' SAIDUZZAMAN SIDDIQUI, J.---The above petition has arisen out of proceedings under section 12(2) of C.P.C. The Trial Court by order dated 16-1-1994 accepted the application filed by respondent No,4 under section 12(2) C.P.C. And recalled the compromise decree dated 5-12-1993 passed in Suit No,182/1 instituted by petitioner/plaintiff against the respondents/defendants named above. The order of the Trial Court has been upheld by a learned Judge in Chambers of Peshawar High Court by the judgment impugned in this petition.
' The proceedings under section 12(2), C.P.P. Were initiated by the Trial Court on the basis of a letter received by it from one Muhammad Akram, alleging that the decree in Suit No,182/I was obtained by practicing fraud on the Court. The Trial Court in the first instance issued notices to the petitioner/plaintiff and respondents/defendants. Respondent No,4 was examined by the Trial Court as C.W.1 on 4-1-1994 and, thereafter, petitioner was examined as C.W.2 on 6-1-1994. The petitioner in his statement on oath before the Trial Court not only denied the allegation of fraud but asserted that the compromise decree dated 5-12-1993 was validly passed in Suit No,182/1 and that all the respondents were present before the Court on 5-12-1993, when the compromise decree was passed by the Court. He was not cross-examined on these assertions by the respondents. Similarly, from the statement of respondent No,4 dated 4-1-1994, it does not appear that at the time she was examined on oath by the Trial Court, the petitioner was present before the Court and allowed opportunity to cross-examine respondenINo,4.
The learned counsel for the petitioner contends that in view of the denial by the petitioner on oath, the allegation of fraud, and his unchallenged assertion that the compromise was validly recorded, it was not possible for the Trial Court to decide the application under section 12(2), C.P.C. Without framing proper issues and allowing opportunity to parties to lead evidence on the same. Reliance in this connection is placed on the case of Ghulam Muhammad \ 5 M. Ahmad Khan and 6 others (1993 SCM R 662).
' The contention of the petitioner requires examination. We, accordingly, grant leave to appeal. The proceedings before the Trial Court arc stayed.
1996.SCMR 1525 [Supreme Court of Pakistan] Present: Saad Saood Jan and Muhammad Ilyas, JJ ALLIED BANK OF PAKISTAN LIMITED 59, THE MALL, LAHORE---Petitioner versus SHABBIR AHMAD-Respondent Civil Petition for Special Leave to Appeal No,447/L of 1994, decided on 4th October, 1995.
(On appeal from the order of the Lahore High Court dated 24-1-1994 passed in FAO No,15 of 1994). #TBS 3. During execution proceedings, the respondent made an application #TBE Banking Companies (Recovery of Loans) Ordinance (XIX of 1979)--- ----Ss. 6(1)(a) & 12(1)---Execution of decree for recovery of Bank loan--Judgment-debtor's application praying that decree-holder be directed to sell out golden ornaments (which had been deposited by judgment-debtor as security for loan) equal to decretal amount and then release remaining golden ornaments lying with decree-holder---Judgment-debtor did not disclose that said ornaments had already been sold during pendency of suit---Banking Court without notice to decree-holder appointed Local Commissioner to sell ornaments in question---Validity of such order was challenged by decree-holder through review application but to no effect---Appeal against dismissal of said order was dismissed by High Court---Validity---Banking Companies (Recovery of Loans) Ordinance, 1979 does not contain any specific provision allowing or barririg review application at trial stage or that of execution---Any order of Special Banking Court, however, can be challenged before High Court by means of appeal, but such appeal would not be competent against interlocutory order which does not dispose of entire case before Special Court- --Leave to appeal was granted to consider whether S. 6(1)(a), Banking Companies (Recovery of Loans) ,Ordinance, 1979 which confers all powers of Civil Court on Special Banking Court could be pressed into service for allowing Special Court to review interim order passed by it during execution proceedings. [pp. 1527, 1528] A & B Pakistan Fisheries Ltd. v. United Bank Ltd. PLD 1993 SC 109 ref. M.A.
Zafar, Advocate assisted by Ch. Mehdi Khan Mehtab, Advocateon-Record for Petitioner. .,Nemo for Respondent.
Date of hearing: 4th October, 1995.
' MUHAMMAD ILYAS, J.---This petition has been made by the Allied Bank of Pakistan seeking leave to appeal against order, dated the 24th January, 1994 passed by a Division Bench of the Lahore High Court dismissed an appeal filed by the petitioner against order, dated 17th October, 1993 made by the Special Judge, Banking Court, Lahore.
2. The petitioner had filed a suit before learned Special Judge against the respondent, Shabbir Ahmad for recovery of Rs,77,912 with interest. The said amount had been advanced to the respondent by the petitioner as a loan on the security of golden ornaments and two life insurance policies. Golden ornaments had, iii fact, been sold, during the pendency of the suit, for Rs,38,000 and the sale proceeds had been credited to the said loan. The suit was ultimately decreed. The petitioner then made an execution application for recovery of Rs,1,09,073.60 by including the interest claimed by the petitioner. Praying that the petitioner be directed to sell out the golden ornaments equal to the decrial amount and then release the remaining golden ornaments together with the two life insurance policies lying with the petitioner. He did not disclose that the above ornaments had already been sold as aforesaid.
4. The learned Special Judge without notice to the petitioner appointed a Local Commissioner to sell the ornaments in question.
5. Feeling aggrieved by the order of the learned Special Judge with regard to the appointment of the Local Commissioner, the petitioner made an application to the learned Special Judge for review of the said order. The review application was, however, dismissed by the learned Special Judge, on the ground that it was time-barred. According to the petitioner, however, the application was within time.
6. Order of the learned Special Judge dismissing review application was challenged by the petitioner by filing the said appeal before the Lahore High Court which was dismissed by the learned Division Bench holding that the learned Special Judge had no jurisdiction to review his order.
7. It was contended by learned counsel for the petitioner that according to clause (a) of subsection
(1) of section 6 of the Banking Companies (Recovery of Loans) Ordinance, 1979, learned Special Judge had all the powers of a Civil Court, including that of review, and as such the view taken by the High Court was erroneous. Clause (a) of subsection (1) ibid reads as follows: "(a) in the exercise of its civil jurisdiction, have in respect of a claim filed by a banking company against a borrower 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)."
The learned Division Bench had relied upon Pakistan Fisheries Ltd. v. United Bank Ltd. (PLD 1993 SC 109) to support its verdict. With regard to this precedent case, it was submitted by the learned counsel that it had no bearing on the point in question inasmuch as the case under report related to an application for revision and not to an application for review.
8. Subsection (3) of section 8 of the said Ordinance deals with the execution of decrees passed by a Special Court and reads as follows:-- "(3) The Special Court shall, on the application of the decree-holder forthwith order execution of the decree as arrears of land revenue or such other manner as it may deem fit."
9. The Ordinance does not contain any specific provision allowing or barring a review application at the stage of trial or that of execution. According to subsection (1) of section 12 of the said Ordinance, any order of a Special Court can be challenged before the High Court by means of an appeal but such appeal is not competent against an interlocutory order which does not dispose of 1A the entire case before the Special Court.
10. The question whether clause (a) of subsection (1) of section 6 which confers all the powers of a Civil Court, can be pressed into service for allowing the Special Court to review an interim order passed by it during execution proceedings 'needs consideration. Learned counsel submits that in no precedent case, the said question has been decided either way. We, therefore, grant leave to the petitioner to appeal against the above order of the learned Division Bench so that the said question may be thoroughly examined and then determined not only for the purpose of the present case but also for future guidance.