1. Brief facts out of which the present writ petition arises are that petitioner's husband secured a loan from respondent No.2 under the title of Ittefaq Traders (Reg. Firm) amounting to Rs. 50,00,000 in the year 1992 and agreement was also executed between the parties. Respondent No.2 filed a suit for recovery of Rs. 75,57,521.25 on 26-2-1998 before Banking Court No. 11. Respondent No. 1 decreed the suit vide judgment and decree, dated 22-9-1999 amounting to Rs. 75,745. Petitioner being aggrieved filed R.F.A. No. 151 of 1999 before this Court which was dismissed for non-prosecution vide order, dated 13-9-1999. Respondent No.2 filed execution petition before respondent No. 1. The Property of the petitioner bearing No.69/1 Abid Majeed Road Lahore Cantt., was put on auction on 8-2-2001 by respondent No. 1 The Court auctioner sold out the property amounting to Rs. 62,00,000 only whereas the property in question is worth of at least Rs. 1,16,00,000 as per the assessment of the respondent No.2. The rate qua the property of the area is mentioned by the Deputy Commissioner Rs. 1,53,000 per Marla but the Court auctioner mentioned the reserved price in the proclamation as 50,00,000. Petitioner being aggrieved filed objection petition before respondent No. 1 for setting aside the auction under section 18(6) of the Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act, 1997 on 13-3-2001. Respondent No. 1 passed the order on 26-3-2001 in the following terms:-- "If objection to the confirmation of the auction are to be made the objector will have to pay 20% of the bid money in Court i.e. Rs. 12,40,000."
2. Petitioner being aggrieved filed this writ petition.
2. Learned counsel for the petitioner submits that petitioner is old lady. Petitioner is living in the property in question. Petitioner could not raise 20% of the bid money in order to get hearing in the Court on her objection petition. He further submits that condition imposed by respondent No. 1 which tentamounts to denial of right of hearing to the petitioner which is not in accord with the principle of justice and fair-play. He further submits that auction was held in violation of the mandatory provisions of law as the reserved price was mentioned at a very low level as compared to the market value prevailing qua the property similarly situated in the area. He further submits that there is no condition mentioned under section 18(6) of the aforesaid Act that petitioner can be heard subject to deposit of 20% of the bid money. He further submits that respondent No. 1 has passed the impugned order by misinterpreting the provisions of aforesaid Act and provisions of C.P.C. He further submits that auction was held malafidely in violation of Order 21, Rule 90, C.P.C. He further submits that respondent No. 1 did not advert to section 18(6) of the aforesaid Act which begins with the following words:-- "Notwithstanding anything contained in the Code of Civil Procedure, 1908 or any other law for the time being in-force."
3. He further submits that provisions of C.P.C. Are not applicable on the well---known principle that special law excludes the general law. In support of his contention he relied upon the following judgments:-- Hudaybia Textile Mills' case PLD 1987 SC 512 and Messrs Ajma Corporation's case 2000 CLC 1245.
3. I have given my anxious consideration to the contentions of the learned counsel for the petitioner and perused the record myself. Petitioner's counsel relied upon Habib Bank Ltd.'s case 2000 CLC 1425, but did not support the cause of the petitioner and the impugned order is in accordance with this judgment. The relevant portions are reproduced hereunder,-- "A simple reading of section 18(1) of the Banking Companies Act reproduced above shows that the provisions of C.P.C. Are not mandatory but are only directory and the Court has been given the discretion to execute the decree in accordance with the provisions of C.P.C. Or in any other manner it may deem fit. It is also an admitted position that the Banking Companies (Recovery of Loans)
4. Act, 1997 was enacted because the previous legislation in the field was not found effective for recovering the claims of the banks expeditiously and keeping in view the delays that were occurring the Legislature thought it fit to give greater flexibility and discretion to the Banking Courts so that the bank claims may be recovered without undue delay.
5. It is, however, clarified that under section 18(5) of the Banking Companies Act, 1997, when the mortgage properties are sold, the bank shall, before concluding the sale, give an opportunity to Mst. Naureen and Mst. Kaneez Fatima to purchase their properties at a matching price within thirty days of such notice to them."
6. Similarly aforesaid case of Hudaybia Textile Mills's PLD 1987 SC 512 does not support the cause of the petitioner. The relevant portions are reproduced hereunder for ready reference:-- "While exercising its civil jurisdiction the special Court has to follow the procedure laid down in regard to the suits in the C.P.C. Except to the extent any contrary provision is made in the special enactment. Therefore, wherever the provisions of the Ordinance are repugnant to the provisions of the C.P.C., the former will override the latter .....
7. Although the aforesaid decision turns on the provisions of the C.P.C. The general principle laid down therein that once a sale has been effected a third party interest intervenes which cannot be disregarded would be applicable in the present case. It cannot, therefore, be argued that the auction purchaser had no interest whatsoever before confirmation of the sale and the Court could disregard the same by merely looking at the arrangement made between the decree-holder and the judgment-debtor about the satisfaction of the decree."
8. The aforesaid proposition was considered by the Honourable Supreme Court in Pakistan Fisheries Ltd. Karachi's case and laid down the following principles:-- "The combined reading of these two sections demonstrates that such provisions of the Code of Civil Procedure which are not in conflict with the Ordinance can well be enforced by the Special Court."
9. The Division Bench of this Court has also considered the aforesaid proposition in Brig. Mazhar-ul- Haq's case PLD 1993 Lah. 706 and laid down the following principle:-- "Sections 4(I), 141, C.P.C. Sections 3 and 6(a) of the Ordinance, if read together, clearly demonstrate that while exercising civil jurisdiction the Special Court has to follow the procedure laid down in C.P.C. And for the purpose of execution of the decree it can adopt Order 21 and allied provisions of the said Code. Of course, if there is conflict between the provisions of C.P.C. And the Ordinance, the latter shall prevail. "
10. The Karachi High Court has also considered the aforesaid proposition in Dost Muhammad's case and laid down the following principle:-- "Further, for execution of the decree, by section 18 of the Banking Companies Act, 1997, the Court has been empowered to follow the procedure laid down in Civil Procedure Code, 1908 or any other manner as the Banking Court may deem fit. If the arguments advanced by the learned counsel are upheld the Court would get flooded with objections every time an execution application is filed, thus, there would be no end to litigation' and the purpose of the Banking Companies Act, 1997 would be frustrated. The Legislature being cognizant of the fact that C.P.C. Which was enacted in 1908 had not been amended frequently like the English Civil Procedure Rules to keep pace with the changing times and challenges, that there are innumerable shortcomings in the Code and that the requirements of execution are too cumbersome and time consuming under section 18 of the Banking Companies Act, 1997 granted to this Court special powers and wide discretion to follow such procedure which would ensure expeditious recovery of Bank loans without doing injustice to any party. It is, therefore, not mandatory to follow the procedure laid in Order XXI, C.P.C. If it comes in the way of expeditious disposal and speedy recovery and this Court is free to follow any procedure which it deems fit in the circumstances of the case for recovery of bank loans so long as it does not violate the fundamental rights guaranteed by the Constitution and the principles of natural justice."
11. Learned counsel for the petitioner failed to point out any provisions of Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act, 1997 are in conflict with the provisions of Civil Procedure Code where the provisions of the Banking Act are silent qua certain situation then provisions of the general law are applicable by virtue of section 141, C.P.C. Read with section 7(2) of the Act which is to the following effect:-- "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)."
12. It. Is settled principle of law that the Courts are bound to do justice and not allow technicalities to come in their way and deprive the decree-holders of the fruit of their decrees.