1. This is an application under section 152 read with section 151, C.P.C. filed on behalf of defendant No.1 seeking amendment in the compromise decree, dated 5-6-1998 prepared in pursuance to the compromise application filed by the parties in this suit. It is the case of the applicant that the decree prepared in this suit is different from the terms of compromise because in clause (5) of the compromise application it was mentioned that decretal amount shall carry the mark-up at the rate of 11% per annum, but due to some accidental slip/mistake or omission on the part of the office, the date of charging the mark-up has been mentioned in the compromise decree as "from the date of institution of the suit i.e. 4-10-1997 till payment" instead of "5-6-1998" which is the date of the compromise. It has been further stated, that the compromise application does not contain any clause/condition for sale of the alleged mortgaged property but in the compromise decree there is an order for the sale of the mortgage property, though only simple money decree was to be passed under the circumstances. It has been, therefore, prayed that the necessary amendment/correction be ordered in the decree with regard to the date for charging of the mark- up w.e.f. 5-6-1998 instead of 4-10-1997 and that the same to be realised at 11% per annum on decretal amount. It has been further prayed that the portion about the sale of the alleged mortgaged property be also deleted.
2. Counter-affidavit has been filed on behalf of the plaintiffs wherein it has been stated that the application has been filed in order to delay/prolong the proceedings in Execution Application No.48 of 1999 which is pending before this Court. It has been further stated that decree has been prepared in accordance with law and the relevant portion of section 15(a) of Banking Companies\ (Recovery of Loans, Advances, Credits and Finance) Act, 1997. It has been also stated that no appeal was preferred against the said decree as such it has attained finality. Moreover, the J.Ds. have committed default and, as such, mortgaged property is liable to be sold for satisfaction of the decree. It has, therefore, been prayed that application filed by the J.Ds./defendants be dismissed.
3. Rejoinder has been filed wherein it has been further stated that application has been made for correction of the decree and not for recalling of the order because the decree is not in accordance with the terms of compromise.
4. I have heard Mr. Mansoorul Arfin, learned counsel for the applicants/defendants, and Mr. Bashir Ahmad, learned counsel for the objectors/plaintiffs.
5. It has been argued by the learned counsel for the applicants/defendants that while preparing a decree, the Court cannot go beyond the terms of the compromise. Reliance has been placed on Moulvi Zahirulsaid Allvi v. R.S. Seth Lachmi Narayan AIR 1931 PC 107 wherein it has been held as under:-- "When a decree or any part of a decree, is passed by consent of the parties, it should always so appear on the face of decree when drawn up.
6. The learned counsel for the applicants has also referred to the case of Mst. Ashraf Bibi v. Barkat Ali PLD 1956 Lah. 27 where B.Z. Kaikaus, J. (as he then was) while examining the scope of section 152, C.P.C. had come to the conclusion that as soon as the Court discovers that decree does not, in fact, follow the compromise on account of a patent slip or a mistake, it becomes its duty to correct the mistake and a Court under section 152, C.P.C. can act even suo motu.
7. The learned counsel for the applicant has also referred to an unreported judgments in Banking Suit No.1472 of 1997 (National Development Finance Corporation v. Anwarzaib White Cement Limited and others) while discussing the scope and applicability of section 152, C.P.C. in Banking Cases it was held by Mushtaq A. Memon, J. (as he then was) as under:-- ... Mr. Mansoorul Arfin who represents the defendants; without prejudice to the defendants' case, points out that the order passed by this Court has attained finality by virtue of section 27 of Act (XXV of 1997) and cannot be revised or reviewed except in an appeal preferred under section 21 of the said Act. Reference has been made to order, dated 24-4-1998 passed by me in Suit No.67 of 1987 (Muslim Commercial Bank v. Adamjee Industries Ltd. and others) whereby I had declined to review the order dismissing application for leave to defend."
8. It has been further held as under:-- ... It is true that an order passed by this Court cannot be revised or reviewed except in appeal by virtue of section 27 of Act (XXV of 1997), the power to rectify clerical or arithmetical mistakes in the judgments, decrees or orders on account of accidental slip or omission is inherent in every judicial, quasi-judicial and administrative forum. Indeed, section 152 of the Code of Civil Procedure confers specific power of rectification upon the Court exercising civil jurisdiction. The rectification of apparent mistakes do not amount to review or revision of orders or judgments. The equity and propriety, too, requires exercise of such power in appropriate cases."
9. The learned counsel for the applicants has also pointed out that as per clause (7) of the compromise application. In the event of none implementation of the terms and conditions of compromise the parties have to renegotiate instead of filing of the execution application as done by the plaintiff/decree-holder in this case.
10. Mr. Bashir Ahmad, learned counsel for the plaintiffs/decree-holders has argued that the Banking Companies (Recovery of Loans, Advances, Credits and Finance) Act, 1997, is special enactment and, as such, section 152 of the C.P.C. is not applicable hence the application is not maintainable according to law. The learned counsel has further stated that under section 27 of the said Ordinance no Court or other authority has any power to revise, review any order, judgment, decree passed by a Banking Court. In support of his contention the learned counsel has relied on Messrs Gold Star International and another v. Muslim Commercial Bank Limited 2000 MLD 421 wherein it has been held as under:-- "We also find force in the submission of the learned counsel for the respondent that under section 27 of Act XXV of 1997 subject to the provisions of appeal the judgment and decree attains finality and cannot be called in question. Act XXV of 1997, which is a special law provides the remedies to the parties concerned including the right of appeal under section 21 of the Act and an application in the nature of section 12 of the Act if and when warranted by the circumstances."
11. The learned counsel has further argued that in fact the decree has been prepared in accordance with the mandatory requirements of section 15 of the Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act, 1997 which reads as under:-- "15(1). The decree shall provide for interest or mark-up, as the case may be, on the judgment-debt from the date of institution of suit to payment.
(a) in the case of a loan, for interest at the contracted rate or at the rate of two per cent. above the State Bank Repo rate whichever is higher; and
(b) in the case of finance under a system not based on interest for markup at the contracted rate or at the latest rate of the banking company for similar finance whichever is higher."
12. The learned counsel has, therefore, vehemently urged that under the circumstances application under section 152, C.P.C. is not maintainable according to law and even otherwise the relief claimed, if allowed, shall amount to reviewing the judgment and decree for which there is a clear bar under section 27 of the Act, hence on this score as well, the application is liable to be dismissed.
13. Everting to the first contention raised by the learned counsel for the plaintiffs/decree-holder that an application under section 152, C.P.C. is not maintainable before a Banking Court. I am of the view that the said contention is based on misconception of law. Section 3 of the Act XXV clearly states that "the provisions of this Act shall be in addition to and, save as hereinafter expressly provided, not in derogation of any other law for the A time being in force". Moreover, powers of a Banking Court have been defined in section 7 of the Act and in clause (a) of section 7. it has been clearly mentioned that in exercise of civil jurisdiction a Banking Court shall have all the powers vested in a 'Civil Court under the Code of Civil Procedure, 1908, except those powers which have been expressly excluded with reference to particular sections of the Code of Civil Procedure. A look at clause (2) of section 9 of the Act makes the things more clear, where applicability of section 10 of the Code of Civil Procedure has been made inapplicable, section 9(2) of the Act reads as under:-- "The provisions of section 10 of the Code of Civil Procedure, 1908, shall have no application for and in relation to suits filed hereunder."
14. This view also finds support from the case-law reported in 2000 MLD 421 which has been cited by the learned counsel for the plaintiff. Application under section 12(2), C.P.C. filed before the Banking Court was dismissed not only on merits but also in view of the fact that Act XXV of 1997 which is a special law provides remedies to the parties concerned including the right of appeal under section 21 of the Act and an application under section 12 of the Act if and when warranted by the circumstances.
15. Thus, it would be seen that this Court is not divested of its powers under section 152, C.P.C. in making necessary corrections or amendments in a decree if the same is found to be not in consonance with the terms of compromise filed by the parties, as a result of accidental slip or omission. No doubt, in a consent decree the Court is not expected to insert something from outside, to which the parties to the compromise had not agreed. Under the circumstances I am of the considered view that in a banking case an application under section 152, C.P.C. is maintainable and the Court is competent to correct/modify the mistakes in decree if caused due to some clerical and arithmetical mistake due to accidental slip or omission. However, the moot point for consideration in this matter will be as to whether the amendments sought to be made in the decree stand covered under section 152, C.P.C. when the scope of amendments and correction under this section is only to the extent of clerical and arithmetical mistakes. A look at the compromise application, the judgment accepting and allowing the compromise and the decree prepared in pursuance thereof, clearly shows that difference between the terms of compromise, the judgment and decree is not due to any accidental slip or omission. On the contrary it appears that the Court while passing the judgment and preparing the decree has incorporated so many other things which do not find place in the compromise application viz. the difference in the rate of interest/mark-up, the date from which it has been ordered to be charged in accordance with section 15 of the Act and further order for sale of the mortgaged property which cannot be considered to be a result of an accidental slip, mistake or omission. On the contrary it appears that the learned Judge in his own wisdom, felt it necessary to include and add the same in the judgment and decree and most probably in order to bring the compromise in conformity with the various provisions of the Act.
16. I am in respectful agreement with the case-law cited by Mr. Mansoorul Arfin, learned counsel for the applicant, that a decree should be in accordance with the terms of the compromise, but I am of the humble view that under the circumstances as discussed above, it is not a case falling within the ambit of section 152 or 151, C.P.C. and most probably the remedy, which was available to the J.D./applicant was by way of an appeal under section 21 of the Act. Resultantly, this application is not maintainable and rejected accordingly.