1. ' S. AHMED SARWANA, J.---The brief facts relating to this petition as culled from the documents filed with this petition and the Court files of Suit No,875 of 1998, IDBP v. Usman Harooni Poultry Feeds and others and Execution No,594 of 1999, IDBP v. Usman Harooni Poultry Feeds and others called from the Banking Court No,II, Sukkur and C.P. No, D-845 of 2000, Muhammad Ashraf and others v. IDBP and others called from the record room of this Court in respect of the dispute in question are as follows.
2. ' On or about 23-6-1988 Industrial Development Bank of Pakistan ("IDBP") provided financial facilities to (1) Usman Harooni Poultry Feeds Industries Private Limited ("the Company") on the guarantee of (2) Jamil Ahmed s/o Amir Hassan, (3) Shakil Ahmed s/o Jamil Ahmed, (4) Wakeel Ahmed s/o Jamil Ahmed, (5) Fazal-ur-Rahman s/o Ghulam Muhammad. On 21-12-1995 IDBP filed in Banking Court No,II, Sukkur, Suit No,875 of 1998 against the Company and the aforesaid guarantors, among others, for recovery of Rs,1,22,38,110.14 and for attachment and sale of the properties mortgaged by defendants Nos. 1 to 5 to secure the loan given to the Company, inter alia, by depositing title deeds of properties and executing memoranda of deposit of title deeds, inter alia, on 29-3-1989 and 6-6-1992 in confirmation thereof. Mr. Anwar Khan Tanoli, Advocate filed power on behalf of the defendants but did not file any application for leave to defend the suit and stated no instructions. In view of the said statement, the Banking Court issued fresh notice to the defendants but none appeared in spite of service. IDBP filed an affidavit in ex parte proof and consequently on 12-4-1999 the claim was decreed in the sum of Rs,1,22,38,110.14 with future mark-up at the latest rate prescribed by the State Bank and costs of the suit. On or about 20-9-1999 IDBP filed Execution No,594 of 1999 for recovery of the decretal amount, among others, by attachment and sale of the mortgaged properties.
3. ' It transpires that on 12-2-2000 Muhammad Ashraf and Shewak Babu filed an intervenor application under Order XXI, rule 58 read with section 151, C.P.C. Against the execution of the aforesaid decree. The decree-holder filed objections to the said application. Neither Ashraf and Shewak, the objectors nor their counsel appeared before the Banking Court on four dates when the matter was fixed for hearing of their objections and consequently on 26-6-2000 after hearing the arguments of the decree-holder the said application was dismissed. Thereafter, on 9-9-2000 Ashraf and Shewak filed in this Court C.P. No,D-845 of 2000 against IDBP, the company and Jamil Ahmed s/o Ameer Hussain, Shakil Ahmed and Wakil Ahmed both sons of Jamil Ahmed, Fazal-ur- Rehman and Banking Court No,II, Sukkur seeking, inter alia, the following reliefs:
(a) To declare that the impugned order dated 26-6-2000 passed by respondent No,7 (Banking Court No,1 in Execution No, 594 of 1999 on application under Order XXI, rule 58 read with section 151, C.P.C. Is illegal, void ab initio, without any lawful authority and of no legal effect.
(b) To remand the matter to the Banking Court No,1, Sukkur for disposal of the same after complete investigation into the petitioner's claim as envisaged by law.
4. ' The basis of the relief claimed was that the petitioners had purchased the property by way of a registered sale-deed dated 10-9-1999 from Nadeem Ahmed s/o Jamil Ahmed who had acquired title in the property bearing City Survey No,B-2876/1 admeasuring 66 sq. Yards (ground floor), situated in Bhutta Gali, Sukkur by way of an alleged gift deed from his father Jamil Ahmed on 28-1- 1987 at which time Nadeem Ahmed was a minor of 17 years and the gift had been received by the father on behalf of his minor son. The stamp paper on which the declaration had been inscribed was purchased in the name of one Muhammad Mairaj and the declaration had not been registered. They also produced an extract from property register of Sukkur according to which the property had been transferred in the name of Nadeem Ahmed. On scrutiny of the extract it transpires that the entry in the register was made on 5-12-1996. Ashraf and Shewak, the petitioners asserted that when they applied for mutation in the record of rights before the City Surveyor, Sukkur, they came to know that there was an entry of the charge of IDBP over the said property in respect of which a suit was pending before the Banking Court which had issued the order of attachment in Execution Application No, 594 of 1999 filed by IDBP. They added that they had filed an application under Order XXI, rule 58 read with section 151, C.P.C. As objectors on the ground that the property had been wrongly offered to IDBP as collateral security as they had purchased it from Nadeem Ahmed s/o Jamil Ahmed by a registered sale deed dated 10-9-1999 and as such the attachment was not warranted by law. IDBP filed a counter-affidavit to the aforesaid petition wherein they denied the assertions made by Ashraf and Shewak and stated that Jamil Ahmed the father of Nadeem Ahmed and the original owner had mortgaged his aforesaid property by way of equitable mortgage in favour of IDBP as security for the facilities advanced to the company prior to the alleged sale i,e, in 1999 and as such the question of any sale by Nadeem Ahmed to Ashraf and Shewak was fraudulent and not enforceable. For various reasons including that the entry with regard to the charge of IDBP over the property in question had been admitted by Ashraf and Shewak, this Court held that any transfer/sale or gift in favour of Nadeem and thereafter in favour of Ashraf and Shewak was, prima facie, fraudulent and fictitious, made with the intent to defeat the claim of IDBP, the attachment of the property was justified and warranted by law and dismissed C.P. No, D-845 of 2000, by judgment dated 10-10-2000. Neither Ashraf and Shewak nor Jamil Ahmad father of Nadeem filed an appeal to the Honourable Supreme Court and consequently the judgment achieved finality.
5. ' On 9-10-2000 Nadeem Ahmad filed in the execution proceedings, an application under Order XXI, rule 58 as an objector claiming that he was the owner of the property and was not a party in the suit. IDBP filed a counter-affidavit to the application on 2-11-2000. It transpires that Nadeem did not pursue his application and the Court finally dismissed the application for non-prosecution on 25- 6-2001.
6. ' It further transpires that on or about 9-10-2000 Agha Attaullah (petitioner herein) also filed an application under Order XXI, rule 103 read with section 151, C.P.C. In Execution No,594 of 1999 as an objector stating that the applicant and others were tenants in the property and paying rent under an agreement dated 28-9-1998 to the landlord, Nadeem Ahmed s/o Jamil Ahmed who had acquired title in the property by virtue of Gift Deed dated 28-1-1987 executed by his father Jamil Ahmed in his favour which had been incorporated in the record of rights in favour of Nadeem Ahmed by the City Surveyor, Sukkur. The applicant/objector added that he could not be dispossessed because Nadeem Ahmed was not a judgment-debtor in the proceedings who had given the premises on rent to him and that he could only be ejected or dispossessed under the provisions of Sindh Rented Premises Ordinance, 1979. The applicant/objector further submitted that on 7-10-2000 the Nazir of the Banking Court had come to the site with police force and attempted to dispossess the applicant from his shop but on the protest of the applicant they could not dispossess him and requested the Court not to eject him from his premises.
7. ' It also appears that on 7-10-2000, the Nazir of the Banking Court No,II visited the property in question to take possession of several shops situated thereon. He succeeded in taking possession of six shops but could not take possession of the seventh shop as the occupant thereof (Agha Attaullah) did not cooperate with him and went away after locking the shop. In view of the resistance by the objector/occupant to the taking of possession of Shop No,7, IDBP on 12-10-2000 filed an application under section 151, C.P.C. In the Banking Court seeking permission for the Nazir to break the lock of the shop as the occupant had defiantly gone away after locking it and it was not possible to take over its possession without such permission. The application was allowed by the Banking Court and the Nazir broke open the lock, made an inventory of the goods lying therein in the presence of witnesses and took possession of the premises.
8. ' On 23-10-2000, Agha Attaullah filed before the Banking Court another application under Order XXI, rules 100 and 101 read with section 151, C.P.C. Requesting the Court to order removal of the lock/seal put by the Nazir on the shop and order restoration of possession to him. IDBP filed a counter- affidavit to the application filed by Agha Attaullah and after hearing the counsel of both parties, the Banking Court by a detail order dated 7-11-2000 rejected his application.
9. ' Aggrieved by the order dated 7-11-2000 passed by the Banking Court No,II, Sukkur, rejecting his application under Order XXI, rules 103, 100 and 101, C.P.C., Agha Attaullah filed the present Constitutional Petition against (1) Banking Court Noll, (2) IDBP, (3) the company, (4) Jamil Ahmed,
(5) Shakil Ahmed, (6) Wakil Ahmed, (7) Fazal-ur-Rahman, (8) Nadeem Ahmed and (9) The State seeking, inter alia, the following relief:
(a) To declare that the impugned order of the respondent No,1, ejecting the petitioner from the shop in question under his occupation as bona fide and lawful tenant, are without lawful authority and of no legal effect, hence illegal, ultra vires and void ab initio, as the petitioner can only be ejected from the shops in question by the Rent Controller and the specified grounds under Rent Laws and not otherwise.
(b) To grant temporary injunction, restraining the respondent No,1 from further proceeding or taking any other step, in execution proceedings, pending there, till disposal of this petition.
(c) To direct the respondent No,1 to restore forthwith the possession of the shops in question alongwith all the goods and articles of the petitioner, which were actually lying therein.
10. ' A notice of the petition was issued to all the respondents including Nadeem Ahmed (respondent No,8), his father Jamil Ahmed (respondent No,4). Mr. Saleem Akhtar Buriro filed Vakalatnama on behalf of respondents Nos. 3 to 6 and 8. Nadeem Ahmed filed a counter-affidavit supporting the petitioner and stated that he had let out only one shop to the petitioner at the rent of Rs,150 per month vide agreement dated 28-9-1998. The Banking Court and IDBP filed counter-affidavits wherein they gave the brief history of the case and contested the validity and bona fide of the petitioner and the maintainability of the petition. At the time of arguments only the counsel of IDBP appeared and contested the proceedings.
11. ' Mr. Imdad All Awan, learned counsel for the petitioner, Agha Attaullah submitted as follows:
(i) The Banking Court committed grave illegality by not accepting the petitioner as a tenant of Nadeem Ahmed who was shown as the owner of the property in the extract from property register card which showed Nadeem as the owner of the premises.
(ii) That the petitioner had moved an application under Order XXI, rule 103 read with section 151, C.P.C. And was ejected from the shop without providing him an opportunity of hearing, he was thus condemned unheard which is against the principles of natural justice.
(iii) That the Banking Court acted unlawfully by allowing the Nazir to break open the lock and eject the petitioner from the shop premises as the same could not be done except under the provisions of the Sindh Rented Premises Ordinance, 1979, as he was a tenant of Nadeem Ahmed.
12. In reply Mr. Hafiz Usman Ghani, learned counsel for IDBP submitted as follows:
(i) The objections raised by the learned counsel for the petitioner had been earlier raised in C.P. No, D-845 of 2000 filed by Ashraf and Shewak in which Jamil Ahmed father of Nadeem Ahmed was a party wherein it was held that the gift by Jamil Ahmed to his son Nadeem Ahmed was fraudulent and was made to defeat the claim of IDBP.
(ii) The High Court had further held that the gift was made during the pendency of the proceedings and was hit by doctrine of lis pendens.
(iii) All acts of Nadeem Ahmed are fraudulent and consequently void ab initio.
(iv) The petition is mala fide. The petitioner has come with unclean hands and in the circumstances is not entitled to any relief under Article 199 which is discretionary in nature.
13. ' We have heard Mr. Imdad Ali Awan, learned counsel for the petitioner, Mr. Hafiz Usman Ghani, learned counsel for IDBP, have perused the record and proceedings of various connected matters referred to above and have considered the matter carefully. Our conclusion is as follows: Section 18 of the Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act, 1997 gives very wide powers to the Banking Court to execute the decrees passed by it. Section 18(I) of the Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act, 1997 reads as follows: "18. Execution of decree. ---(1) The Banking Court shall, on the written application of the decree- holder, forthwith order execution of the decree or order at any time seven days after the passing of the decree or order and, where the decree or order pertains to money, may direct that the amount covered by the decree or order, as the case may be, shall be recovered in accordance with the provisions of the Code of Civil Procedure, 1908, or any other law for the time being in force or in such other manner as the Banking Court may deem fit."
14. A simple reading of section 18(I) of the Banking Companies Act reproduced above shows that the provisions of C.P.C. Are not mandatory but are only directory in nature 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 indisputable that the Banking Companies (Recovery of Loans, Advances, Credits and Finances) 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 considered it fit to give greater flexibility and discretion to the Banking Court so that the claims of the banks may be recovered without undue delay.
15. ' It is an admitted position that the Banking Act is a special statute and the provisions of the special law prevail over the general provisions of C.P.C. Section 18 of the Banking Act recognizes this position and clearly states that the Court has the discretion to either follow the procedure laid down in C.P.C. Or follow any other mode that the Court may deem fit in the circumstances of the case.
16. ' Additionally, section 18(3) of the said Act reads as follows: "Where the judgment-debtor or any person acting on his behalf does not voluntarily give possession of the mortgaged property sold, or sought to be sold, by the banking company under subsection (2), the Banking Court on the application of the banking company, or the purchaser shall put the banking company or, as the case may be, the purchaser, in possession of the mortgaged property in any manner deemed fit by it."
17. From a reading of the aforesaid subsection it appears that where the judgment-debtor or any person claiming, through the judgment-debtor does not voluntarily give possession of the mortgaged property, the Banking Court has the power to put the banking company or the purchaser of the premises in possession of the mortgaged property in any manner deemed fit by it. In the present case, the petitioner was not a tenant of Jamil Ahmed, the owner of the property, but claimed to be the tenant of his son Nadeem Ahmed who had acquired the property by way of a declaration of gift which, as stated above, was declared to be fraudulent by this Court in C.P. No, D-845 of 2000 in which Jamil Ahmed was a respondent.
18. The petitioner did not produce any documentary evidence to show that he was a lawful tenant of Jamil Ahmed the lawful owner of the premises and that he had taken the property prior to the commencement of litigation by IDBP except a copy of the Extract from Property Register Card issued by the City Surveyor, Sukkur. The said document read in light of the declaration of gift by Jamil Ahmed clearly shows that Nadeem Ahmed, who was a minor of 17 years at the time of the alleged gift had acquired the property from his father Jamil Ahmed by way of an oral gift dated 28-1-1987. The Gift Deed was not registered with the Registrar of Conveyances. The stamp paper on which the deed is printed was not purchased by Jamil Ahmed or his son Nadeem Ahmed but bears the name of "Muhammad Meraj Ahmed" without mentioning his father's name which creates doubt about its authenticity. It is common knowledge that back dated documents can be easily procured in this country. Moreover, no document was produced to show that any step was taken by Jamil Ahmed, the father or his son Nadeem Ahmed to have the gifted property transferred in the name of Nadeem Ahmed when he became a major in 1988. If the gift were bona fide, Jameel Ahmed the father or his son Nadeem Ahmed would have taken proceedings to record the change in the Property Register of Excise and Taxation Department maintained under the West Pakistan Immovable Property Tax Act, 1958, Hyderabad. Electricity Supply Corporation, Sui Southern Gas Company and the Telephone Department. The copy of the Kirayanama (Tenancy Agreement) produced by the petitioner written on a Stamp Paper of Rs,50 was purchased on 25-9-1998 in the name of the petitioner which clearly shows that the alleged tenancy was created by Nadeem Ahmed was not the owner during the pendency of the proceedings before the Banking Court. It is, therefore, apparent that this document was made to avoid the execution of the decree obtained by IDBP against Jamil Ahmed.
19. According to the documents on record judgment-debtor No,1 first obtained financial facilities in 1988, continued to enjoy the same until 1995 and did not liquidate the liabilities within the agreed time as a result of which the Bank was constrained to file the suit on 21-12-1995, inter alia, for recovery of money and for attachment and sale of the mortgaged properties. More than 12 years had passed from the time the financial facilities had been provided and more than seven years had passed since the filing of the suit and no payment had till then been made by the judgment- debtors to the decree-holder. To meet the ends of justice, the decree was required to be executed expeditiously so that recovery could be made without delay. Consequently, the order of attachment and sale of the mortgaged properties without strictly following the procedure provided in Order XXI and following the discretionary powers under section 18 of the Banking Companies Act, 1997 was justified in the circumstances of the case. It cannot be denied that Jamil Ahmed, father of Nadeem Ahmed who had mortgaged the property by deposit of Title Deeds vide Memo. Dated 29- 3-1989 had ample opportunity to raise any objection and insist upon the validity of the gift in C.P.
20. No,D-845 of 2000 but he did not do so apparently with the ulterior motive to create circumstances to enable his son or any person claiming under him to raise such objection at the time of execution of the decree. It is also apparent from the facts stated above that Jamil Ahmed who had guaranteed payment of the loan of judgment-debtor No,1 was the owner of the property which was clearly specified in the plaint as mortgaged property over which the decree-holder was claiming an interest and right as a mortgagee and, therefore, it could not be validly transferred during the pendency of the proceedings in view of the bar contained in section 52 of Transfer of Property Act, 1882. The documents filed by Nadeem Ahmed do not show that he acquired title in the property in good faith and for valuable consideration. The transfer was, prima facie, collusive and was made to deprive the decree-holder from recovering their lawful dues. If such practice is allowed all bank borrowers will transfer to third parties their mortgaged properties with impunity in order to deprive the mortgagees of the benefit of the mortgage security. The argument of Mr. Awan, learned counsel for the petitioner, that the latter had filed an application under Order XXI, rule 103 read with section 151, C.P.C. Before the Banking Court for recalling the order of dispossession from the shop was rejected without hearing him and is violative of the principles of natural justice is neither bona fide nor warranted by law and does not take into the account the provisions of section 18 of the Banking Act, 1977 as well as the circumstances of the case. The application under Order XXI, rule 103 read with section 151, C.P.C. Filed by the petitioner states that the Banking Court may be pleased to recall the order of dispossession of the applicant/tenant from the shop of property bearing No,B-2876 situated in Bhutta Gali. In the application the petitioner had stated that he was a tenant of the property pursuant to an agreement dated 28-9-1998 executed between Nadeem Ahmed and the petitioner.
21. The learned Banking Court rejected the application by the impugned order dated 7-11-2000, inter alia, on the ground that the High Court in C.P. No,D-845 of 2000, had already held that the property had been mortgaged by the original owner Jamil Ahmed and that the owner had fraudulently made the fictitious gift and sale in order to defeat the claim of the Bank. The High Court in the said C.P. Had also confirmed that the Banking Court under section 18 of the Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act, 1997 was fully empowered to execute the decree and give possession of the property in such manner as it deemed fit. No appeal against the judgment was filed, it achieved finality and is now binding on every person. We are in full agreement with the reasoning of the Banking Court and do not find any illegality in the procedure adopted.
22. We may add here that the powers of the High Court under Article 199 of the Constitution are discretionary and depend upon the facts and circumstances of each case. The power is principally available to ensure that justice is done in accordance with law, equity and good conscience. In doing so, the Court also looks at the conduct of the parties. In the present case, this Court has already held that the gift of the mortgaged property by Jamil Ahmed in favour of his son Nadeem Ahmed who entered into an agreement of tenancy with the petitioner was fraudulent and was made to defeat the claim of the Bank. It was also held that the transfer of title in favour of Nadeem Ahmed in the record of Sukkur Municipal Corporation was made during the pendency of the suit which is contrary to provisions of section 52 of the Transfer of Property Act, 1882. Several persons had filed objections taking various pleas against the execution of the decree by IDBP which were all rejected by the Banking Court and the High Court for valid reasons. The petitioner is claiming title through Nadeem Ahmed s/o Jamil Ahmed which title has been declared fraudulent by this Court.
23. The Court will not allow any person to claim any interest in any property through any agreement the foundation of which is based on fraud. In the circumstances of the case stated above, the petitioner in our considered opinion is clearly not entitled to any discretionary relief available under Article 199 of the Constitution.
24. ' In view of the above discussion, it is established that the petitioner's claim is not bona fide, he has not come to this Court with clean hands, the judgment of the Banking Court is proper and the petitioner is not entitled to any relief whatsoever. The petition is accordingly dismissed with costs.