' SARDAR MUHAMMAD RAZA, J.---M/s. Allied Bank of Pakistan Limited through, Adamjee Road Branch, Rawalpindi had advanced some loan to M/s. High Class Electric Company (respondents Nos.1 to 4) which remained unpaid and ultimately the bank obtained a decree from N.-W.F.P. Banking Tribunal for the recovery of Rs,53,43,800.39 plus cost of Rs,20,394.
2. Such decree dated 22-5-1993 was being executed and some amount had been paid during execution proceedings when on 31-8-1995 the learned Presiding Officer Banking Tribunal directed the payment of decretal amount through an instalment of Rs,2,50,000 per month. The bank kept on receiving such instalments but at the same time has challenged the order through the instant writ petition under Article 199 of the Constitution, obviously, on the ground that the order was utterly without jurisdiction and at the same time not appealable having been passed during execution proceedings.
3. This Court, while exercising powers under Article 199 of the Constitution has to see as to whether the Tribunal concerned has or has not acted without jurisdiction. In this connection if one refers to section 11(2) of Banking Tribunals Ordinance, 1984, it categorically provides that the Banking Tribunal shall not allow the decretal amount to be paid in instalments without the consent of the decree-holder. It is a mandatory provision whereby certain action to be taken by the Tribunal is imperatively prohibited and hence the impugned order dated 31-8-1995, being violative of the mandatory prohibitory provisions of the, law, is without jurisdiction.
4. A perusal of the impugned order would also suggest that the representative of the decree- holder bank Mr. Azhar Hussain did not even belong to the specific branch of the decree-holder bank at Rawalpindi but belonged to a branch at Abbottabad. The decree-holder bank never consented to, rather, strongly resisted the payment through instalments.
5. Learned counsel for the respondents/judgment-debtors argued that after the passage of the impugned order and during the pendency of this writ petition, the decree-holder bank has been receiving the payment in the shape of instalments aforesaid and hence was estopped to plead otherwise and was hit also by the principle of waiver. The learned counsel relied upon "Grindlays Bank Ltd. v. Delite House Limited" PLD 1987 Lahore 51 where acceptance of instalments by plaintiff was considered to be the acceptance of mode of payment of the decretal amount. We have gone through the aforesaid ruling and have observed that it was passed in connection with the Banking Companies (Recovery of Loans) Ordinance, 1979 whereas the present case pertains to the recovery being made under Banking Tribunals Ordinance, 1984, section 11(2) whereof lays down a complete bar on the fixation of instalments without the consent of the decree-holder.
6. Moreover in the above case the instalment was fixed at the time of passing of the decree to which the decree-holder had agreed through its conduct, whereas, in the instant case the instalment is fixed by the Tribunal during execution proceedings. It is a settled principle of law that during execution proceedings a Court or -a---Tribunal cannot go beyond the decree. At the time when the decree was passed in the instant case no instalment was fixed.. The authority is therefore distinguishable.
7. The learned counsel for the respondents further went on to argue that in the instant case the judgment-debtor has been making payment regularly through instalments and no injustice has at all taken place and further that only a few instalments remain to be paid and thus, in the circumstances, this Court should refrain from showing indulgence under Article 199 of the Constitution. In this behalf learned counsel relied upon a Division Bench judgment of this Court Muhammad Gul v. Mst. Shahru Bibi PLD 1995 Peshawar 77 where it was held that the Constitutional jurisdiction under Article 199 should not be exercised where no injustice was going to take place.
We would have agreed with the learned counsel, had the point in the aforesaid ruling been limited to the factum of no injustice in the prospect. But in the aboVe case, the factum of the forums below having acted without jurisdiction was also given a reservation meaning thereby that the provisions of Article 199 could also and always be invoked whenever there was a question of the forum below having acted without jurisdiction. In the instant case the learned Tribunal had utterly acted without jurisdiction.
8. In the circumstances, while accepting the present writ petition, we would set aside the impugned order qua the fixation of instalments as the mode of payment.