' Suit No, 1097/78 was filed by the decree-holder bank in this Court in October, 1978 for recovery, of money against the judgment-debtor and it was decreed on 28-4-1981. During the pendency of this suit, that is, before it was decreed on 28-4-1981, the President of Pakistan promulgated the Banking Companies (Recovery of Loans) Ordinance, 1979 on 27-3-1979. Nearly two years five months after the suit was decreed, the decree-holder filed the present Execution Application on 3-10-1981 in this Court for execution of the decree. By order dated 10-1-1982, this Court ordered execution to issue as prayed. C. M. A. 116/82 was filed by the judgment debtoron 16-2-1981 under Order XXI, rule 26, C. P. C.
Read with section 151, C. P. C. And section 6(4) of the Banking Companies (Recovery of Loans)
Ordinance, 1979 praying for the recall of the aforesaid order dated 10-1-1982 and to return the Execution Application to the decree-holder for presentation to the proper Court.
2. I have heard Mr. Amanullah Khan, learned counsel for the decree-holder and Mr. Abdul Waheed Aseem, learned counsel for the judgment-debtor. Provisions of law, which are relevant for the disposal of C. M. A. 116/82, are sections 37 and 38 of the Code of Civil Procedure and sections 6 and 13 of the Banking Companies (Recovery of Loans) Ordinance, 1979. These provisions are reproduced here :- "Code of Civil Procedure: Section 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 anything 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
(b) where the Court of first instance has ceased to exist or to have jurisdiction to execute it, the Court which, if the suit wherein the decree was passed instituted at the time of making the application for the execution of the decree, would have jurisdiction to try such suit. Section 38.
Courts by which decrees may be executed.,-A decree may be executed either by the Court which passed it, or by the Court to which it is sent for execution."
Banking Companies (Recovery of Loans) Ordinance, 1979: "Section 6. Powers of Special Court.-(1) A Special Court shall-
(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 offences punishable under this Ordinance and shall, for that purpose, have the same powers as are vested in the Court of an 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 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.
(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 198 and 283 of the Pakistan Penal Code (Act XLV of 1860), and the Special Court shall be deemed to be a Court for the purpose 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 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.
(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 re-call and re-hear any witness who has given evidence before the transfer and may act on the evidence already recorded by or produced before the Court from which the proceedings are so transferred."
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."
3. It was contended by Mr. Amanullah Khan that in view of section (6)4 of the 1979 Ordinance, execution application in this case should have been filed before the Special Court of Sind established under section 5 of the Ordinance, as that is the only Court competent to entertain such execution application. On the other hand Mr. S. A. Waheed Aseem relied upon sections 37 and 38 of the Code of Civil Procedure for the proposition that an execution application for executing a decree passed by the High Court in its original civil jurisdiction, can only be entertained by the High Court and by no other Court. Learned counsel also relied upon the following reported judgments from the Indian jurisdiction :
(i) AIR 1956 SC 87.
(ii) AIR 1958 Andh. Pra.
763.
(iii) (1932-33) 37 C W N 679.
4. The question about the competency of the present Execution Application is to be determined in the light of the relevant provisions of the Code of Civil Procedure as well the Banking Companies (Recovery of Loans) Ordinance, 1979. Determination of this question cannot be decided with reference only to sections 37 and 38 of the Code of Civil Procedure. The three judgments from the Indian jurisdiction relied upon by learned counsel for the decree-holder are cases where decisions were given on the maintainability of the execution applications only on the basis of sections 37 and 38 of the Code of Civil Procedure, and in those cases the concerned Courts were not considering statutory provisions similar to those that are embodied in section 6(4) and section 13 of the 1979 Ordinance.
5. According to my interpretation of section 6(4) and section 13 of the Banking Companies (Recovery of Loans) Ordinance of 1979, an execution application for executing a decree passed by a High Court in a suit of the valuation of over rupees one lac filed by a banking company" against a "borrower" or vice versa in respect of or arising out a "loan", can only be filed in the concerned Special Court established under section 5 of the 1979 Ordinance. If an execution application were pending in the High Court when the 1979 Ordinance was enacted, such execution application would continue to be heard and then decided by the High Court by virtue of A section 13(a) of the 1979 Ordinance. In the instant case this is not so. No execution application was pending in this Court when the 1979 Ordinance was enacted. No doubt the suit was pending when the Ordinance came into effect and it is for this reason that the suit was decided by this Court, in view of section 13(a) of the 1979 Ordinance. However, as observed earlier, the value of the suit being more than rupees one lac, an execution application to execute the decree in such a suit cannot be entertained by this Court and can only be entertained by the Special Court.
6. As a result the order dated 10-1-1982 is recalled and it is ordered that the present Execution Application be returned to the decree-bolder for presentation to the competent Court, i,e, the Special Court of Sind.