' Defendants Nos.3, 9 and 10 have filed C.M. 706/B of 1999 and defendant No,4 has moved C.M.
No,708-B of 1999 purportedly under section 12(2) and Order 9, Rule 13 of the Code of Civil Procedure, seeking setting aside the judgment and decree, dated 12-3-1997.
2. A preliminary objection as to the maintainability of these applications has been raised by the learned counsel for the decree holder/plaintiff that these applications are not maintainable either under section 12(2) of under Order 9, Rule 13, C.P.C. Inasmuch as the Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act, 1997 itself provides a mechanism for challenging the decree and subject to which all orders and decrees passed are deemed to be final and cannot be brought A under challenge by invoking any other law. He has placed reliance on Emirates Bank International Ltd. v. Messrs Osman Brothers and others PLD 1998 Kar.
338.
3. Conversely, the learned counsel for the petitioner has argued that the provisions of Civil Procedure Code are applicable to the proceedings before the Banking Court and as such he has a right to file an application under section 12(2), C.P.C. In this behalf. He has relied upon a Division Bench of Sindh High Court in Mian Munir Ahmad v. United Bank Limited PLD 1998 Kar.
278.
4. The Aquestion as to whether an application for setting aside the decree can be maintained either under Order 9, Rule 13 or under section 12(2) of the Code of Civil Procedure has to be answered with reference to the provisions of Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act, 1997. Section 3 of the aforesaid, Act provides that the provisions of that Act shall be in addition to and save as hereinafter expressly provided, not in derogation of any other law for the time being in force. It, thus, becomes necessary to find out, as to whether there is anything in the said Act which would result in exclusion of the provisions of the Code of Civil Procedure which is a law at the time being in force. In this respect, an important provision is section 12 of the Act which empowers Special Court to set aside the decree passed by it on the grounds stated therein. As this eventuality has been taken care of by section 12, obviously the provisions of Order 9, Rule 13 and section 12(2), C.P.C. Stands excluded.
4-A. This conclusion is fortified by section 27 of the Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act, 1997 which provides that subject to the provisions of appeal, no Court or other authority shall revise or review or call, or permit to be called in question any proceeding, order, judgment, decree or sentence of a Banking Court or the Banking Mohtasib or the legality or propriety of anything done or intended to be done by the Banking Court or the' anking Mohtasib under the Act. To allow a decree to be questioned by means of an application under the Code of Civil Procedure, will amount to defeat the clear intent of the Legislature which is spelt out by section 27 of the Act itself.
5. There appears to be divergence of opinion on the aforesaid question between different Benches of the Sindh High Court. While in the case of Emirates Bank International Ltd. v. Messrs Usman Brothers and others PLD 1998 Kar. 338 the learned Judge has come to the conclusion that application under section 12, C.P.C. Was not competent in respect of decree passed by the Special Court. The Division Bench of the same Court in Mian Munir Ahmad v. United Bank Ltd. And 3 others PLD 1998 Kar. 278 has taken a different view. Both the judgments though not binding on me, have great persuasive value. Generally the judgment of the Division Bench should take precedents over the judgment of the Single Judge, but after having carefully gone through both the judgments, I am of the opinion that the view taken in Emirates Bank's case (supra) is correct enunciation of law. One of the reason for coming to this conclusion is that in that case, the learned Judge had relied upon Pakistan Fisheries Ltd., Karachi v. United Bank Ltd. PLD 1993 SC 109 and the following observations in that case were made:-- "It is a fundamental rule, that where an enactment creates a new jurisdiction, prescribes the manner in which that jurisdiction is to be exercised and further specifies the remedy, such remedy is exclusive and the party aggrieved of an order made in exercise of that jurisdiction must seek only such remedy and not others. Evidently, the Legislature in its anxiety to protect the orders of Special Court, has gone to the extent of ordering that no Authority other than the appellate forum specified in section 12, shall even allow to throw a challenge to the validity of such order. Combined effect of these provisions Is that judgment and orders passed by a Special Court cannot be assailed before any forum except in accordance with the provisions of section 12."
' It may also be mentioned that this Court in Messrs Shah Jewana Textile Mills Limited v. United Bank Limited PLD 2000 Lah. 162 has already taken the view that since the orders passed by the Banking Court under the Ordinance are final, the Court cannot review its orders. Moreover, so far as this Court is concerned the controversy stands resolved by the Division Bench judgment of this Court in Gold Star International and others v. Muslim Commercial Bank Limited 2000 MLD 421 wherein it has been conclusively held that section 12(2) of Code of Civil Procedure has no applicability to the proceedings arising under the Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act, 1997.
6. Even on merits, the applicants do not have any case. Admittedly, the applicants were parties to the proceedings but have chosen to keep away. They did not obtain leave to appear and defend the suit, with the consequence that under section 9(4) of the Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act, 1997, the averments made in the plaint are deemed to be correct.
7. The learned counsel for the applicants has explained that the applicants had never furnished any guarantees and as such no decree could be passed against them.
8. I am afraid, this question cannot be examined in the application under section 12(2) or under Order 9, Rule 13 of the Code of Civil Procedure as there is no element of fraud involved therein nor can the decree be said to be without jurisdiction. The only remedy which the applicants had, was to invoke the provisions of section 12 of the Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act, 1997.
Both these applications are dismissed. Civil Miscellaneous No,707/B of 1999 Civil Miscellaneous No,709/B of 1999 As the applications moved by the applicants under section 12(2) and Order 9, Rule 13, C.P.C. Have been dismissed, these applications have become infructuous and are disposed of accordingly.