' MIAN MUHAMMAD AJMAL, J.---Through this judgment we propose to dispose of Writ Petitions Nos.
58, 59 and 60 of 1998 alongwith Civil Miscellaneous Nos.46, 47 and 48 of 1998 as the same have arisen out of similar judgments and decrees of the District Judge, Bannu dated 2-7-1995, 11-1-1997 and 113-6-1995 whereby he decreed the respondent's application filed under section 30 of the House Building Finance Corporation Act of 1952. .
2. Brief facts in Writ Petition No,58 of 1998 are that petitioner obtained loan of Rs,85,000 for the construction of her house from respondent No,3. She later on was declared as defaulter, consequently respondent No,3 moved an application under section 30 of the House Building Finance Corporation Act, 1952 for the recovery of the outstanding amount. On the application of petitioner's attorney, the ex parte proceedings were set aside on 2-7-1995. Tlie Special Attorney of the petitioners also recorded his statement in the Court whereby he undertook that the petitioner would pay the arrears of loan including the amount of default in instalments of Rs,2,000 per month w.e.f, 1-7-1995 failing which the petitioner's property would be liable to be attached/aunthioned. On 23-10-1997 the respondent No,3 instituted execution application before the learned District Judge, Bannu. During the execution proceedings, the petitioner filed an application challenging the jurisdiction of the District Judge that it could not pass any decree in banking case. The learned District Judge dismissed the application of the petitioner and ordered the attachment of the suit property vide his order dated 4-3-1998.
3. In Writ Petition No,59 of 1998, the petitioner was advanced loan of Rs,1,50,000 for the construction of her house from respondent No,3. Due to default in payment of instalments, respondent No,3 moved an application under section 30 of the House Building Finance Corporation Act, 1952 for the recovery of outstanding amount before the District Judge, Bannu, who after hearing the parties, decreed the application in favour of respondent No,3 and ordered the petitioner to pay the outstanding amount vide his order dated 11-1-1997. Respondent No,3 filed execution application before the District Judge, Bannu for the recovery of decretal amount through arrest of the judgment-debtor and or on attachment/auction of the suit property. During the execution proceedings, the petitioner filed an application under section 12(2), C.P.C.. To the effect that the District Judge had got no jurisdiction to entertain the recovery suit etc. And, thus, the decree granted to the respondent No,3 was void and without any lawful authority. The learned District Judge, Bannu dismissed the application of the petitioner and directed the judgment-debtor to hand over the possession of the suit house vide his order dated 4-3-1998.
4. Similar are the facts in Writ Petition No,60 of 1998. The petitioner herein was granted loan of Rs,One Lac by respondent No,3. Later due to default in repayment of loan, the respondent No,3- moved an application under section 30 of the House Building Finance Corporation Act, 1952 for recovery of the outstanding amount. On 13-6-1995 the petitioner appeared before the Court and recorded his statement to the effect that he would pay the outstanding amount against him. He was directed to deposit the due amount from him within a period of three months failing which his property would be liable to attachment/sale etc. Vide order of the District Judge, dated 13-6-1995.
Respondent No,3 moved execution application dated 3-12-1996 before the District Judge, Bannu.
During the execution proceedings, the petitioner filed an application under section 12(2), C.P.C.
Challenging the jurisdiction of the District Judge, Bannu. The District Judge, Bannu dismissed the aforesaid application of the petitioner vide his order dated 4-3-1998.
5. We have heard the learned counsel for the petitioners and have also gone through the material on the files.
6. For resolution of the issue in dispute it would be appropriate to reproduce section 7 of Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act, 1997 (Act XV of 1997):- "7. Powers of Banking Courts---(1) Subject to the provisions of this Act, Banking Court shall---
(a) in the exercise of its civil jurisdiction have 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 offences punishable under this Act and shall, for this purpose, have the same powers as are vested in a Court of Session under the Code of Criminal Procedure, 1898 (Act V of 1898): Provided that a Banking Court shall not take cognizance of any offence punishable under this Act except upon a complaint in writing made by a person authorised in this behalf by the banking company in respect of which the offence was committed.
(2) A Banking Court shall in all matters with respect to which the procedure has not been provided for in this Act, follow the procedure laid down in the Code of Civil Procedure, 1908 (Act V of 1908), and the Code of Criminal Procedure, 1898 (Act V of 1898).
(3) All proceedings before a Banking Court shall be deemed to be judicial proceedings within the meaning of sections 193 and 228 of the Pakistan Penal Code (Act XLV of 1860), and a Banking Court shall be deemed to be a Court for purposes of the Code of Criminal Procedure, 1898 (Act V of 1898).
(4) Subject to subsection (5) no Court other than a Banking Court shall have or exercise any jurisdiction with respect to any matter to which the jurisdiction of a Banking Court extends under this Act, including a decision as to the existence or otherwise of a loan or finance and the execution of a decree passed by a Banking Court.
(5) Nothing in subsection (4) shall be deemed to affect---
(a) the right of a banking company to seek any remedy before any Court or otherwise that may be available to it under the law by which the banking company may have been established; or
(b) the power of the banking company or jurisdiction of any Court such as is referred to in clause (a); or require the transfer to a Banking Court of any proceedings pending before any banking company or such Court immediately before coming into force of this Act.
(6) All proceedings, including proceedings following the filing of an arbitration award and proceedings for the execution of a decree within the jurisdiction of a Banking Court, pending in any Special Court constituted under the Baking Companies (Recovery of Loans) Ordinance, 1979 (XIX of 1979), or under the Banking Companies (Recovery of Loans, Advances, Credits or Finances)
Ordinance, 1997 (XXV of 1997), or any Banking Tribunal under the Banking Tribunals Act, 1984 (LVIII of 1984), or any other Court including a High Court shall stand transferred to or be deemed to be transferred to the Banking Court having jurisdiction. On transfer of proceedings under this subsection, a Banking Court shall require the attendance of the parties through notices issued in accordance with the procedure for service of summons or notice laid down in subsection (3) of section 9.
(7) In respect of proceedings transferred to a Banking Court under subsection (6) the Banking Court shall proceed from the stage which the proceedings had reached immediately prior to the transfer and shall not be bound to recall and re-hear any witness and may act on the evidence already recorded or produced before the Court of Tribunal from which the proceedings were transferred."
' Subsection (4) of the above quoted section would show that no Court other than a Banking Court shall have or exercise any jurisdiction with respect to any matter to which the jurisdiction of a Banking Court extends under this Act, including a decision as to the existence or otherwise of a loan or finance and the execution of a decree passed by a Banking Court, whereas subsection (5) has an overriding effect of ousting the jurisdiction of the Banking Court as conferred by subsection (4) as clause (a) of subsection (5) provides that the right of a banking company to seek any remedy before any Court or otherwise that may be available to it under the law by which the banking company had been established, the Court provided under the concerned law shall have the jurisdiction.
7. The impugned decrees in these cases have been passed in the exercise of the jurisdiction conferred in the District Judge under section 30 of the House Building Finance Corporation Act, 1952 (Act XVIII of 1952), whereby House Building Finance Corporation was established. It would also be appropriate to reproduce the said section of law, which is as follows:- "30. Special provisions for enforcement of claim by the Corporation.--.(1) Where by reason of the breach of any agreement by the borrower or the partner, the Corporation becomes entitled to require the immediate payment of the amount due by the borrower to the Corporation, any officer of the Corporation authorised generally or specially by the Board in this behalf may apply to the District Judge within the local limits of whose jurisdiction the borrower's house is situated for any one or more of the following reliefs, namely:-
(a) an order for the sale of any property or properties pledged, mortgaged, hypothecated or assigned to the Corporation as security for the sums due by borrower or the partner.
(b) for an injunction restraining the borrower from in any manner removing, transferring or disposing of any of the properties referred to in sub-clause (a);
(c) for an ad interim attachment attaching the properties referred to in clause (a) above and such other properties of the borrower as in the opinion of the District Judge were sufficient to cover the claim of the Corporation against the borrower including costs and interest, or the partner, including costs, interests, share in rental income, share in capital gains and demand charges, as the case may be.
(2) An application under subsection (1) shall state the nature and extent of the liability of the borrower to the Corporation, the grounds on which it is made and such other particulars as may be prescribed.
(3) The District Judge may if he thinks fit hear the applicant and where the reliefs mentioned in sub-clauses (b) and (c) of clause (1) are prayed for in the application shall pass ad interim orders granting such reliefs as in the opinion of the District Judge are sufficient to safeguard the full claim of the Corporation against the borrower or the partner.
(4) At the time of passing his orders under clause (3) the District Judge shall order notice of the application to issue to the borrower together with copies of the application, the order passed by the District Judge under clause (3), and any evidence which may have been recorded at the time of the order under clause (3), calling upon the borrower to show cause on a date to be specified in the notice, why the interim orders should not be confirmed and the reliefs sought in the application be granted.
(5) If no cause is shown on or before the date specified in the notice under clause (4) the District Judge shall dispose of the application.
(6) If the borrower appears and shows cause, the District Judge shall grant the borrower and the Corporation reasonable opportunity to produce their evidence relating to the reliefs claimed in the application; and after considering such evidence and hearing the parties the District Judge shall pass his orders disposing of the application.
(7) When passing his order under clause (5) or clause (6), the District Judge shall---
(a) record his finding as to the total amount due by the borrower or the partner to the Corporation, and the interest payable thereon;
(b) direct or refuse to direct the sale of the properties attached;
(c) confirm, discharge or vary any ad interim orders passed restraining the borrower or attaching his properties; and
(b) pass any other incidental orders.
(8) No order passed by the District Judge ordering the release of any property of the borrower from attachment shall be given effect to until after the expiry of 30 days from the date of that order except with the written consent of the Corporation, or where an appeal has been preferred to the High Court, under the orders of the High Court.
(9) An order under this section for the attachment or sale of property shall be carried into effect as far as may be in the manner provided in the Code of Civil Procedure, 1908, for the attachment or sale of the property in execution of a decree as if the Corporation were the decree-holder.
(10) Any party aggrieved by an order under clause (5) or clause (6) may within thirty days from the date of the order appeal to the High Court, and upon such appeal the High Court may after hearing the parties pass such orders as it thinks proper."
8. The aforesaid provisions of law provided remedy to the Corporation or any officer thereof authorised generally or specially in this behalf to apply to the District Judge within the local limits of whose jurisdiction the borrower's house was situated for any of the relief given under clauses (a) to
(c) and under subsections (5) and (6) of the said section, the District Judge could pass the orders disposing of the application. In all the three aforementioned cases the borrowers appeared before the District Judge and undertook to pay the outstanding amount but failed to keep their words and, thus, violated their undertaking. Under clause (a) of subsection (5) of section 7 of Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act, 1997, the District Judge has properly and competently exercised his jurisdiction as vested in him under section 30 of the House Building Finance Corporation Act, 1952. Moreover, section 3 of the Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act, 1997 provides that the provisions of the Act are in addition to and not in derogation of any other law for the time being in force. Since section 30 of Act No,XVIII of 1952 was in vogue at the time when the decrees were passed in favour of the Corporation, therefore, the petitioners who had not taken any objection before the District Judge with regard to his jurisdiction, cannot now at this stage raise this question specially in view of the provisions as contemplated in section 3 and subsection (5) of section 7 of the Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act, 1997.
' In view of the above, these writ petitions are devoid of any merit, hence are dismissed in limine alongwith C.Ms.