' MIAN HAMID FAROOQ, J.---This first appeal, filed under section 9 of the Banking Tribunals Ordinance, 1984 (since repealed) proceeds against judgment and decree, dated 23-1-1994, whereby the then Banking Tribunal passed a decree for recovery of Rs,7,59,701.10 in favour of the respondent-Bank and against the appellant.
2. Brief facts leading to the filing of the present appeal are that pursuant to filing a suit for recovery of Rs,15,81,793.32 by sale of mortgaged properties, by the respondent-Bank against the appellant and respondents Nos.2 to 6, before the then Banking Tribunal (since defunct), the defendants in the suit were issued show-cause notices, as prescribed under section 6(2) of the Banking Tribunals Ordinance, 1984 and thereupon the defendants in the suit filed reply to the show-cause notices.
However, after hearing the arguments, the then Banking Tribunal, finding the reply to the show- cause notices filed by the appellant, as insufficient, rejected the same and proceeded to pass a decree for the recovery of Rs,7,59,701.10 as against the appellant with costs and also ordered that in the first instance the decree be executed by sale of mortgaged property of the appellant, hence the present appeal.
3. In this case the judgment and decree was passed by the then Banking Tribunal on 23-1-1994 and the appellants filed the present appeal within the stipulated period, prescribed under the law, inasmuch as the decretal amount was deposited by the appellant as per the requirement of section 9 of the Banking Tribunals Ordinance 1984. Subsequently this Court in a case reported as Messrs Chanab Cement Product Private Limited and others v. Banking Tribunal, Lahore and others (PLD 1996 Lahore 672) while disposing of various Constitutional petitions, wherein the decrees passed by the learned Banking Tribunal were challenged, declared certain provisions of Banking Tribunals Ordinance, 1984, as un Constitutional and the notifications appointing Presiding Officers of the Banking Tribunals, issued under the Banking Tribunals Ordinance, 1984, were also declared un Constitutional and were thus quashed. However, this Court, in view of para.12 of the afore noted judgment observed that the declarations made shall not effect the cases past and closed or invalidate the judgment and decrees which have become final.
4. Subsequently a question arose as to what is the effect of the observations made by Full Bench of this Court in para.12 of the judgment of Messrs Chanab Cement Product's case and the Full Bench of this Court while deciding Writ Petition No,12374/99 (Syed Farasat Ali Shah v. Allied Bank of Pakistan) and other connected petitions came to the following conclusions:- "After having examined the case-law, as noted above, we have come to the conclusion that the consistent view of this Court as well as the Supreme Court of Pakistan is that when a decree passed by a Banking Tribunal was not challenged by way of instituting the appeal and the same has been called in question only through the filing of a writ petition, which was disposed of by judgment rendered by this Court in Chenab Cement Product, in that case the decree passed by the Banking Tribunal is saved, would be considered to be past and closed case and decree has become final by virtue of para.12 of the judgment rendered in the aforenoted case of Chenab Cement Product. However, if any decree passed by the Banking Tribunal has been called in question through the filing of appeal and simultaneously by way of filing the writ petition and the latter has been disposed of by Chenab Cement Product's case, in that event the said decree would not be covered within the scope of para.12 of judgment of Chenab Cement Product's case, would not fall within the term 'past and closed cases' and, thus, the decrees passed deemed to be set aside?
5. Applying the aforesaid yardstick to the present case, as the judgment and decree was passed before the date or rendering of the aforesaid judgment in Chenab Cement Product's case viz. 21-7- 1996 and the same was challenged through the filing of present appeal, therefore, the decree under appeal is not saved, does not fall within the terms "past and closed cases" within the meaning and scope of para.12 of the judgment in the afore noted case Chenab Cement Product and thus the decree shall be deemed to be set aside.
6. In view of the above, the present appeal stands accepted and the judgment and decree, dated 23-1-1994 passed by the then Banking Tribunal is set aside with no order as to costs. The result would be that the suit for the recovery of Rs,15,81,793.32 titled National Bank of Pakistan v. Muslim Corporation and others (Suit No,6401 of 1989) shall be deemed to be pending before the newly- constituted Banking Courts established under section 5 of the Financial Institutions (Recovery of Finances) Ordinance, 2001 and the said Banking Court shall now decide the suit afresh after hearing the parties and in accordance with the provisions of Financial Institutions (Recovery of Finances) Ordinance, 2001.
7. Before parting with the judgment, as the suit was instituted in the year 1989, therefore, the learned Banking Court, Lahore, is directed to decide this suit preferably within a period of three months from the receipt of the judgment. Office is directed to immediately transmit files record to the Administrative Judge Banking Court, Lahore, who may entrust the case to any other Banking Court according to its schedule.