION' under Order XLVII, Rule 1, C.P .C. read with section 151, C.P .C. read with section 12(2), C.P .C.
34. Manifestly , the Appellants, in the case in hand, are not disputing the execution of FINANCIAL DOCUMENTS, AVAILMENT of the finance facility[ies], and/or RE-SCHEDULING thereof. As far as the case of Dr. M. Aslam Khaki v. Syed Muhammad Hashmi [PLD 2000 SC 225] is concerned, the same, so far, has not ATTAINED ANY FINALITY . Nevertheless, in this regard we would like to refer to 'clauses 2 and 3' of Article 203D and 'clause 2' to Article 203F of the Constitution of Islamic Republic of Pakistan, 1973, which being relevant is to some extent, are reproduced herein-below respectively: a. "Article 203D Powers, jurisdiction and functions of the Court. --(2) If the Court decides that any law or provision of law is repugnant to the Injunctions of Islam, it shall set out in its decision
(a) the reasons for its holding that opinion; and
(b) the extent to which such law or provision' is so repugnant, specify the day on which the decision shall take effect [:1 [Provided that no such decision shall be deemed to take effect before the expiratio n of the period within which an appeal therefrom may be preferred to the Supreme Court or, where an appeal has been so preferred, before the disposal of such appeal.]
(3) If any law or provision of law is held by the Court to be repugnant to the Injunctions of Islam, --
(a) the President in the case of a law with respect to a matter in the Federal Legislative List or the Concurrent.
Legislative List, or the Governor in the case of a law with respect to a matter not enumerated in either of those Lists, shall take steps to amend the law so as to bring such law or provision into conformity with the Injunctions of Islam; and
(b) such law or provision shall, to the extent to which it is held to be so repugnant, cease to have effect on the day on which the decision of the Court takes effect. [Underlining is ours]. b. Article: 203F Appeal to Supreme Court .---(2) The provisions of clauses (2) and (3) of Article 203D and clauses
(4) to (8) of Article 203E shall apply to and in relation to the Supreme Court as if reference in those provisions to Court were a reference to the Supreme Court."
35. Besides, we would also like to refer to sections 19 and 21 of the Enforcement of Sharia Act, 1991 [Act X of 1991], which sections in our view, also bind the customers to fulfill their promises, obligations and commitments, until an alternative economic is evolved. The said sections for ready reference are reproduced hereinbelow:
19. Fulfillment of existing obligations . Nothing contained in this Act or any decision made thereunder shall affect the validity of any financial obligations incurred, including under any instruments, whether contractual or otherwise, promises to pay or any other financial commitments made by or on behalf of the Federal Government or a Provincial Government or a financial or statutory corporation or other institution to make payments envisaged therein, and all such obligations, promises and commitments shall be valid binding and operative till an alternative economic system is evolved. [Underlining is ours].
21. Laws to be enacted by Malis-e-Shoora Parliament and Provincial Assembly only. Notwithstanding anything contained in this Act or the judgm ent of any Court, including the Supreme Court, all laws shall be enacted exclusively by the Majlis-e-Shoora (Parliament) and the Provincial Assembly , as the case may be, and no law shall be made or be deemed to have been made unless it' is made in the manner laid down in the Constitution."
[Underlining is ours].
36. Per Appellants' stand, all 'sorts of transaction' based on 'interest' including charging of 'markup' on the 'rescheduled amount' is not only 'HARAM' but also prohibited under SBP's. Circulars Nos.13 and 32 issued on 20.06.1984 and 26.09.1984 respectively . The contentions Appellants/Judgment-debtors raised at this belated stage cannot be looked into or considered after passing of a 'Compromise Decree' dated 04.06.201 1. The Appellants Nos.1 and 2 as being Judgment-debtors were fully aware vis-a-vis, charging of the 'mark-up' under FINANCE AGREEMENTS duly signed and executed between the parties. The said Appellants/Judgment-debtors instead, as being urged now got themselves fully benefitted from the financial facilities grante d to and availed by them. Even the Re-scheduling of the finance facilities was done at the request of Appellants/Judgment debtors. In view of this position, as well, the Appellants/Judgment-debtors cannot be permitted to take somersault and now alleged that the 'mark-up' agreed to and charged in terms of the 'Finance Agreement' [s], is either not PAYABLE or otherwise, it is 'HARAM' . The Appellants/Judgment-debtors after passing of the Compromise Decree dated 04.06.201 1, could not be permitted to avoid and/or wriggle out of their legal obligations much-less after passing of the compromise decree'.
37. Of course, under the 'MARKED-UP PRICE SYSTEM/ PURCHASF PRICE SYSTEM' OF FINANCING. THE 'MARKED-UP PRICE/'PURCHASE PRICE', neither can be enhanced nor reduced unilaterally . If otherwise, it is done then by the Bank/Financial -Institu tion then of course, it would be deemed as not permissible under the 'INJUNCTION OF ISLAM', as well as BPD's Circulars Nos.13 and 32 of 20.06.1984 and 26.11.1984 respectively .
For reference both the SBP' s Circulars are reproduced hereinbelow:- A "STATE BANK OF PAKIST AN Banking Control Department Central Directorate Karachi.
BCD Circular No.13 20th June, 1984.
All Banks, Dear Sirs, Elimination of 'RIBA' from the Banking System .
As has been announced by the Finance Minister , it is the intention of Government that the Banking System should shift, over to Islamic modes of financing during the course of the next financial year. These modes of financing have been described in Annexure 1. This shift will take place according to the following programme.
(i) As from the 1st' July, 1984, all banking companies will be free to make finance available in any of the modes of financing listed in Annexure 1. However , as a transitional arrangement, they will also be free to lend on the basis of interest, provided that no accommodation for working capital will be provided or renewed on interest basis for a period of more than six months.
(ii) As from the 1st January , 1985, all finan ces provided by a banking company to the Federal Government, Provincial Governments, public sector corporations and public or private joint stock companies shall be only in any one of the modes indicated in Annexure I. [Emphasis and Underlining are ours].
(iii) As from the 1st April, 1985, all finances provided by a banking company to all entities, including individuals shall be on the same basis as mentioned in (ii) above.
(iv) The appropriate mode of financing to be adopted in any particular case will be settled by agreement between the banking company and the client. Some possible modes of financing for variou s transactions have been shown in Annexure II [Underlining is ours].
(v) As from the 1st July, 1985, no banking company shall accept any interest-bea ring deposits. As from that date, all deposits accepted by a banking company shall be on the basis of participation in profit and loss of the banking company , except deposits received in Current Account on which no interest or profit shall be given by the banking company .
2. The instructions contained in items (i), (ii) and (iii) above shall, however , not apply to on-lending of foreign loans which will confirme to be governed by the terms of the loans. Likewise, the instructions contained in item (v) above shall not apply to foreign currency deposits. [Emphasis supplied]
3. The above instructions are being issued under the Banking Companies Ordinance, 1962. Further instructions, where necessary , will follow . Please acknowledge receipt.
Yours, faithfully , (SIBGHA TULLAH)
Director"
ANNEXURE I Permissible Modes of Financing
(A) Financing by lending:-
(i) Loans not carrying any interest on which the banks may recover a service charge not exceeding the proportionate cost of the operation, excluding the cost of funds and provision for bad and doubtful debts. The maximum service charge permissible to each bank will be determined by the State Bank from time to time
(ii) Qard-e-Hasana loans given on compassionate ground free of any interest or service charge and repayable if and when the borrower is able to pay .
4(B) T rade-related modes of financing including the following .-
(i) Purchase of goods by banks and their sale to clients at appropriate mark-up in price on deferred payment basis.
In case of default, there should be no mark-up on mark-up. [Underlining is ours]
(ii) Purchase of trade bills
(iii) Purchase of Movable or immoveable property by the banks from their clients with Buy-Back Agreement or otherwise. [Underlining is ours].
(iv) Leasing.
(v) Hire-purchase
(vi) Financing for development of property on the basis of a development charge.
The maximum and the minimum rates of return to be derived by the Banks from these modes of financing will be as may be determined by the State Bank from time to time.
(C.) Trade-related modes of financing including: the following ,---
(i) Musharika or profit and loss sharing.
(ii) Equity participation and purchase of shares.
(iii) Purchase of participation term certificates and Modaraba Certificates.
(iv) Rent-sharing.
The maximum and minimum rates of profit to be derived by the banks from such transactions will be as may he prescribed by the State Bank from time to time. However , should any losses occur , they will have to be proportionately shared among all the financiers.
ANNEXURE - II Permissible modes of financing for V arious Transactions Nature of Business Basis of Financing I. Trade and Comments Fixed investment
(a) Commodity operations of the Federal and Provincial Governments and their agenciesMark-up in price
(b) Export Bills purchased/ negotiated under Letters of Credit (other than those under reserve).(i) Exchange Basic differential in The case of foreign currency bills.
(ii) Commission or mark- down in the case of Rupee bills.
(c) Documentary Inland Bills drawn against Letters of Credit purchased/ discounted.Mark-down in price
(d) Import Bills drawn under Letters of Credit-Mark-up in price
(e) Financing of exports under the State Bank's Export Finance Charge Scheme and The Scheme for financing Locally Manufactured Machinery .Service charge/concessional Service
(f) Other items of trade and commerceFixed investment Equity participation, P . T.
Cs. Leasing or hire- purchase Working Capital Profit and loss showing or mark up.
II. Industry Fixed investment Equity participation, P.T.Cs.
Modaraba Certificate, leasing, Hire purchase or mark-up Working Capital III. Agriculture and Fisheries Profit and loss showing or mark up.
(a) Short-term FinanceMark-up. In. the case of small farmers and small fishermen who Are at present eligible for interest free loans finances for the specified inputs etc., upto the prescribed amount may be on mark- up basis. The mark-up amount may however , be waived in the case of those who re-pay the finance within the stipulated period and payment of the mark up made by the State Bank to banks by debit to federal Government Account.
(b) Medium and long-term Finance.Leasing or hire-purchase. In Addition
(c) Tube wells and other wellsTo ownership of machinery , banks wells may create charge on the land in their favour as in the case of other loan to the Farmers under the Passbook System.
B STATE BANK OF P AKIST AN Banking Control Department Central Directorate Karachi BCD Circular No.32, 26th November , 1984.
All Banks and Development Finance Institutions .
Dear Sirs, Elimination of 'RIBA' from the Banking System Bank Charges .
Please refer to BCD Circular No. 13, dated the 20th June, 1984.
2. Vide BCD Circular No.7, dated the 28th March, 1984 bank charges except charges for home remittances, have been deregulated. The schedules of bank charges received from the banks show that the following items of bank charges are based on interest:
(i) Mark-up in the case of import bills under import letters of credit.
(ii) Mark-down in the case of documentary bills drawn against inland letters of credit.
3. The schedules also provide for levy of overdue/penal interest in case of non-re tirement/non-payment of inland cheques, bills etc., purchased.
4. In exercise of the powers vested in it under the Banking Companies Ordinance, 1962, the State Bank of Pakistan is pleased to direct that as from the 1st January , 1985, interest; wherever charged by a banking company/development finance institution in any of the items of bank charges, shall be replaced by a non-interest mode considered appropriate by it. Moreover , overdue/penal interest or mark-up on murk-up shall not be charged by a bunking company/DFI as from that date. Instead, it may take legal steps for recovery of the overdue, finance.
[Underlining is ours].
5. Please acknowledge receipt.
Yours faithfully , (SIBGHA TULLAH )
Director"
38. Manifestly , SBP's Circulars do not impose any bar on the parties who 'wish' to enter into any 'fresh Finance Agreement' on 'fresh terms' and 'conditions' out of their own's 'free-will' and 'wish'. THE 'CIRCULARS OF SBP', it is needless to say, are 'NOTIFICA TIONS' having been issued under the powers derived from the State Bank of Pakistan Act/Banking Companies Ordinance, 1962 and of course, the SBP's Circulars have the force of law. The SBP's circulars, however , cannot be termed as 'LEGISLA TIVE INSTRUMENTS ' of the nature which, otherwise, could curtail the accrued/being accrued vested rights', if available under F.I.O., 2001. The SBP's circulars, otherwise, also cannot override the provisions of law. In this regard. reliance can be placed on the case of Hala Spinning Mills Ltd. v. International Finance Corporation [2002 SCMR 450], wherein, it was observed as follows: "27. Learned counsel contended that the winding-up petition against appellant was premature in view, of Circular No. 19 (Banking Policy and Regulation Department) because under the Scheme introduced through this Circular appellant had an opportunity to settle its outstanding dues with interference of State Bank of Pakistan, therefore, for this reason the process of winding up of the company was liable to be deferred for a considerable time. Suffice it to observe that conditions of Circular No. 19 legally cannot be considered a document to override the provisions of section 305 of the Ordinance and on account of issuance of Scheme under the Circular the proceedings under section 305 of the Ordinance initiated by respondent-Corporation (IFC) against the appellant were not liable to be postponed". [Underlining is ours].
39. Per section 4 of F.I.O., 2001, the provisions of F.I.O., 2001 overrides other laws if anything is found therein as inconsistent. Being this is the position, the provisions of F.I.O., 2001, not only require strict compliance but also a full effect thereto needs to be given. As far as, BPD's Circulars Nos. 13 and 32 of SBP are concerned, the same circulars as being a product of 'subordinate legislature', in no events, over-ride the provisions of F.I.O., 2001. The 'customers' of Banks/Financial institutions indeed are duty bound to fulfill their obligations and duties , imposed by F.I.O., 2001 [XLVI of 2001]. Regarding repayment of finance or payment of any other amounts relating to the finance or performance of an undertaking or fulfillment of a promise and all duties imposed on the customer under F.I.O., 2001, section 2(e) of F.I.O., 2001 [Ordinance No.XL VI of 2001] is very much relevant, therefore, for ready reference the same is reproduced hereinbelow:- "2. Definitions.- In this Ordinance, unless there is anything repugnant in the subject or context- (a).....
(b)..... .....
(d).....
(e) obligation includes
(i) any agreement for the repayment or extension of time in repayment of a finance or for its restructuring or renewal or for payment or extension of time in payment of any other amounts relating to a finance or liquidated damages; and
(ii) any and all representations, warranties and covenants made by or on behalf of the customer to a .financial institution at any stage, including repre sentations, warranties and covenants with regard to the ownership, mortgage, pledge, hypothecation or assignment of other charge on assets or prope rties or repayment of a finance or payment of any other amounts relating to a finance or performance of an undertaking or fulfillment of a promise ; and
(iii) all duties imposed on the customer under this Ordinance: and [Underlining is ours].
(f) .......
40. The two Appellants/Judgment-debtors and one stranger/ Respondent No.3, in the case in hand, have challenged the Compromise Decree dated 04.06.201 1 on the ground of so-called 'fraud and 'mis-representation' having been committed about 6/7 years back i.e. since, the year, 2006. All the pleas now raised, indeed, were available to the Appellants/Judgment-debtors much before the filing of Bank's Suit No.274 of 2010 . According to the Appellants' version, the Decree-holder is committing fraud since, the year, 2006. Throughout, in the Application under Order XLVII, Rule 1 read with section 151, C.P.C. read with section 12(2), C.P.C., the Appellants did not allege any 'fraud' or 'mis-representation' that is to say, during the Court's proceedings. This being the position, the alleged 'fraud and mis-representation' do not fall within the scope of section 12(2), C.P.C. Moreover , the facts in the background show that the Appellants/Judgment-debtors have sealed their fate by way of passing and/or not challenging the Compromise Decree dated 04.06.201 1 within the stipulated period of 30 days, as provided under section 22 of 2001.
41. Ex-facie, the two Appellants/Judgment-debtors and one Intervener are in a drill to linger on the Executing Proceedings, initiated by the Decree-holder Bank in the year, 2012, for the enforcement of the Compromise Decree dated 04.06.201 1 by way of filing Ex.No.138 of 2012 , otherwise, the Judgment-debtors/Appellants have no cause/locus standi to re-open the 'past' and 'closed' transaction by alleging 'fraud' and `mis-representation' without giving details and particulars of the so-called 'fraud' and 'mis-representation'. In this regard, paras 9 and 10 of the Application under Order XLVII, Rule 1 read with section 151, C.P.C. read with section 12(2), C.P.C., being relevant, are reproduced herein-below:
9. No doubt, the defendants/applicants had badly failed to deposit even a single penny after impugned order and the decree except pay order of Rs.50 0,000/-, result thereof, the plaints/respondent started the Execution Proceedings against the defendants/applicant, bearing Execution Application No.138 of 2012 , pending before this Hon'ble Court, hence, this stage of the above noted suit and this application. Due to misrepresentation, fraud, tension, harassment and the undue influence created by the plaintiff/respondent and the de stabilize business conditions in the country markets, the defendants/ applicants had no any other option to re schedule the so called liabilities towards plaintiff/respondent bank therefore, for such purpose, the defendants/applicants sorted out the accounts of the defendant/applicant No. 01 since 2006 till the filing of the above noted suit by the plaintiff/respondent . Whatever , the transaction had made between the plaintiff/respondent and the defendants/ applicants.
10. The sorting out of accounts gave a horrible figures and facts to the defendants/applicants, by width, there wasn't any doubt that the plaintiff/respondent since 2006 has been playing fraud with the defendants/applicants and by keeping in misrepresentation not only have taken huge and bulk amount defendants/applicants, so also, by approach and misrepresentation has taken impugned order and the compromise decree from this Hon'ble court against the defendants/applicants . [Emphasis supplied].
42. In view of the above, we are of the view that the case of the Appellants/Judgment-debtors does not fall within the scope of section 12(2), C.P.C. Of course, the scope of section 12(2), C.P.C. cannot be extended so as to bring within its' ambit the 'fraud' and 'mis-representation' that never happened during the course of proceedings.
43. On the aforesaid aspect of the matter , reliance can be placed on the case of Sain v. Government of N.-W .F.P. through Secretary , Auqaf and 2 others [2005 SCMR 1848 ], wherein, it was held as follows:
4. We having heard the learned counsel for the petitioner at length and also perused the record with his assistance, find that neither any fraud was committed in respect of the proceedings before the Tribunal or in appeal before the High Court nor the judgments were, obtained through mis-representation . The question of title of the property , subject-matter of dispute, was decided on the basis of evidence brought on record and the petitioner , despite having the knowledge of the character of property and the attestation of mutation and also the subsequent entries in the Revenue Record, did not raise such an objection to challenge the genuineness of mutation or correctness of the entries made in the Revenue Record on the basis of said mutation at any stage . The plea of misrepresentation taken in application under section 12(2), C.P.C. is not supported by any direct or circumstantial evidence and the learned counsel for the petitioner has also not been able to show us from record any material suggesting misrepresentation before T ribunal or in the High Court. [Emphasis supplied].
44. A relief under section 12(2), C.P.C., it is needless to say, can only be sought if a Judgment or Decree is obtained by playing 'fraud' or 'misrepresentation ' upon the Court or otherwise, it is/was found bad for want of jurisdiction. In the case in hand, it is not the case of Judgment -debtors/Appellants that either any 'fraud' or 'mis- representation ' was played upon the Court during pendency of the Bank's suit and/or at the time of passing a consent order dated 19.05.201 1 and compromise decree dated 04.06.201 1. Rather , it is the case of Judgment- debtors/Appellants that the Respondent Bank had played 'fraud' and 'mis-representation' since, 2006 vis-a-vis, charging Mark-up over Mark-up in respect of facilities granted to and availed/re-scheduled upon execution of finance agreement/re-scheduled finance agreements[s]. Be that as it may, no relief on the basis of such allegations can be granted under section 12(2), C.P .C. in favour of the Appellants/Judgment-debtors.
45. As far as the case law i.e. 2010 SCMR 780, cited at bar by Mr. Shah Faisal Qureshi, learned counsel for the Appellants is concerned, the same besides, irrelevant is distinguishable under the facts and circumstances of the case.
46. What emerges, from the above discussion is that, the 'Impugned Order' dated 20.11.2013 , besides being proper , valid, has been passed quite in accordance with law, as such, does not call for any interference by this Court.
47. In view of the aforesaid discussion, we are of the considered opinion that the instant 1st Appeal besides, not maintainable, is devoid of any merits, as such, the same is hereby DISMISSED along with the pending applications, however , with no order as to costs.
Appeal dismissed