KARAMAT NAZIR BHANDARI, J.- Respondent No. 1 brought a suit for recovery of a sum of Rs.
37,62,463.00 as due on 31.12.1995 and for payment of future charges, costs and expenses including the amount of mark up etc. Till full and final liquidation of liability. The suit was based on the finance agreement dated 22.1.1995. it was asserted in the plaint that the amount was advanced to the petitioner on the security of mortgage *by deposit of title deed of the property and on the execution of promissory note and other charge documents. Respondent No. 1, a Tribunal constituted under the Banking Tribunal Ordinance, 1984 (hereinafter referred to as the Ordinance, 1984) issued a show-cause notice to the petitioner as to why the decree as prayed for be not passed. 0n failure of the petitioner to so show, respondent No. 1 decreed the suit on 11.7.1996. A decree sheet, Annexure-D, was drawn. The decree-holder filed execution application which was resisted by the petitioner by filing an application under Order XLVII read with Section 151 of the Civil Procedure Code, 1908 (hereinafter referred, to as CPC). The prayer made in the application was that the execution petition be declared void and without jurisdiction. The basis of the application was that under Section 6(8) of the Ordinance, 1984, the Tribunal was required to pass a final mortgage decree but instead it passed the simple money decree which cannot be executed. The application seems to have been resisted and vide order dated 2.2.1997 respondent No. 1 dismissed the application. Aggrieved the judgment-debtor has filed this Constitutional petition.
2. Miari Hamid Faruq, Advocate, learned counsel for the petitioner has reiterated the above argument and has stated that in the facts and circumstances of the case, the drawing of a simple money decree and its consequential execution is illegal. He has relied on Section 6(8) of the Ordinance, 1984 to substantiate the submission that because the plaintiff was enforcing a mortgage, only a final mortgage decree as provided under Order XXXIV, Rule, 14 CPC could have been drawn.. He has relied on the case reported as The Bank of Bahawalpur Ltd. Karachi Versus Siddiq Textiles Ltd. and others (PLD 1970 Karachi 643).
3. Learned counsel for respondent No. 2, the decree- holder, has controverted the above submission and has prayed that the decree framed in the circumstances is legal and the same can be executed by auction of the mortgaged property.
4. it will be seen that the whole philosophy of creating special Banking Courts/Banking Tribunals is to ensure speedier recovery of bank loans. Such claims was being adjudicated by Civil Courts prior to 1979. in particular, the provisions of the Ordinance, 1984 (since repealed) were stringent and somewhat harsher inasmuch as the borrower could only defend the claim after showing cause that the had valid reason to resist the claim. The submission of the learned counsel for the petitioner has to be attended to keeping in view the above background. The perusal of the plaint and the judgment shows that the plaintiff was seeking recovery of the outstanding dues and not just a mortgage decree, it was stated in the plaint that irl order to secure repayment of the loan, the defendant furnished the security of property by depositing title deed of the property, it was also claimed that initially the amount be ordered to be recovered by sale of mortgaged property and if the same was not sufficient, the plaintiff be given the option to recover the amount from other assets of the defendant borrower. As has been laid down in the case of Bank of Bahawalpur (ibid) such a suit was maintainable under Order XXXIV, Rule 4, CPC and there is no need for the plaintiff to proceed and for the Court to pass a decree under Order XXXIV, Rule 14, CPC. The above judgment relied upon by Mian Hamid Faruq, Advocate. I am afraid, does not support his contention.
5. There is another aspect of the case. Mian Hamid Faruq, Advocate, has not shown as to how the petitioner will be adversely affected if the decree as it is allowed to be executed in distinction to the decree prepared under Order XXXIV, Rule 4, CPC for sale of the property. At best, it is a case of insisting on a hyper technicality. Writ jurisdiction being equitable will not be exercised to uphold and enforce technicality, if it defeats the ends of justice. This observation should not be understood to say that the decree as such has not been properly framed. The plaintiff has all along been claiming recovery of dues through, sale of mortgaged property and there is no need for him to separately sue under Order XXXIV, Rule 14, CPC for sale of mortgaged property. Provisions of Section 6(8) of the Ordinance, 1984 are meant to cut short the procedure laid down in CPC. in accordance with the Civil Procedure Code, 1908 previously a preliminary decree was required to be issued and final decree could only follow after some time. As noted, the philosophy behind establishment of Special Banking Courts/Banking Tribunals was to cut short the delay in litigation and it is in this background that provision of Section 6(8) of the Ordinance, 1984 has to be understood.
6. For the above-noted reasons, this petition is dismissed, leaving the parties to bear their own costs. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.