JAWAD HASSAN, J. Through the instant Appeal, filed under Section 22 of the Financial Institutions (Recovery of Finances) Ordinance, 2001 (the "Ordinance" ), the Appellants seek to set-aside order dated 06.05.2019 (the "impugned order" ) passed by the Judge Banking Court No.II, Multan (the "Banking Court" ) being the Executing Court whereby application filed the Appellants for correction of mortgaged property was dismissed.
2. The relevant facts as mentioned in the appeal are that a suit for recovery of Rs.84,01,146/- was filed by the Respondent against the Appellants before the Banking Court which was decreed vide judgment and decree dated 04.12.2017 to the tune of Rs.78,20,713.02 in favour of the Respondent. The said judgment and decree was challenged by the Appellants through R.F.A.No.70 of 2018 which was dismissed vide order dated 09.04.2019.
During the proceedings of execution, the Appellants moved an application for correction of mortgaged property , which was dismissed vide the impugned order . Hence this appeal.
3. Learned counsel for the Appellants inter alia submitted that the Banking Court has not taken into consideration the true facts and circumstances of the case while dismissing their application; that the impugned order is against law and facts; that the Banking Court has failed to appreciate the fact that the Respondent did not place on record any document with regard to registered and equitable mortgaged deed as equitable mortgage is not related to any mortgage clause and that too no particulars of property/title deed were mentioned; that the Banking Court has also ignored that only 2 kanal land of the Appellants was mortgaged with the Responde nt while property measuring 1-K 13-M-4 1/2 sqft owned by the Appellant No.2 has no nexus with the execution as such it cannot be put into auction by the Banking Court.
4. On the other hand, learned counsel for the Respondent Bank supported the impugned order and submitted that it has been passed strictly in accordance with law and does not require any interference by this Court.
5. We have heard the arguments and perused the record.
6. The perusal of record reveals that undeniably the judgment and decree was passed by the Banking Court against the Appellants on 04.12.2017 which was challenged by them through appeal bearing R.F.A.No.70 of 2018, which was dismissed on 09.04.2019. Thereafter , the Banking Court being the executing Court proceeded to execute judgment and decree passed by it. The sole ground agitated by the Appellants is that the Banking Court while executing the judgment and decree put into auction the land measuring 3.65 Kanals out of which 1-kanal 13- M 4 1/2 was never mortgaged either by mortgage deed or equitable mortgage by the Appellant No.2 and as such it cannot be included and executed in execution without any support of documentary proof. It is also alleged by the Appellants that the mortgaged properties are not mentioned in the Memorandum of Deposit of Title Deeds as such their properties cannot be mortgaged on this basis.
7. The basic controversy revolves around the process of execution of decree passed by the Banking Court against which the appeal of the present Appellants was dismissed by this Court, on the point that inclusion of property measuring 1-K 13-M-4 1/2 owned by the Appellant No.2 into the auction process by the Banking Court was beyond the scope of decree since regarding the said property neither deed of mortgage nor equitable mortgage was executed by the Appellants in favor of the Respondent. Before dilating upon the facts of the instant appeal and analyzing the legality of the execution process undertaken by the Banking Court, it is deemed appropriate to take a quick glance on the purpose and object of the "Ordinance" and mode of execution provided thereunder .
8. The Ordinance was promulgated with an aim to streamline and expedite financial disputes between a financial institution and its customer and separat e independent forum of Banking Court was also established under the Ordinance to achieve the goal of speedy decisions. A decision, howsoever , promptly pronounced by the Banking Court will remain dangling in the midst unless it is also executed in a timely manner . The Ordinance, being a special law to resolve the disputes concerning financial institutions and its customers, provides specific mechanism for execution of decree with, or in some instances, without the intervention of Banking Court. Section 19 of the Ordinance provides the mechanism for execution of decree. The provision empowers the Court to adopt any mode for execution including the one provided under Code of Civil Procedure, 1908; any other mode of execution available under any other law for the time being in force or in any other mann er the Banking Court consider appropriate. The purpose behind vesting such extensive and flexible authority in the Banking Court was to secure the purposes of the legislation i.e., resolution of financial disputes in swift and time efficient manner . Although the Banking Court has been given a choice in choosing the manner of execution after considering its efficacy and appropriateness in the matter yet despite adopting the mode of execution provided under the Code of Civil Procedure, 1908 the Banking Court under sub-section (7) of the Section ibid., is required to follow summary procedure for the purposes of investigatin g claims and objections in respect of attachment or sale of any property , whether mortgaged or not, pledged or hypothecated; and is bound to complete such investigation within 30 days of its filing. The only restriction imposed upon the Banking Court regarding the mode of execution is that, once it decided to proceed under a particular law and manner provided under that law, it cannot change the same thereafter and have to follow the manner provided under the very law and not otherwise.
9. The Hon'ble Supreme Court of Pakistan while deciding the review petition in the case of "Muhammad Attique Versus Jamil Limited and others" ( 2015 SCMR 148 ) held as follows:-- "Suit on behalf of a customer or a financial 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 un-avoidable, 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.'', Similarly , the Honorable Supreme Court in "Mst. NADIA MALIK v. Messrs MAKKI CHEMICAL INDUSTRIES PVT.
LTD. through Chief Executive and others" (2011 CLD 1517 ), expounded the scope of Section 19(2) of the Ordinance and observed that "the aforesaid subsection stipulates three modes authorizing the banking court to execute its decree. The first mode empowers a banking court to execute a decre e 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 request of the decree-holder , a banking court may adopt any procedure for execution of a decree which it deems appropriate.
In "MUHAMMAD ATTIQUE Versus JAMI LIMITED and others" (PLD 2010 Suprem e Court 993), the Honorable Supreme Court while examining the nature and scope of Section 19(2) of the Ordinance held that "we would like to observe here that in terms of section 19(2) of Financial Institution Recovery 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."
Full Bench of this Court in "MUHAMMAD BARAN KHAN Versus JUDGE BANKING COUR T NO. III, MUL TAN and another" (PLJ 2016 Lahore 317) made a detailed and comprehensive examination of the scope, powers and modes available to a Banking Court for execution of its decree and summed up as follows:- 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 mention ed modes for executing decree under the Financial Institution (Recovery of Finances) Ordinance, 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 , non-compliance 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.
10. Now adverting to the other aspect of the controversy , which is relating to the process of 'execution of decree' by Banking Court and literal interpretation of the term 'execution' which is relevant for understanding the nature and scope of the process. According to Tax Law Dictionary by LexisNexis 2016 Edition page 314, the term 'execute' is defined as:-'The word 'execute' means to make; to complete; to perform; to sign, to do; to follow out; to fulfil the command or purpose of'. Whereas as per the Black' s Law Dictionary , Tenth Edition page. 689, execution is defined as "The act of carrying out or putting into effect (as a court order or a securities transaction) execution of the court' s decree. Judicial enforcement of a money judgment, usu. by seizing and selling the judgment debtor 's property ..."
11. Speaking generally , execution is the enforcement of a decree by a judicial process which enables the decree holder to realize the fruits of the decree and judgment passed by the competent Court in his favor .
12. Section 19 of the Ordinance deals with execution of decree of Banking Court and chalked out instances when execution can be carried out by the Bank itself without intervention of the Court and the circumstances wherein execution is carried out by the Court. A decree of the Court is a mere declaration of right unless through the process of execution such determination is transformed into actual realization. Without execution, a decree is an expression of recognition of right of relief, however , when the same gets executed through the process of law, it then culminates into attainment of dispens ation of justice in actual and palpable terms. Perhaps that is why, when a decree is executed successfully , it is called satisfaction of decree.
13. Under the Ordinance, in a case where execution of decree is not undertaken by the financial institution itself and sought its execution through the intervention of the Court, then in such a situa tion the Court, which passed the decree is transformed into a Court of execution fully equipped and empowered to adopt any mode for the purposes of execution as provided under Section 19 of the Ordinance with the sole purpose and object to get the decree fully satisfied. Satisfaction of the decree under execution is the ultimate thing and target chalked out for an executing Court by the law that is why under the Ordinance different modes for the executio n of decree are provided for the Court, so that it never runs short from legislative support to expeditiously satisfy the decree.
14. In the case in hand, the Banking Court, while executing the decree, which has attained finality upto this Court was even otherwise competent to take measures for full satisfaction of the decree and from that very standpoint, even the impugned order was valid, justified and appropriate.
15. There is another aspect of the matter , which also requires attention. It is evident from the record that alongwith mortgaging his property in favor of the respondent Bank, the Appellants also executed equitable mortgage in favor of the respondent regarding registered Tamleek No.854 dated 16-04-2012 and the same fact was duly mentioned by the respondents in paragraph no. 7 of their plaint which was not categorically denied by the present Appellants as only evasive denial of the whole claim was put forth in leave to defend. According to Tax Law Dictionary by LexisNexis 2016 Edition page 302 , equitable mortgage is defined as follows:- Equitable mortgage . 'Courts of equity are not governed by the same principles as Courts of law in determining whether a mortgage has been created, and generally , whenever a transaction resolves itself into a security , or an offer or attempt to pledge land as security for a debtor liability , equity will treat is as a mortgage, without regard to the form it may assume, or the name the parties may choose to give it.'
Whereas in CORPUS JURIS SECUNDUM Volume 59, page 32, equitable mortgage is defined as 'an "equitable mortgage" is a lien upon property to secur e payment of money that lacks the essen tial features of a legal mortgage, either because it grows out of a transactio n between the parties without any deed or express contract to give a lien or because the instrument used for that purpose is lacking some of the characteristics of a common-law mortgage' .
The Honorable Supreme Court in "NATIONAL BANK OF PAKIST AN through Attorney and another Versus PARADISE TRADING COMP ANY and others" (2015 SCMR 319) summed up the requirements for creation of an equitable mortgage by holding that "the requirement of law, for creation of a mortgage by deposit of title deeds are
(i) existence of debt (ii) delivery of docum ents of title and (iii) intention that the documents of title shall be security for the debt."
16. It is evidently clear that an equitab le mortgage stand created despite lapse of codified formalities, if the essential ingredients are met with i.e., existence of debt, delivery of title, intention that the same be accepted and retained as security for the debt so secured. In the instant case, all three requirements are in affirmative and perusal of impugned order also reflects that the learned Banking Court dismissed the application of the Appellants for correction of while giving considerabl e weightage to the point of execution of equitable mortgage in favor of Respondent and mere evasive denial to said assertion by the Appellants in their leave to defend.
17. With respect to the contention of the Appellants that the mortgaged properties are not mentioned in the Memorandum of Deposit of Title Deeds as such their properties cannot be mortgaged on this basis, it is observed that these grounds have never been agitated by the Appellants before the Banking Court while filing leave to defend and also before this Court at the time of challenging the judgment and decree dated 09.04.2019. The issue raised through the application filed by the Appellants has been specifically dealt with by the Banking Court in concluding paragraph of the impugned order . It is also evident from the record that at the time of availing finance facilities, three properties were mortgaged by the Appellants out of which one property was redeemed by the Respondent upon payment by the Appellants through an undertaking on stamp paper on 25.09.2012 while to the extent of two properties i.e. land measuring 2-kanals and 1-kanal 13-M 4 1/2, sqft (also mentioned in Evaluation Report), the Banking Court proceeded to execute the judgment and decree. As such, at this juncture the Appellants cannot agitate the matter which already has attained finality . The Banking Court has rightly held that there is no need to correct the present order for which this application has been filed.
18. We agree with the findings of the Banking Court which rightly dismissed the application filed by the Appellants and do not see any illegality or perversity in the impugned order which has been passed strictly in accordance with law, as such does not warrant any interference by us.
19. In the circumstances presented hereinabove, this appeal being devoid of any merit, is hereby dismissed .