1. ' This office reference raises the question whether execution application filed after 1-4-1979 in respect of decree passed by the High Court relating to the subject-matter falling within the jurisdiction of the Special Court be returned for presentation to the proper Court ?
2. ' Before dealing with this question it is necessary to examine the relevant provisions of the Banking Companies (Recovery of Loans) Ordinance, 1979 (hereinafter referred to as the Ordinance) which came into force on 1-4-1979 as notified by Gazette Notification dated 28-3-1979 issued by the Federal Government. Section 2 (1) defined Special Court as established under section 5 which provided that the Federal Government may by notification establish Special Courts. Section 6 enumerates its powers and jurisdiction. It also excludes the jurisdiction of other courts in respect of any matter, to which the jurisdiction of a Special Court extends. Sections 5 and 6 are reproduced as follows :-
5. Establishment of Special Courts.-(1) The Federal Government may by notification in the official Gazette, establish as many Special Courts as it considers necessary, and where it establishes more than one Special Court, shall specify in the notification the territorial limits within which each one of them shall exercise jurisdiction under this Ordinance. A Special Court shall consist of a person who is a District Judge.
6. Powers of Special Court.-(1) A Special Court shall -
(a) in the exercise of its civil jurisdiction have, in respect of claim filed by a banking company against a borrower or by a borrower against a banking company in respect of, or arising out of, a loan all the powers vested in a civil court under the Code of Civil Procedure, 1908 (Act- V of 1908) ;
(b) in the exercise of its criminal jurisdiction, try the offences punishable under this Ordinance and shall, for that purpose, have the same powers as are vested in the Court of Assistant Sessions Judge under the Code of Criminal Procedure, 1898 (Act V of 1898) : ' Provided that, for the purpose of a trial before a Special Court, the provisions of Chapter XVIII of the said Code shall not apply : ' Provided further that a Special Court shall not take cognizance of any offence punishable under this Ordinance except upon complaint in writing made by a person authorized in this behalf by the banking company in respect of which the offence was committed ; and
(c) exercise and perform such other powers and functions as are, or may be, conferred upon, or assigned to it by or under this Ordinance.
(2) Notwithstanding anything contained in subsection ()1, a Special Court shall have no civil jurisdiction in a case in which-
(a) the outstanding amount of the loan does not exceed one lac rupees ;
(b) arbitration proceedings in respect of the loan are pending before an arbitrator ; or
(c) the loan was sanctioned under an agreement between the banking company and the borrower which provides for a dispute between the parties being referred to arbitration.
(3) All proceedings before a Special Court shall be deemed to be judicial proceedings within the meaning of sections 193 and 288 of the Pakistan Penal Code (XLV of 1860) and the Special Court shall be deemed to be a Court for the purposes of sections 480 and 482 of the Code of Criminal Procedure, 1898 Act (V of 1898).
(4) No Court other than a Special Court shall have or exercise any jurisdiction with respect to any matter to which the jurisdiction of Special Court extends under this Ordinance, including a decision to the existence or otherwise of a loan and the execution of a decree passed by a Special Court ; and all proceedings, including proceedings following the filing of an arbitration award and proceedings for the execution of a decree within the jurisdiction of a Special Court, by whatever Court passed, which may be pending in any Court immediately before the commencing day shall stand transferred to the Special Court.
(5) In respect of proceedings transferred to a Special Court by virtue of subsection (4) the said Court shall not, by reason of the said transfer, be bound to recall and rehear any witness who has given evidence before the transfer for and may act on the evidence already recorded by or produced before the Court from which the proceedings are so transferred.
3. ' The first amendment in the Ordinance was made by Banking Companies (Recovery of Loans)
4. (Amendment) Ordinance, 1980 (Ordinance LX of 1980) but it is not relevant for the present controversy. By Banking Companies (Recovery of Loans) (Amendment) Ordinance, 1983 (Ordinance Xi of 1983) the Ordinance has been again amended. Section 5 has been deleted and a new definition of Special Court specifying the extent of its jurisdiction has been substituted for section 2 (f) of the Ordinance. Amendments in section 6 have been made and new section 6-A has been added. These provisions as they exist now are as follows :- ' Section 2 (f) "Special Court" means-
(i) in respect of a case in which the outstanding amount of the loan does not exceed one million rupees or the trial of offences punishable under this Ordinance, a person who is or has been a District Judge or an Additional District Judge and is appointed by the Federal Government, by notification in the official Gazette, to be a Special Court to exercise jurisdiction within such territorial limits as may be specified in the notification and, in the absence of such appointment, the District Court ; and
(ii) in respect of any other case, the High Court in the exercise of original civil jurisdiction : Section 5. Deleted. Section 6.
5. (a)In the exercise of its civil jurisdiction, have, in respect of a claim filed by a banking company against a borrower or by a borrower against a banking company in respect of, or arising out of, a loan, all the powers vested in a Civil Court under the Code of Civil Procedure, 1908 (Act V of 1908) ; (b)in the exercise of its criminal jurisdiction, try the offence punishable under this Ordinance and shall for that purpose, have the same power as are vested in the Court of Session under the Code of Criminal Procedure, 1898 (Act V of 1898) : ' Provided that a Special Court shall not take cognizance of any offence punishable under this Ordinance except upon a complaint in writing made by a person authorised in this behalf by the banking company in respect of which the offence was committed ; and
(c) exercise and perform such other powers and functions as are, or may be, conferred upon, or assigned to it by or under this Ordinance.
6. ' Notwithstanding anything contained in subsection (1) a Special Court shall have no Civil Jurisdiction in a case in which- (b)arbitration proceedings in respect of the loan are pending before an arbitrator, or
(c) the loan was sanctioned under an agreement between the banking company and the borrower which provides for a dispute between the parties being referred to arbitration.
7. ' All proceedings before a Special Court shall be deemed to be judicial proceedings within the meaning of sections 193 and 288 of the Pakistan Penal Code (Act XLV of 1860) and the Special Court shall be deemed to be a court for the purposes of section 480 and 482 of the Code of Criminal Procedure, 1898 (Act V of 1898).
8. ' No Court other than a Special Court shall have or exercise any jurisdiction with respect to any matter to which the jurisdiction of a Special Court extends under this Ordinance, including a decision as to the existence or otherwise of a loan and the execution of a decree passed by a Special Court and all proceedings, including proceedings following the filing of an arbitration award and proceedings for the execution of a decree within the jurisdiction of a Special Court, by whatever court passed, which may be pending in any court immediately before the commencing day shall stand transferred to the Special Court : "Provided that nothing in this subsection shall be deemed to affect-
(a) the right of a banking company to seek any remedy before any court that may be available under the law by which the banking company may have been established or under that law as amended from time to time, or
(b) the jurisdiction of any court such as is referred 10 in clause (a) or to require the transfer to a Special Court of any proceedings pending before any such court immediately before the commencing day. Section 6-A.-Extension of limitation.-A suit for the recovery of a loan other than a loan referred to in section 4 may be entertained by a Special Court within two years of the expiration of the period of limitation applicable to such suit if the Special Court is satisfied that the banking company filing the suit had sufficient cause for not filing it within the said period.
9. ' Section 12 provides for appeal and section 13 deals with the pending cases which reads as follows :- Section 13. Pending cases and appeals.-Notwithstanding anything contained in section 12,-
(a) any case pending at the commencement of this Ordinance before a High Court in the exercise of its original jurisdiction shall continue to be heard, and shall be decided, by the High Court ;
(b) any appeal pending before the Supreme Court or a High Court at the commencement of this Ordinance from an order which disposes of the entire case shall continue to be heard, and shall be decided, by the Supreme Court or, as the case may be, the High Court ;
(c) any appeal pending before the Supreme Court or a High Court at the commencement of this Ordinance from an interlocutory order which does not dispose of the entire case shall stand transferred to the Special Court, and
(d) Any appeal on any of the grounds specified in subsection (2) of section 12 which is from an order which disposes of this entire case and which may be pending before a District Judge at the commencement of this Ordinance shall stand transferred to the High Court.
10. ' Before the amending Ordinance (Ord. XI of 1983) which came into force on 30-1-1983 a Special Court was to exercise its jurisdiction in respect of loan exceeding one lac rupees. After the amendment this provision has been materially altered. Under section 2 (f) the Federal Government may by notification in the official Gazette appoint a person who is or has been a Districit Judge or Additional District Judge to be a Special Court and in the absence of such appointment the District Court shall act as Special Court. It further provides that the jurisdiction of the Special Court shall be in respect of loans not exceeding one million rupees. In respect of any other case the jurisdiction shall be exercised by the High Court in the exercise of Original Civil Jurisdiction. The District Judge or Additional District Judge as notified or in the absence of notification the District Court will have pecuniary jurisdiction of in respect of outstanding loans not exceeding one million rupees and all other matters will be tried by the High Court.
11. ' Section 6 (4) of the Ordinance confers vast powers on the Special Court and simultaneously excludes the jurisdiction of other courts in matters to which the jurisdiction of the Special Court extends. The words 'a Special Court shall have or exercise any jurisdiction with respect to any matter to which the jurisdiction of a Special Court extends" confer wide powers extending to all and every proceedings which may relate to or arise out of the matters which fall within the jurisdiction of a Special Court. The object of the Legislature seems to vest a Special Court with all powers relating to any proceeding in matters to which its jurisdiction extends. This provision further clarifies and widens the extent of jurisdiction by providing that the jurisdiction conferred on a Special Court shall include the determination of the existence or non-existence of loan, execution of a decree passed by a Special Court and the proceedings for execution of the decree passed by any Court in respect of matters within the jurisdiction of a Special Court which is pending. Thus a Special Court hassthe power not only to execute the decree passed by it but even to proceed determine and decide the pending, execution proceedings in respect of matters in which decree has been passed by any court which fall within its ambit. As the pending execution proceedings can be tried by Special Court by necessary implication the Special Court will have the jurisdiction to execute the decree passed by any Court in respect of subject-matter falling within the jurisdiction of a Special Court. In view of such wide and clear jurisdiction conferred on a Special Court it cannot be successfully contended that the decree pissed by the High Court in respect of matters to which the jurisdiction of the Special Court extends can be executed by the High Court.
12. The question now arises is whether in view of section 13 (a) the High Court can proceed with the pending execution application relating to the C matter to which the jurisdiction of a Special Court extends. In this regard reference is made to section 6 (4) which provides that such execution application shall stand transferred to the Special Court. Attempt has been made to argue that there is a conflict between section 6 (4) and section 13 (a) which provides that the cases pending before the High Court in exercise of its original jurisdiction shall be tried by the High Court. Section 6
(4) contemplates transfer of pending execution applications to a Special Court whereas section 13
(a) provides that the cases pending before the High Court in exercise of its original jurisdiction shall be tried by the High Court. It is a well-settled rule of interpretation that a harmoneous construction has to be placed to different provisions of the same enactment. Therefore the pending execution applications, by operation of law, stand transferred to the Special Court, but the suits and other proceedings which are pending before g the High Court in exercise of its original jurisdiction shall continue to be heard and decided by the High Court.
13. ' In Ex. Application No, 109/81 the question for consideration was whether an execution application for executing a decree passed by a High Court in respect of matter within the jurisdiction of the Special Court can be filed before the Special Court and the answer was in the affirmative.
14. Observation was also made to the effect that "if an execution application were pending in the High Court when the 1979 Ordinance was enact d, such execution application would continue to be heard and then decided by the High Court by virtue of section 13(a) of the 1979 Ordinance". This observation seems to have been passingly made as this question was neither under consideration nor it was argued.
15. ' Mr. Chundrigar, the learned counsel for one of the decree-holders has contended that in view of section 37, C. P. C. The execution applications should be decided by the High Court. Section 37, C. R.
16. C. Provides as follows :-
37. Definition of Court which passed a decree.-The expression "Court which passed a decree" or words to that effect, shall in relation to the execution of decrees unless there is any thing repugnant in the subject or context, be deemed to include,-
(a) where the decree to be executed has been passed in the exercise of appellate jurisdiction, the Court of first instance, and (0 where the Court of First intance has ceased to exist or to have jurisdiction to execute it, the Court which, if the suit wherein the decree was passed was instituted at the time of making the application for the execution of the decree, would have jurisdiction to try such suit ' It has been contended that the Court which passed the decree, or where the suit bad been instituted will have the jurisdiction to execute the decree and therefore the execution application in respect of decree passed by the High Court can be competently filed in this Court .
17. ' Section 37 lays down the rules to facilitate the execution of decree. Generally a Court which passed the decree has the jurisdiction to execute it Mr. Chundrigar has referred to Merla Ramona v.
18. Nallaparajee (i) where it was held that "the Court which actually passed the decree does not lose its jurisdiction to execute it, by reason Of the subject matter thereof being trans. Ferred to the jurisdiction of another court" Reference was also made to {{FOOT NOTE}} (1)PLD 1956 S-C (101) 220 {{FOOT NOTE}} Abdul Sattar v. Mohini Mohan Das (1) and Suryanareyan Agarwalla v. Mahesh war Keet (2) where it was ruled that the Court does not cease to exist by the pecuniary limits of its jurisdiction being altered and where once the court has jurisdiction to entertain a suit it does not ordinarily loses its jurisdiction by reason of subsequent events. In Raghunandan Singh v. Narain Das (3) while following the above view it was observed that "an examination of section 37, C. P. C. Will show that, another Court will have jurisdiction only if the Court of first instance has no jurisdiction to execute it."
19. In the present case the principles enunciated by these decisions are not applicable for the simple reason that Code of Civil Procedure is a genera act relating to the procedure of the Courts of Civil judicature. Where a special law has been enacted specifically in respect of a subject-matter and special Court has been established to try such matters excluding the jurisdiction of all the Courts the provision of such special law shall prevail over the general law.
20. ' This is not a case where only pecuniary jurisdiction has been altered by the Ordinance. It also bars the jurisdiction of other Courts and pending execution applications stand transferred to the Special Court. Where the pecuniary limits of a Court which passed a decree is altered or decree is transferred to another Court then the Court which passed the decree will have the jurisdiction to execute it provided its jurisdiction to execute is not taken away. Section 6(4) of the Ordinance not only transfers the proceedings for execution of the decree in respect of matters within the jurisdiction of a Special Court passe] by any Court which may be pending but simultaneously ousts the jurisdiction of' the Court which passed the decree to execute it. In these circumstances section 37, C. P. C. Cannot be pressed a in service to continue with such pending proceedings for execution of a decree nor can fresh proceedings for execution of decree relating to the matter falling within tbe jurisdiction of Special Court can be filed in this Court.
21. ' Mr. Nizam Ahmed the learned counsel for the decree holder in gene of the execution applications has contended that in view of section 3 of the/ Ordinance the provisions of the Ordinance are in addition to and not in derogation of any other law for the time being in force and hence section 37, C. P. C. Can be applied. Section 3 reads as follows :-
3. Ordinance not to derogate from other laws.-The provisions of this Ordinance shall be in addition to and, save as hereinafter expressly provided not in derogation of any other law for the time being in force.
22. A perusal of section 3 makes it clear that if there is any express provision in the Ordinance which is in conflict with any other law then such provisioni of the Ordinance will prevail. As section 6(4) expressly bars the jurisdiction of the Court section 3 can be of no help in such cases.
23. ' Mr. Chundrigar has contended that where a different forum is provided but is not established, the parties will be entitled to file application for execution before the original forum. To appreciate, this argument it is necessary to advert to certain facts. The Ordinance was enforced from first April, 1979 and thereafter the Special Courts were to be established by notification to be issued by the Federal Government. The first notification was issued by the Federal Government on 3rd May, 1979 establishing Special {{FOOT NOTE}}
(1) AIR 1933 Cal. 684 (2) AIR 1950 Assam 115 (1) AIR 1960 All. 730 {{FOOT NOTE}} Court for the province of Sind consisting of Mr. Ali Nawaz Budhani (now Mr. Justice All Nawaz Budhani). This Notification was superseded and a Notification dated 6-6-1979 was issued which established Special Court consisting of Mr. A. V. Akhund. Again Notification dated 6-6-1979 was superseded by a notification dated 6-8-1979 and Special Court consisting of Mr. Ahmed Ali U.
24. Qureshi was established for the Province of Sind. Mr. Chundrigar has contended that Mr. Ali Nawaz Budhani did not take charge and the Special Court remained vacant. After that the persons appointed subsequently were not qualified to be appointed as a Special Court. This argument is based on section 5, sub-clause (2) which provided that "Special Court shall consist of person who is a District Judge". It may be noted that Mr. Ali Nawaz Budhani, Mr. A. V. Akhund and Mr. Ahmed Ali U. Qureshi were appointed as District and Sessions Judges (Grade 19) on 14-10-1971, 3-12-1969 and 31-7-1972 respectively. The dates are mentioned in the Government of Sind Civil List Part-II. At the time when Notifications establishing the Special Court were issued all of them were District and Sessions Judges. It has not been substantiated by any material on record that after its establishment the Special Court remained vacant.
25. ' Mr. Chundrigar has referred to Amin Cotton Co. v. Karachi Cotton Association Ltd. (1) where after considering several authorities the following observation has been made In my opinion, the ratio decidendi of the judgment of Mr. Justice Munir is that when rights created by a statute are required by that statute to be adjudicated only by a tribunal to be set up under that statute, then the Civil Courts have no jurisdiction to grant relief. But where, as in the case under appeal, a statute confers exclusive jurisdiction on a tribunal for determining claims in respect of common law rights, then the jurisdiction of the Courts will not be excluded until the tribunal required by the statute is set up."
26. I am in respectful agreement with the aforestated observation. The decree holder's right to execute the decree passed by the High Court is not a creation of the Ordinance and therefore the ouster of jurisdiction of the High Court will be effective only from the date the Special Court was set up. In the present case the. Special Court was set up on 3-5-1979 and therefore the bar provided under section 6(4) of the Ordinance will be effective from that date.
27. ' In Execution No, 85/81 I. D. B. P. v. National Steel Mills Ltd. Mr. Asghar Hussain Ansari has contended that in a Mortgage suit where a final decree has been passed the suit shall remain pending till such time the decree is satisfied because if the decree is not satisfied from the mortgaged property the decree holder will be entitled to apply for a decree for the balance amount. Reference has been made to AIR 1933 Mad. 55 and AIR 1930 All 841. The contention seems to be correct, but in view of the amendment made in the Ordinance. Industrial Development Bank will b entitled to avail the remedy provided under the statute under which it ha been established. For this reason the execution application filed by it can be tried by the High Court. However the Execution Application filed by a decree holder not covered by the provision to section 6(4) in respect decree passed in a mortgage suit cannot be entertained and decided by the High Court. In such matters if the decree holder is unable to satisfy the decre by sale of the mortgaged property then he can apply to the High Court for a {{FOOT NOTE}}
(1) PLD 1968 Kar. 797 {{FOOT NOTE}} decree under Order XKXIV, rule 6 and after such a decree has been passed,' be can apply to the Special Court for its execution.
28. ' Mr. A. Hamid appearing in Execution No, 79/82 contended that as this execution is in respect of cost the Special Court will have no jurisdiction to entertain it. Cost forms part of a decree and if the decree arises out of the M ' subject-matter which falls within the jurisdiction -of the Special Court then the Special Court will have jurisdiction to execute such decree for cost.
29. From the above discussion the following rules can be laid down :-
(1) The Special Court shall have jurisdiction to execute the decree passed by it.
(2) The Special Court shall have jurisdiction to execute the decree passed by any Court provided the subject-matter in respect of which decree has been passed falls within the jurisdiction of the Special Court.
(3) The pending execution applications filed before 3-5-1979 in respect of matters to which the jurisdiction of Special Court extends shall stand transferred to the Special Court.
(4) The rules laid down at serial Nos. (2) and (3) shall not affect the right of the banking Company which seeks any remedy before any Court which may be available under the law by which the banking company has been established. Such banking company if allowed under such law to seek its remedy before the High Court or any other Court will be entitled to institute and proceed with the matter.
(5) All execution applications filed after 3-5-1979 except those which arise out of suits in which the claim exceeds one million rupees shall b returned for presentation to the proper Court.