1. ' The judgment-debtors in this ease have ,raised an objection that the decree cannot be executed as it is a nullity having been passed by a Court lacking jurisdiction at the time of passing the same.
2. It has been asserted on behalf of the judgment-debtors that the decree sought to be executed was passed by the learned Senior Civil Judge, Rawalpindi, on 1-4-1979 while the Banking Companies (Recovery of Loans) Ordinance, 1979, was promulgated on 27-3-1979 and as required by section 1(4) of the said Ordinance notification for its enforcement with effect from 1-4-1979 was issued on 28-3-1979 which was published in the Official Gazette dated 29-3-1979.
3. ' The learned counsel for the judgment-debtors submitted that by virtue of Section 5(3) of the General Clauses Act, the Banking Companies (Recovery of Loans) Ordinance came into force on 31-3-1979 at 12 mid-night, and as Section 6(4) of the said Ordinance contemplates that for trial of suits for recovery of loans by the Banks, the exclusive jurisdiction shall vest in Special Courts set up under the Ordinance, the pending cases stood transferred to those Courts and the learned Sdnior Civil Judge had no jurisdiction to continue trial of the suit out of which the execution has arisen and to pass a decree therein on 1-4-1979.
4. ' The learned counsel further submitted that notwithstanding the above position that the decree is not executable the judgment-debtors would pay the principle amount, but do not want to pay the interest' which otherwise also in repugnant to the injunctions of the Holy Quran and Sunnah.
5. ' The learned counsel for the decree-holder in reply raised the following contentions:
(1) The decree passed by the Civil Court on 1-4-1979 is valid and has been passed with proper jurisdiction notwithstanding the promulgation of Banking Companies (Recovery of Loans)
6. Ordinance, 1979. He submitted that Special Courts were to be set up as provided by Section 5 of the Ordinance and the said Courts having not been established on 1-4-1979, the Senior Civil Judge continued to have jurisdiction in the matter as the right of recovery of loans accrued to the decree- holder under the removal law and till the special Courts to enforce such a right had not been set up the Civil Courts could not be dispossessed of the jurisdiction. He further submitted that the Civil Courts would have been divested of the jurisdiction only when the Special Courts had been established as provided under the Ordinance. Reliance in support- of the above contention was placed on Messrs United Bank Ltd. v. Mst. Rehana Raza PLD 1983 Kar. 467 and United Bank Ltd. v.
7. Messrs Akbar Agencies Ltd, PLD 1987 -Kar.
8. 81.
(2) That the decree being not a nullity is executable even if there is an illegality committed in the passing of the same.
(3) That the decree sought to be executed was an ex parte decree and that an application for setting aside the same was filed on 16-2-1982 which was dismissed by the Special Judge (Banking) for non-prosecution on 18-4-1982 and in the said application no objection as to the decree being a nullity was raised. As such, the judgment-debtors are new precluded to raise this objection as it is hit by the principles of res judicata.
9. ' In the same context it has been contended that the objection was not only not raised at the time of making the application for setting aside the ex parte decree, no such objection was raised even when the execution was taken out and warrant of attachment of assets of judgment-debtors was issued. On the contrary, the judgment-debtors sought time to pay the decretal amount and, therefore, they should not be allowed to say now that the decree cannot be executed. Reliance in support of this contention has been placed on Yousaf Aziz v. M/s. Ageela Begum and 3 others PLD 1978 Kar. 205 and Ch. Abdul Aziz v. Yusuf Dada and another PLD 1965 (W.P.) Kar.
10. 359.
11. ' The learned counsel for the judgment-debtors in reply only contended that Yousaf Aziz's case reported as PLO 1978 Kar. 205 is distinguishable.
12. ' The only question that falls for determination in this case is as to whether the 'decree passed on 1- 4-1979 by the Senior Civil Judge, Rawalpindi with jurisdiction acid executable?
13. ' Section 6 of Banking Companies (Recovery of Loans) Ordinance, 1979, concerns the ouster of jurisdiction of Civil Courts in matters placed within the jurisdiction of Special Courts under the Ordinance and Section 5 of the said Ordinance confers power on Federal Government to establish Special Courts. The power under Section 5 is discretionary with the Government and it may or may not establish Special Courts. The aforementioned two provisions, viz. Sections 5 and 6 will, therefore, have to be read together. As such, the ouster clause contained in Section 6 of the Ordinance will come into operation only if and after the Federal Government has exercised its discretionary power to set up a special Court under the Ordinance competent to take cognizance in a given case. A contrary view will lead to the result that the Civil Courts will stand divested of their normal jurisdiction under existing law even though the alternative forum of special Courts may never be provided by the Federal Government . Thus, even a genuine claimant would be left without remedy.
14. I do not think that could be the intention' of the Legislature. Moreover, Such an anomalous result cannot be supported on the basis of any principle of law.
15. It has not been shown to me that any Special Court was in existence on 1-4-1979 that could take cognizance of the instance case. Obviously, therefore, the decree passed by the Senior Civil Judge, B Rawalpindi, on 1-4-1979 must be held to be with jurisdiction and consequently executable.
16. ' I accordingly reject the objections raised by the judgment-debtors and hold that the decree is executable.