' MAULVI ANWARUL HAQ, J.---In a suit filed by respondent No,2 against, inter alia respondents Nos.3 and 4, the learned Judge, Banking Court passed a decree for recovery of Rs,14,43,369 in favour of the respondent-Bank and against the said judgment-debtors on 31-7-1982. The decree was put into execution on 15-9-1982 and the suit house was attached on 19-9-1982. After the attachment the sale proceedings had commenced when one Izzat Khalil filed an objection petition alleging that the property was agreed to be sold to him vide agreement of sale, dated 7-9-1982. Sometime after filing of the said objection petition the matter stood transferred to this Court. The objection petition was heard and dismissed by this Court vide order, dated 15-10-1985. Thereafter, the suit property was sold on 18-12-1985 in favour of respondent No,4 who was declared to be the higher bidder. The appellant filed C.M. No,164-B of 1985 in the said Execution Application No,22-B of 1983. In this application the appellant alleged that Sadaqat Saeed Malik, respondent No,1 had agreed to sell the house to him for a consideration of Rs,10,50,000; that he paid Rs,3,00,000 to him against receipt, dated 2-9-1979; that the sale-deed in favour of Sadaqat Saeed was registered on 5-9-1979 and thereafter he executed an agreement to sell, dated 7-9-1979 in favour of the appellant, against a total payment of Rs,7,00,000 and possession was delivered. With these pleas he sought setting aside of the auction of the property. The application was resisted by the decree-holder Bank denying the said allegations. On 17-5-1986 learned counsel for the appellant made a statement that he would not be pressing the said application. On 8-7-1986 when, amongst others, learned counsel for the appellant was present the sale was confirmed in favour of respondent No,4 and sale certificate was ordered to be issued. On the same day C.M. No,8-B of 1986 filed by respondent No,4 for delivery of vacant possession of the property sold to him was taken up. It was noted that the learned counsel for the appellant has pointed out that in a suit for specific performance filed by the appellant, pending in a Civil Court at Lahore stay against delivery of possession of the property had been granted. The application was disposed of with the direction that subject to any order that may have been passed by any competent Court, possession of the auctioned property may be delivered to the successful bidder.
2. On 6-2-1986 the present suit out of which this R.F.A. Has arisen was filed by the appellant against the respondents. In the plaint it was stated that suit house was owned by one Mst. Ghulam Sakina Begum who agreed to sell the same to respondent No,1 for a consideration of Rs,9,70,000 vide an agreement executed on 4-8-1979; that respondent No,1 had no sufficient funds and approached the appellant and made an offer to sell the said house in his favour for a consideration of Rs,10,50,000 that the offer was accepted and sum of Rs,3,00,000 was paid by the appellant to respondent No,1 vide receipt, dated 2-9-1979 promising to pay another sum of Rs,4,00,000 upon the execution of a proper agreement and delivery of physical possession; that sale-deed was executed by Mst. Ghulam Sakina in favour of respondent No,1 and it was registered on 5-9-1969; that on 7-9-1979 respondent No,1 executed an agreement to sell in favour of the appellant acknowledging receipt of total amount of Rs,7,00,000 and delivered the physical possession of the suit house to him and that he is continuing in possession; that it was a term of the agreement to sell, dated 7-9-1979 that the balance amount of Rs,3,50,000 would be paid by the appellant to respondent No,1 at the time of registration of sale-deed. According to the plaint the sale-deed was not registered as respondent No,1 had gone abroad; that respondent No,1 was contacted by the appellant on his visit to Pakistan in April, 1982 whereupon a fresh agreement to sell was executed by him in his favour on 12-4-1982 with a promise to execute the sale-deed and to get it registered on his next visit. Then the appellant abruptly stated that he came to know that the property is being auctioned on 18-12-1985 and that it stands attached in execution of the ex parte decree, dated 31- 7-1982 in the suit filed by respondent No,2; that despite some motion made by the appellant the auction was held and respondent No,4 purchased the property; that respondent No,4 had the knowledge of the agreement of sale between the appellant and respondent No,1 and of the fact that the appellant is in possession. It was then stated that respondent No,1 having sold the property in favour of the appellant vide document, dated 2-9-1979, 7-9-1982 and 12-4-1982 had no authority to mortgage the property with respondent No,2. It was also alleged that the title documents had not been deposited by way of equitable mortgage vide memo. Executed and signed on 15-9-1979 on behalf of respondent No,3; that the property did not belong to the said Company; that the agreement was executed in favour of the appellant before the deposit of title deeds by way of equitable mortgage on 15-9-1979. He then stated that the auction in favour of respondent No,4 pursuant to execution of decree passed against respondent No,3 is ineffective upon the rights of the appellant. With these averments he sought a decree for specific performance of the said agreement. He also sought a permanent injunction restraining respondent No,4 from claiming any right in the suit property on the basis of auction made in execution of the decree.
3. The learned That Court issued notice in response whereto only respondents Nos.2 and 4 put in appearance. It appears that in the first instance the matter of temporary injunction prayed for by the appellant was taken up and this application was dismissed vide order, dated 5-11-1986.
Thereafter, written statements were filed by the said respondents Nos.2 and 4. In these written statements the said contents of the plaint were denied. Objections were raised in both the written statements as to the competency and maintainability of the suit; that the suit is barred by the provisions of Order XXI, rules 62 and 103, C.P.C. And that the Civil Court has no jurisdiction to entertain and try the suit. This latter objection was further elaborated by leave of the Court by respondent No, 4 in the amended written statement filed on 28-7-1990, wherein it was stated that respondent No,4 has purchased the property in the execution of a decree and the jurisdiction of the Trial Court would be barred under the provisions of Banking Companies (Recovery of Loans)
Ordinance, 1979. Another objection raised was that the suit was barred under Order XXIII, Rule 1, C.P.C. In view of the fact that the learned Trial Court had decided this matter on the said preliminary objection we do not deem it necessary to dilate on the defence put up by the said respondents in their respective written statements on the merits of the case. Suffice it to say that it was impressed that the suit is mala fide and filed by the appellant in collusion with the judgment- debtors in the said case filed by respondent No,2 as also the said Izzat Khalil referred to by us above, while giving some details of the origin of present litigation. It was also stated that the property was attached in the first instance and notice of attachment was affixed on the property and the then Izzat Khalil's objections remained pending for a number of years. It was then ordered to be sold and proclamations were issued on the same address and notice of sale was also pasted. However, it was only when the sale in execution had been completed that the appellant in the first instance intervened in the course of execution proceedings and when the said contesting respondents put in a defence, withdrew the same. Be that as it may, the learned trial Court framed the issues arising out of the pleadings of the available parties on 18-4-1989. On 12-10-1989 statement of one Akhtar Ali Qazilbash, Advocate was recorded as P.W.1 On 27-1-1990 respondent No,4 filed an application praying for the rejection of the plaint under Order VII, rule 11, C.P.C. Staling that the suit is barred by law. The said prayer was made primarily with reference to the proceedings that had taken place in the course of the execution application in juxtaposition to the contents of the plaint and it was asserted that the trial Court would be debarred from calling in question the said proceedings under the provisions of the said Banking Companies (Recovery of Loans) Ordinance, 1979. The appellant filed a written reply on 1-3-1990 praying for the dismissal of the said application. The learned trial Court heard the parties and proceeded to reject the plaint vide order and decree, dated 6-10-1990.
4. The appellant in this case is represented by Mian Nisar Ahmad, Advocate while respondent No,4 is represented by Syed Zamir Hussain, Advocate. It was reported that the said respondent No,4 had died during the pendency of this appeal. Syed Zamir Hussain made efforts to locate the L.Rs, of the said deceased respondent but was unable to do so. He expressed difficulty in pursuing further with the case in the absence of instructions from the L.Rs, of his deceased client. We checked up the trial Court record to locate the list of L.Rs, if any, which respondent No,4 was required by law to file alongwith his written statement but no such list had been filed. In view of the amendment of Order XXII, rule 4, C.P.C. Effected by Law Reforms Ordinance, 1972 we have opted to proceed with the hearing of this R.F.A. On our request Syed Zamir Hussain, Advocate is prepared to assist us in the course of hearing of this appeal on behalf of respondent No,4.
5. Mian Nisar Ahmad, learned counsel for the appellant contends that the pleadings of the parties were complete, issues had been framed and recording of evidence was in progress when the plaint was rejected by the learned trial Court. According to the learned counsel in the said circumstances the learned trial Court would not be having lawful authority to reject the plaint.
Further contends that the plaint of his client on its plain reading would not be barred by law as held by the learned trial Court and as such no lawful grounds was available for the rejection of the plaint. Relies on a judgment of the Supreme Court of Pakistan in the case of Mohiuddin Molla v. The Province of East Pakistan and others (PLD 1962 SC 119) to assert that notwithstanding the fact that respondent No,4 had purchased the house in an auction held in execution of a decree, his client would be within his right to seek enforcement of the contract entered into with him by the judgment-debtor. Also seeks protection of section 53-A of the Transfer of Property Act, 1882, relying upon the judgment in the case of Fazla v. Mehr Din and 2 others (1997 SCM R 837). Referring to the reasons forwarded by the learned trial Court for rejecting the plaint, which primarily emanate from Order XXI, rule 103, C.P.C. Argues that the provisions of C.P.C. So far as they regulate the execution of a decree might have applied but the said provision of the Code barring a suit would not apply.
Relies on the case of Kishwar Jehan and 2 others v. The Muslim Commercial Bank Ltd. (1988 M LD 596). Syed Zamir Hussain, Advocate, on the other hand, argues with reference to sections 3, 6(1)(a) and section 8(3) of the Banking Companies (Recovery of Loans) Ordinance, 1979 that the decree was passed by the learned Special Court in exercise of exclusive jurisdiction vested in it to decide the suit that was filed by respondent No,2 against respondents Nos.1 and 3 and that the learned Court further proceeded to execute the decree in the manner prescribed in C.P.C. And once having decided to proceed with the matter under the said Code, the entire provision of Order XXI, C.P.C.
Would be applicable and the suit filed by the appellant would stand barred in view of the provisions of rule 103 of Order XXI, C.P.C. Further, contends with reference to section 6(4) of the said Ordinance that the Special Court would be having exclusive jurisdiction and no other Court would be having jurisdiction with respect to any matter regarding which the jurisdiction of the said Special Court extends under the said Ordinance including the matter of execution of a decree passed by it. He thus urges that the learned trial Court did not have the jurisdiction to decide the suit as on the face of the plaint it touched upon the proceedings conducted pursuant to the filing of execution petition by the respondent-Bank. Reference is made to the case of Mst. Yasmeen Nighat and others v. National Bank of Pakistan and others (PLD 1988 SC 391). He also relies on the cases of Messrs Sindh Engineering (Pvt.) Ltd. v. Otis Elevator Company and 3 others (2000 CLC 1524), Khawaja Ghulam Qadir v. Messrs Regent Properties Ltd. And 5 others (1997 MLD 646) while arguing that the unconditional withdrawal of the objection petition would bar the suit.
6. Mr. Khalid Salim, learned counsel for respondent No,2 adopts the line of arguments presented by Syed Zamir Hussain, Advocate and further refers to the cases of Mst. Khurshid Begum and others v.
Mst. Ghulam Kubra and others (1982 SCM R 90), Sh. Ghulam Nabi and others v. Ejaz Ghani and others (1982 SCM R 650) and Mahmood Ahmad v. Muhammad Shafi and 3 others (1981 CLC 389) to press the point that the plaint was correctly rejected in view of the law contained in Order XXI, rule 103, C.P.C.
7. We have gone through the trial Court's records. The facts narrated above have been gleaned by us after examining the plaint, the documents accompanying it and the copies of the proceedings of the Executing Court present on record of the learned trial Court. There is absolutely no dispute that a decree was passed in favour of respondent No,2 and against respondents Nos.1 and 3 by a Special Court exercising jurisdiction under the Banking Companies (Recovery of Loans) Ordinance, 1979. There is also no dispute that the decree was put into execution and the said Special Court in execution of the decree proceeded to sell the house and it was purchased by respondent No,4. The price was deposited and sale certificate was issued to him. There is no denial of the fact that respondent No,4 in the first instance filed an application for the setting aside of the said sale before the said Special Court and then withdrew it. We have already referred to the material contents of the plaint. Respondent No,4 has categorically stated in the plaint that the proceedings of sale and the ultimate sale held in favour of respondent No,4 by the Special Court is ineffective upon his rights and consequently the trial Court stands called upon to determine the said plea.
8. In the present R.F.A., we have to see as to whether the suit can be said to be barred by Order XXI, rule 103, C.P.C. And also as to whether the bar contained in section 6(4) of the Ordinance, 1979 would become applicable upon the said reading of the plaint by us.
9. Section 8(3) of the said Ordinance provides that the Special Court shall, on the application of the decree-holder forthwith order execution of the decree as arrears of land revenue or such other manner as it may deem fit. According to Mian Nisar Ahmad, Advocate, since it has been left at the discretion of the Special Court to adopt such other manner of execution of decree as it deems fit, this provision should be read to mean that provisions of Order XXI, C.P.C. Can be resorted to only for recovery of decretal amount and this would exclude the application of Order XXI, rule 103, C.P.C. It is an admitted position on record that the learned Special Court proceeded to adopt the procedure provided in C.P.C. For execution of the decree and first attached the property and then ordered its sale. We have given due thought to the said contention of learned counsel for the appellant and find ourselves unable to agree with the same. Once the Special Court had opted to execute the decree in the manner prescribed in C.P.C., more particularly in accordance with the provisions of Order XXI thereof, the discretion vested in the Special Court by virtue of said section 8(3) to adopt any mode or procedure for execution of its decree stood exhausted. The result would be that the execution proceedings so commenced shall have to culminate in the manner prescribed in Order XXI, C.P.C. We draw support for forming the said view from the following observations in the case of Hudaybia Textile Mills Ltd. And others v. Allied Bank of Pakistan Ltd. And others (PLD 1987 SC 512) appearing at page 209 of the judgment.
"Even otherwise once the Court had made up its mind to execute the decree by attachment and sale by public auction, as long as the order so directing was in the field, the discretion vesting in it under section 8(3) of the Ordinance stood exhausted and a particular course of proceedings was brought into motion which had to culminate in a result contemplated by legal principles, and this course could not be diverted on the assumption that the Executing Court had discretion to choose any mode of execution."
In the present case the mode of attachment and sale of property was adopted by the learned Special Judge. The attachment as also sale is subject to objections in the manner prescribed in Order XXI, C.P.C. Such objections in fact were filed by the appellant but then were withdrawn. This is thus a matter which squarely falls within the exclusive jurisdiction of the Special Court vested in it by the said law and section 6(4) of the said Ordinance completely bars the jurisdiction of any Court other than a Special Court in respect of the execution of the decree passed by it and all proceedings including proceedings for the execution of a decree within its jurisdiction.
10. Adverting to the plaint, we find that the plaintiff/ appellant insists in the plaint that the sale in favour of respondent No,4 pursuant to proceedings for the execution of a decree (within the jurisdiction of the Special Court) is ineffective upon his rights. He makes a prayer that respondent No,4 be restrained to claim any right in the suit property on the basis of auction in execution of the said decree. Thus, to our mind, the plaint on its plain reading stands barred by the said provisions of section 6(4) of the Banking Companies (Recovery of Loans) Ordinance, 1979 and also on principles underlying Order XXI, rule 103, C.P.C.
11. Having upheld the rejection of plaint on grounds stated above, the afore-noted contention of learned counsel for the appellant based on said case of Mohiuddin Molla (PLD 1962 SC 119), loses significance. Besides consideration of said plea would be tantamount to determining the case on its merits. Suffice it to say that the judgment was delivered long before the amendment of Order XXI, C.P.C. By Law Reforms Ordinance, 1972 and enactment of Ordinance XIX of 1979, provisions whereof have been relied upon by learned counsel for respondents and discussed above by us.
12. This R.F.A. Is accordingly dismissed with costs.