This appeal is directed against a judgment and order of a learned Single Judge, dated 24-8-1998 whereby on an application preferred by the respondent satisfaction of the decree was recorded.
Briefly the fact appear to be that the appellant bank had filed Suit No.685 of 1994 for recovery of Rs.106,433,029 together with 8% per annum interest from the date of filing of suit till the decree which was decreed by learned Single Judge vide judgment and decree, dated 3-4-1997. After the aforesaid judgment and decree, however, the State Bank of Pakistan promulgated an Incentive Scheme for settlement of outstanding debts of the Banks whereby substantial concessions in terms of interest were provided to those who settled their debts by given date. The appellant worked out the amount payable by the respondent-judgment debtor in terms of the Scheme and called upon the latter to make payment of Rs.57,750 to avail the benefit of the Incentive Scheme.
The respondent deposited the above amount on 12-2-1998, apparently after such deposit the appellant moved a statement for revising the scheme/decision but upon an application made by the respondent the learned Single Judge exercising Banking Court jurisdiction recorded satisfaction of the decree by the impugned order, dated 24-8-1998.
2. The main thrust of the appellant's contention is that the respondent in fact had three accounts with the appellant's bank and the payment made only related to one of them in terms of the State Bank of Pakistan Scheme. Otherwise according to the learned counsel, there could be no conceivable question of recording satisfaction of a decree running into millions of rupees by mere payment of a few thousands. The appeal, however, is admittedly barred by limitation and an application for condonation of delay was filed alongwith the memo. of appeal. Mr. Shahenshah Hussain learned counsel for respondent No.1 pressed the preliminary objection as to its maintainability. We considered it appropriate to hear learned counsel on the preliminary point.
3. Mr. Gulzar Ahmed learned counsel for the appellant vehemently argued that the order in question had been obtained through fraud and misrepresentation and was, therefore, a void order and there could be no question of limitation against such order. He relied upon, inter alia, judgments of the Honourableble. Supreme Court of Pakistan in Ali Muhammed v. Hussain Bux and others PLD 1976 SC 37. S. Sharif Ahmed Hashmi v. Chairman, Screening Committee 1978 SCM R 367, Rehmat Bibi v. Punhoo Khan 1986 SCMR 362 and Malik Khawaja Muhammed and others v. Murdman Babar and others 1987 SCM R 1543 to contend that a void order was a nullity in law and no limitation applied for setting it aside. He further contended that an order obtained by fraud and misrepresentation was also a void order and therefore the question of limitation was not attracted.
We asked learned counsel that if the order was premised upon fraud and misrepresentation, whether he had moved the Court passing the same under section 12(2), C.P.C., to which he replied in the affirmative but submitted that he was not quite certain whether a Banking Court functioning under the Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act XV of 1997 had the jurisdiction to grant relief in terms of section 12(2), C.P.C.
4. Indeed, there could be cavil with the well-established principle laid down in several weighty pronouncement of the Honourable Supreme Court to the effect that statutes of limitation do not operate in respect of void orders which are nullity in law. The second part of learned counsel contention that an order obtained through fraud and misrepresentation is also a void order, however, in our opinion needs to be examined a little more carefully. As rightly observed by late Durab Patel, J. in S. Sharif Ahmed Hashmi's case cited by Mr. Gulzar Ahmed himself, the expression "void order an orders without jurisdiction" are overworked expression and have been subjected to diverse judicial interpretation which had hardly further the development of law. It may, therefore, be appropriate to examine the precedents cited by learned counsel to consider whether the impugned order can be classified as a void order to make the statutes of limitation in applicable. In Ali Muhammed's case PLD 1976 SC 37, a Deputy Settlement Commissioner had passed an order transferring a Haveli to the appellant which was occupied by refugees from Jammu and Kashmir and he had no jurisdiction ,to order transfer of such property. It was in this context that the Honourable Supreme Court held that when the order which was, in excess of the power of the authority making it, was a nullity in law and did not even require to be set aside formally. In Rehmat Bibi's case 1986 SCMR 362, it was held that when an order was passed without notice to a party whose presence was otherwise necessary, such order would be nullity in law and no question of limitation would arise. Similarly in the case of Malik Khawaja Muhammed 1987 SCM R 1543 a suit under, the Civil disputes (Shariat Application) Regulations was decided by the Kazi without summoning the parties and their lordship held the decree to be a nullity against which no limitation applied.
5. In the instant case admittedly the impugned order was passed by a Court competent to decide the application in the presence of the parties. Indeed, an order obtained through fraud or misrepresentation could always be set aside but the law provides a clear mode for doing so. It is equally important to keep in view that their lordship have consistently held that limitation does not run against an order which is nullity in law and does not require to be formally set aside. At the same time when the law provides a mechanism for setting aside an order premised on fraud or misrepresentation it proposes that such order create legal consequences and must, therefore, be set aside in proper proceedings under section 12(2), C.P.C. or through a separate suit as was the case prior to the enactment of the above statutory provision. We are, therefore, unable to agree With Mr. Gulzar Ahmed that the impugned order is a void order in the sense that no statute of limitation would apply against it.
6. A reading of the precedents would indicate that there is a clear distinction between illegal and void orders though the line of demarcation is not always precisely drawn. An illegal order must obviously be set aside through appropriate proceedings before the proper forum presented within the time stipulated by statutes of limitation. A void order, however, has been treated to be one which could even be ignored and, therefore, the Courts appear to have proceeded to hold that statutes of limitation might not be allowed to stand against such order. Nevertheless as observed by the Honourable Supreme Court in S. Sharif Ahmed Hashmi's case, a void order is only a type of an illegal order which is so illegal there does riot exist in the eye of law. Since section 12(2), C.P.C. requires that an order obtained by fraud or misrepresentation can be set aside by the Court which passed it, it presupposes that it may be necessary to do so and has to be given effect, unless it is set aside. We are of the opinion that such an order cannot be described as nullity in law.
7. As regards Mr. Gulzar Ahmed's doubts as to the maintainability of an application under section 12(2), C.P.C. it may be observed that under section 7 of the Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act, 1997, a Banking Court has all powers vested in a Civil Court under the C.P.C. in the exercise of its civil jurisdiction. Section 3 provides that provisions of this Act are in addition to and unless expressly provided not in derogation of any other law for the time being in force. The recent trend of judicial precedent indicates that these provisions are not confined to civil suit before Courts of general jurisdiction strictly covered by the C.P.C. but to different proceedings of a civil nature. In the cases of Mian Muneer Ahmed v. United Bank Limited PLD 1998 Kar. 278 and Tawakal -Export Corporation and others v. Muslim Commercial Bank and another 1997 CLC 1342 two Division Benches of this Court have held that the provisions of section ,12(2), C.P.C. are applicable to decrees passed under the Banking Companies (Recovery of Loans)
Ordinance, 1979 and the Banking Tribunal Ordinance, 1984 . No provision of the 1997 Act (which replaces these two statutes) has been pointed out to indicate that the principle laid down in the above cases would not apply to decrees under this Act. We therefore find Mr. Gulzar Ahmed apprehension to be misconceived.
8. Nevertheless pressing his application for condonation of delay Mr. Gulzar Ahmed argued that the appellant was initially under a bona fide impression that an appeal against an order recording satisfaction of a decree did not lie to a Division Bench of this Court but the order could only be assailed before the Honourable Supreme Court under Article 185 of the Constitution. In view of the fact that section 21 permitted appeals in limited cases whereas the jurisdiction of Banking Court was exercised by the High Court and not a persona designata in terms of section 4. Mr. Shahenshah Hussain on the other hand argued that there could be no question of an appeal to the Honourable Supreme Court in view of the law declared in Bolan Bank Limited v. Capricon Limited (1998 SCM R 1961).
9. Though Mr. Shahenshah Hussain appears to be right as a matter of law we could indeed exercise our discretion to condone the delay on being satisfied that the appellant was under a bona fide though wrong impression as to the correct legal position. Nevertheless since the appellant has already chosen to avail a remedy which, in our considered opinion is available to him, we do not think that any occasion to exercise such discretion arises.
10.In view of the above, we would dismiss this appeal in-limine together with listed applications leaving the appellant free to pursue his remedy under section 12(2), C.P.C. 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.