MAMOON KAZI, C.J.---The respondent leased on a complete unit of imported plant sifter with accessories, to one Murtaza Flour Mills (Pvt.) Ltd. On executed between the parties wherein all the terms and conditions agreed by them were embodied, The present appellants acted as guarantors by executing a personal guarantee for repayment of the rentals and restoration of the leased out machinery after a period of 36 months. The principal debtor paid rentals for ten months and it thereafter defaulted, with the result that the lease was terminated and the former became liable to restore the machinery and pay a penalty as per terms of the said lease agreement. The respondents made efforts for recovery of the machinery and the other penalties to which the said debtor had become liable, but without success. Consequently, a suit was filed by the respondents against the borrower and the appellants.
2. When the suit came before the Banking Tribunal constituted under the Banking Tribunals Ordinance, 1984, the same was decreed in the sum of Rs.9,32,500. 'The machinery was also ordered to be returned to the respondents.
3. Thereafter, the decree-holder filed execution application claiming the said decretal amount and Rs.2,50,200 being monthly rentals and Rs:3,21,904 and a further sum of Rs.,19,773 as mark-up.
4. During the pendency of the execution proceedings, an application was filed on behalf of the appellants before the Banking Tribunal for review of the judgment but the application was dismissed on 24-4-1995 as the Tribunal found that the liability of the appellants under the said agreement of guarantee was co--extensive with that of the main borrower.
5. The present appeal was tiled on behalf of the appellants, but it is pertinent to point out that the appellants had failed to specify, in respect of which order, passed by the tribunal, the appellants were aggrieved.
6. When the appeal came up before this Court for hearing, it transpired that the entire decretal amount had not been paid by the appellants, as provided under section 9(2) of the Banking Tribunals Ordinance, 1984, which requires that such amount should be deposited by the appellants before an appeal could be entertained by the Court. Consequently Mr. Abdul Rauf, learned counsel for the appellant, requested for time and in pursuance of that request two week's time was allowed to the appellants to deposit such amount. It was further 'observed that on failure of the appellants to deposit the said amount, the appeal filed by them would stand automatically dismissed.
However, when the matter came up before the Court for hearing thereafter, it transpired that such amount had not been deposited on behalf of the appellants, but instead an application was filed for review of the order earlier passed by the Bench. The main ground urged in the review application was that the Second Proviso to section 9(1) of the said Ordinance provided for deposit of only such instalments, default in respect of which had been made by the appellants and consequently, the appellants were not liable to deposit the entire decretal amount. This application has been very strongly resisted by Mr. Mansoor-ul-Arfin, learned counsel appearing on behalf of the respondents. An objection was also raised by him regarding maintainability of the appeal, since the appeal has been filed after dismissal of the review application, filed on behalf of the appellants before the Banking Tribunal during pendency of the execution proceedings. According to the learned counsel neither any application for review was competent before the Tribunal, nor the order passed by the Tribunal could be challenged in appeal before this Court.
7. A reference to the relevant provisions of the said Ordinance clearly indicates that an appeal has been provided for the section 9 of the Ordinance, in respect of an order under subsection (4) or subsection (5) of section 6 of the said Ordinance, or a decree or sentence, passed under the said Ordinance, which further indicates that no appeal is provided for, in respect of any order passed on a review application. In fact, provisions of the said Ordinance did not permit filing of any review application. Such being the legal position, was even very candidly conceded by Mr. Khalid M.
Ishaque, learned counsel for the appellants. The learned counsel has however argued that if no appeal is provided for in respect of any order now impugned in this appeal, the appeal be treated by this Court as a Constitutional petition and decided on merits.
8. In respect of the above proposition, the main objection raised on behalf of the learned counsel for the respondents is firstly, that section 10 of the said Ordinance attaches finality to the orders passed by a Banking Tribunal and subject to the provisions of an appeal, it further bars any other proceedings which may be filed to challenge the legality or propriety of anything done or intended to be done by the Banking Tribunal under the said Ordinance. Secondly, according to learned counsel, this appeal cannot be treated as a petition because, the respondent before this Court is a Mudaraba Company, managed by a Corporation, which is not a person performing functions in connection, either with the affairs of the Federation or a Province.
8-A. It may be pointed out that although, Mr. Mansoor-ul-Arfin is right, but even if such technicalities as pointed out by the learned counsel, are surmounted, the appellants have no case on merits even if the appeal is converted into a Constitutional petition.
9. The main contention of Mr. Khalid Ishaque on merits of the case was that the appellants were only guarantors and their guarantee was limited only to the payment of instalments by the principal-debtor. Consequently, they could not be held responsible for the entire decretal amount which included all the outstanding dues of the principal-debtor. It may be pointed out in this regard, that the jurisdiction of this Court under Article 199 is not co-extensive with that of an Appellate Court. The learned counsel for the appellants has raised issues of facts which have already been determined by the Tribunal and they have already attained finality. So far as the order dated 24-4-1995 is concerned, the same does not suffer from any legal infirmity. The appellants were guarantors for the payment of dues of the principal-debtor, therefore, it cannot be held that the liability of the. Appellants was not co-extensive with that of the principal debtor.
Therefore, the Tribunal declined to review the decree of the earlier passed by it. Consequently, no exception can be taken to the findings which are purely findings of fact and appear to have been based on the evidence recorded by the respective parties before the Tribunal. The petition is therefore, not competent. Even an appeal is not competent as the appellants have failed in the first instance, to establish that the decree or the order of the Tribunal was in respect of the default made in the instalments, nor the same is competent even otherwise, the same being in respect of an order passed on a review application. No appeal has been provided for by the said Ordinance in respect of such order. It is needless to say that right of review or right of appeal must be conferred on a party by a statute, and there being no such provision in the said Ordinance, both the review applications filed before the Tribunal and the appeal before this Court, were incompetent. The appeal was also incompetent on account of failure of the appellants to deposit the entire decretal amount in respect of which an order was earlier passed by us on 21-6-1996. The appellants have no case even on merits, as was pointed out earlier.
For the aforesaid reasons, the appeal is dismissed in limine.