' Through the present writ petition, the petitioners, who are judgment-debtors, as a decree for the recovery of Rs,76,38,695 was passed against them as far back as on 18-7-1998, by the learned Judge, Banking Court-II, Lahore, which is still unsatisfied, have assailed the order and decree dated 18-7-1998 and alternatively praying for the setting aside of the order dated 23-1-1999, whereby the learned Judge, Banking Court, Lahore, dismissed their application filed under section 12(2), C.P.C. In the proceedings under the Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act, 1997.
2. Brief facts leading to the filing of the present petition, as enumerated in the writ petition, are that pursuant to passing a decree for the recovery of Rs,76,38,695 against the petitioners and respondents Nos.2 and 3 by respondent No,4 vide judgment and decree dated 18-7-1998, an execution petition was filed seeking satisfaction of the decree. Admittedly, the said decree was not challenged in appeal. The writ petition then narrates that aggrieved by the said decree, an application under section 12(2), C.P.C., for setting aside the said decree, was instituted by the petitioners, but the Judge, Banking Court dismissed the said application vide order dated 23-1- 1999, hence, the present writ petition challenging the order and decree dated 18-7-1998 and alternatively praying for the setting aside of aforementioned order dated 23-1-1999.
3. The writ petition was not admitted to regular hearing and was still in motion since 10-3-1999, when the decree-holder Bank filed C.Ms. Nos.1261 of 2000 and 1 of 2001, praying therein that as the provisions of section 12(2), C.P.C. Are not applicable in ' the proceedings bctore the Banking Court, therefore, the present writ petition, primarily challenging an order dismissing an application under section 12(2), C.P.C. Is not maintainable and deserves dismissal.
4. Admittedly, as also discernible from the contents of the writ petition, after the passing of the decree dated 18-7-1998, for a colossal amount of Rs,76,38,695, against the petitioners and others, the said judgment and decree was not assailed by any of the judgment-debtors by way of filing an appeal under section 21 of the Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act, 1997, before this Court. Under section 21 of Act XV of 1997, a remedy of appeal is provided, inter alia, against a decree passed by the Banking Court, before the High Court, which appeal was to be heard by a Bench not less than two Judges. The learned counsel for the petitioners has admitted that they have not tiled any appeal against the aforestated judgment and decree. However, after the lapse rt. Limitation period, prescribed for filing such appeal, the petitioners filed an application under section 12(2), C.P.C. And after its dismissal on 23-1-1999, they tiled the present writ petition, on 3-3-1999, wherein apart from challenging order dated 23-1-1999, the petitioners have half-heartedly assailed the terms of the decree. In view of section 21 of the Act XV of 1997, (ibid), a remedy of appeal against a decree, which is impugned in the present writ petition, is provided, which is in all fairness an adequate and efficacious. It has been held in the case of Messrs Chenab Cement Product (Pvt.) Ltd. And others v. Banking Tribunal, Lahore and others PLD 1996 Lahore 672 that the invocation of Constitutional jurisdiction under Article 199 is not allowed, in cases where the remedy of statutory appeal is available and such remedy is effective and adequate. The petitioners, without availing the alternate remedy of appeal, have straightaway rushed to this Court with the Constitutional petition, which is not maintainable under Article 199(1) of the Constitution of the Islamic Republic of Pakistan, 1973.
5. However, another crucial controversy, involves in this petition, is as to whether section 12(2), C.P.C.
Is attracted to the proceedings arisen under the Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act, 1997. The learned counsel of the respondent-decree holder bank has contended that in view of the enormous case law on the subject, section 12(2), C.P.C. Is not applicable to the proceedings arising out of Act XV of 1997, therefore, the Judge, Banking Court has rightly dismissed the application of the petitioners and the writ petition, in which the order of dismissal of application under section 12(2), C.P.C. Has been challenged, is liable to be dismissed.
On the contrary the learned counsel appearing on behalf of the petitioners vehemently asserted that section 12(2), C.P.C. Is applicable to the proceedings before the Banking Court and as such the petitioners have a right to file an application under section 12(2), C.P.C. And the Banking Court illegally dismissed their application, which order needs interference by this Court in the exercise of writ jurisdiction. In support of the aforesaid contention, learned counsel of the petitioners has relied upon Mian Munir Ahmad v. United Bank Limited and 3 others PLD 1998 Karachi 278 and Gul Muhammad through Legal Heirs v. Kazim Imam Jan through Attorney and another 2001 MLD 27.
6. In order to resolve the said controversy I have examined the total case law submitted by the learned counsel of the parties. So far as Gul Muhammad's case, (supra). Is concerned, suffice it to say that this is a case relating to rent matter and the principles laid down in the said judgment have no nexus with the controversy involved in the present case. So far as the next judgment, relied upon by the learned counsel for the petitioners, i.e, Mian Munir Ahmad v. United Bank Limited and 3 others PLD 1998 Karachi 278, is concerned, this Court in the case cited as United Bank Limited v.
Messrs Zafar Textile Mills Limited 2000 CLC 1330, has comprehensively noticed this judgment and was not persuaded by the dictum laid down in the said judgment.
7. Divergence of the opinion on the aforesaid question between different Benches of Sindh High Court was noticed by this Court in the case of United Bank Limited v. Messrs Zafar Textile Mills Limited 2000 CLC 1330 and after duly taking into consideration the judgments reported as Mian Munir Ahmad v. United Bank Limited and 3 others PLD 1998 Karachi 278 and Emirates Bank International Limited v. Messrs Usman Brothers and others PLD 1998 Karachi 338 this Court came to the conclusion that the view expressed in Emirates Bank's case, (supra), is correct enunciation of law as in the said case, the learned Judge has relied upon a Supreme Court judgment reported as Pakistan Fisheries Limited, Karachi v. United Bank Limited PLD 199. SC 109. It would be advantageous to produce said portion of the judgment from united Bank Limited v. Messrs zafar Textile Mills Limited (supra), which is as folio vs:-- "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 Limited v. Messrs Usman Brothers and others PLD 1998 Karachi 338 the learned Judge has come to the conclusion that application under section 12, C.P.C. Was not competent in respect of the decree passed by the Special Court. The Division Bench of the same Court in Mian Munir Ahmad v. United Bank Limited and three others PLD 1998 Karachi 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 precedent 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 Limited, Karachi v. United Bank Limited PLD 1993 SC 109."
' It has been held in the aforesaid judgment, after noticing all the judgments on the subject, that section 12(2), C.P.C. Is not applicable to the proceedings arising under the Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act, 1997, and applications tiled under section 12(2), C.P.C., challenging the decrees passed by the Judge Banking Court, were dismissed.
8. The view of the Sindh High Court as taken in Emirates Bank's case, (supra), as discussed above, is also in consonance with the view subsequently taken by this Court in number of cases to the effect that the application filed under section 12(2), C.P.C., for setting aside the decree of Banking Court, is not maintainable. The controversy almost stands resolved by a Division Bench judgment of this Court in Messrs Gold Star International and another v. Muslim Commercial Bank Limited 2000 MLD 421, wherein it has conclusively been held that section 12(2), C.P.C. Has no applicability to the proceedings arising under the Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act, 1997 (Act XV of 1997). Respectfully following the aforesaid dictum laid down in the aforesaid authorities/judgments of this Court, which pronouncements are binding on this Court as per principle laid down in Begum Nazir Abdul Hamid v. Pakistan (Federal Government) through the Secretary, Interior, Division Islamabad and another PLD 1974 Lahore 7, Noor Muhammad v. Province of Sindh and others 1995 CLC 952 and Multiline Associates v. Ardeshir Cowasjee and others PLD 1995 Supreme Court 423, I am of the considered view that section 12(2), C.P.C. Has no applicability to the proceedings arising out of Act XV of 1997, and thus, the application filed by the petitioners under section 12(2), C.P.C. Before the Banking Judge was misconceived, incompetent and has rightly been dismissed by the Judge Banking Court and I am not inclined to interfere in the impugned order dated 18-7-1998, which is just, legal, proper and in accordance with law.
9. In view of the above discussion and reasons, the writ petition has no merits and the same is dismissed with no order as to costs. With the dismissal of the writ petition C.M. No,1261 of 2000 and C.M. No,1 of 2001, have become fructified. 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.