1. SYED SAEED ASHHAD, C.J.- In this Constitutional petition the petitioner has sought the following reliefs:- "(a) Declare that the impugned order being order dated 14.2.2000 in Suit No. 366 of 1999 is without jurisdiction and hence of no legal effect.
(b) Direct that the name of Mr. A.D. Ahmed, the defendant No. 2 in the said suit be struck off.
(c) Grant any other relief as may be deemed just and proper by this Hon'ble Court under the circumstances of the case."
2. The brief facts of the case are that respondent No. 1 find a Suit No. 366 of 1999 for recovery of US$1,940,236.15 in this Court under the Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act, 1997 (hereinafter referred to as the said Act), wherein one A.D. Ahmed, father of the petitioner, was named as defendant No. 2. When this fact came to the notice of the petitioner, she moved an application under Order 1, Rule 10(2) read with Section 151, C.P.C, for striking of the name of* the said A.D. Ahmed on the ground that he had expired much before filing of the suit in December, 1998. The learned Single Judge vide order dated 14-2.2000 ordered that the name of the petitioner be added in place of her late father A.D. Ahmed and also directed the petitioner to disclose the names of other heirs of late A.D. Ahmed. The petitioner entered appearance on the basis of the said order but feeling aggrieved thereby find this Constitutional petition as there was no remedy under the said Act.
3. We have heard the arguments of Mr. M. Shaiq Usmani on behalf of the petitioner and Mr. A.R. Akhtar on behalf of respondent No. 1.
4. In the first place the petitioner was not required to move any application under Order 1, Rule 10(2), C.P.C, for deleting the name of her late father A.D. Ahmed. The question of deleting the name of late A.D. Ahmed would have been taken up by the learned Single Judge himself when it would have been brought to his knowledge on the report of the process-server that the said late A.D. Ahmed was no longer alive and had died much before filing of the suit, the learned Single Judge would have himself taken up the issue of substitution of the name of late A.D. Ahmed by his heirs and bringing them on record as defendants. Notwithstanding the above, the petitioner find an application under Order 1, Rule 10(2), C.P.C, for deletion of the name of her late father A.D. Ahmed and the learned Single Judge was justified in joining her as a defendant in place of her late father and calling upon her to give the names of other legal heirs of late A.D. Ahmed, Mr. M. Shaiq Usmani submitted that the impugned order could not be said to be a valid and just order as the petitioner was joined as a defendant without consideration of the question whether the suit find in December, 1998 would be within time against the petitioner as liability, if any, the late A.D. Ahmed for re- payment of the loan advanced to Messrs Pan Islamic Steamship Co. Limited would stand absolved on his death in 1 994 and the suit having been find beyond the period of three years would apparently appear to be time-barred. This contention cannot be taken note of in this petition at this stage and should be raised before the learned Single Judge proceeding with the suit of respondent No. 1 against Messrs Pan Islamic Steamship Co. Limited and six others, In those proceedings the Banking Court would be required to consider the issue whether the suit against the heirs of the late A.D. Ahmed would be maintainable or not depending on the question whether the right to sue devolved upon them. The Banking Court would also be required to examine whether in the circumstance that the suit was find against a dead person, his heirs could be joined by way of substitution under Order XXII of Civil Procedure Code as in law a suit against a dead person is a nullity. The question whether the heirs of late A.D. Ahmed could be joined as defendants would be dependent. Firstly whether the right to sue devolved upon them; and secondly, whether on the date on which they were joined or are to be joined the suit would not be barred^ against them by the statute of limitation.
5. By way of the above Constitutional petition the petitioner has impugned an interlocutory order passed by the learned Single Judge of this Court exercising powers as a Banking Court in accordance with Section 2(b)(ii) of the said Act. Sub-section (4) of Section 7 of the said Act bars the jurisdiction of a Court other than a Banking Court to exercise any jurisdiction with respect to any case/suit to which the jurisdiction of a Banking Court extends under the said Act. The suits/cases which fall within the exclusive jurisdiction of a Banking Court have been specified in Section 2(b)(i) of the said Act. Such are the cases which relate to cases for recovery of outstanding amount of claims based on a loans orfinances between Banking Company and of borrower or a customer as defined in Section 2(a), (c) and (d) respectively. Section 21 of the said Act provides an appeal by any person aggrieved by a decree, or an order refusing to set aside a decree, or an order permitting or preventing the sale of property, or a sentence passed by a Banking Court established under Section 4. Such appeal is to be find within thirty (30) days of such order, decree or sentence to the High Court. Sub-section (3) of Section 21 provides that an appeal find under sub-section (1) shall be heard by a Bench of not less than two Judges, It is thus to be observed that Section 21(1) has provided the right of appeal against a decree/order/sentence passed by a Banking Court. Any other order or decision not falling within the definition of the decree/order/sentence as specified cannot be challenged by way of an appeal under Section 421 of the said Act. The impugned order obviously does not fall within any of the categories of the order specified in sub-section (1) of Section 21 so as to be appealable, It is a settled principle of law that when a statute does not provide an appeal against an interlocutory order then the same cannot be challenged by way of a Constitutional Petition as allowing such an order to be impugned by way of a Constitutional Petition would among to negating the provisions of the statute which does not provide for an appeal against an interlocutory order. According to the principles of interpretation of statute the Court would not act in a manner by which the object of a statute is defeated and the same is rendered nugatory, In the case of Syed Saghir Ahmed Naqvi v. Province of Sindh and another, reported in 1936 SCMR 1165, the Supreme Court pronounced that when a statute does not provide an appeal against an interlocutory order the same could not also be challenged by way of a Constitutional petition as allowing such an order to be assailed by way of a Constitutional petition would amount to defeating the object of the statute. A similar pronouncement was made by the Supreme Court in the case of Muhammad iftikhar Mohmand v.
6. Javed Muhammad and 3 others, reported in 1998 SCM R 328. In this case the Hon'ble Supreme Court observed that when no appeal was provided against an interlocutory order then the same could only be challenged in the appeal to be find against the final order//judgment.
7. Mr. A.R. Akhtar submitted that sub-section (5) of Section 21 of the said Act provided an appeal, review or revision against interlocutory order of the Banking Court and the said orders have been specified or relate to clauses (a), (b) and (c) of sub-section (6) of Section 18 but the impugned order did not fall or had any proximity with the provision of any of the above clauses (af, (b) and
(c) of Section 18(6) as to be impugned by way of an appeal, revision or review.
8. Sub-section (5) of Section 21 of the said Act does not provide any appeal, review or revision against any interlocutory order of the Banking Court other than an order passed under sub-section
(6) of Section 18. Sub-section (6) of Section 18 of the said Act s confers upon a Banking Court the following powers:- "(a) The investigation of claims and objections in respect of attachment or sale of any property, whether mortgaged, pledged or not, shall be completed within thirty days of filing such claims or objections;
(b) if the claims or objections are found by the Banking Court to be mala fide, or find merely to delay or postpone the sale of the property, it may impose a penalty at a rate of up to twenty per cent of the sale price of the property for the period of the delay; and
(c) the Banking Court may, in its discretion, proceed with the sale of the mortgaged or pledged property if, in its opinion, the interests of justice so require."
9. The order which has been challenged by way of this Constitutional petition had neither been passed in exercise of the powers under sub-section (6) of Section 18 nor dealt with the matters embodies in the aforesaid sub-section (6) of Section 18. Section 21 of the said Act specifically bars an appeal against any order except those specified in sub-sections (1) and (5) of Section 21 of the said Act. This question was agitated before the Supreme Court in the case of Bolan Bank Limited v.
10. Capricorn Enterprise (Pvt.) Limited reported in 1998 SCM R 1961 and the Hon'ble Supreme Court was pleased to hold that there was no room for doubt that the petition find by the petitioners challenging the order granting conditional leave to defend the suit was not competent. For coming to the above conclusion the Hon'ble Supreme Court has relied upon the observations made by it in an earlier judgment in the case of Muhammad Ayub Butt v. Allied Bank Limited,' reported in PLD 1981 SC 359, which are as under:- "It seems to us that with a view to securing expeditious disposal of cases by a Special Court the framers of the Ordinance and purposely saved the interlocutory orders of the said Court from attack before the High Court in revision or appeal as they wanted that only the final decision of the Special Court should be open to appeal before the High Court. This is evident from sub-section (1) of Section 7, sub-section (1) of Section 8 and Section 11 of the Ordinance. The cumulative effect of these provisions is that the interlocutory order of the Special Court cannot be questioned before any Court including the High Court."
11. We may also refer to the case of Pakistan v. Special Court 'Banking), Sindh and others, reported in 1991 SCM R 2355. In this Case the Special Court (Banking) while passing an interlocutory order under the provision of Order XXXVII, Rule 3, C.P.C, refused addition of parties and inclusion of additional amount in suit. The Supreme Court observed that though the order refusing addition of parties was not passed on a separate application under O. 1, R. 10 and O. 6, R. 17, C.P.C, yet same could be made a ground in appeal from final judgment under the provisions of the Banking Companies (Recovery of Loans) Ordinance, 1979 (hereinafter referred to as 'the Ordinance of 1979') and the aggrieved party could not invoke the Constitutional jurisdiction, In the present case the Banking Court has passed a separate order on an application under 0. 1, R. 10, C.P.C, find by the petitioner and the same can easily be made a ground for attack in the appeal to be find against the final judgment.
12. It may be pointed out that in the cases of Muhammad Ayub Butt v. Allied Bank Limited and Pakistan v. Special Court (Banking), Sindh, supra the provisions of the Ordinance of 1979 had been under consideration. However, the same would not make any difference inasmuch as the provisions of the said Act are more or less similar and analogous to the provisions of the Ordinance of 1979 insofar as they relate to the definition of the Banking Court, which was referred to as the Special Court in the Ordinance of 1979. Similarly the provisions relating to the nature of the cases, procedure to be followed and the powers to be exercised in deciding a case by a Banking Court under the said Act are similar and analogous to the corresponding provisions and powers conferred on the Special Court constituted under the Ordinance of 1979.
13. Lastly, it was argued by Mr. M. Shaiq Usmani that the impugned order did not relate to or was passed under any provisions of the said Act but was an order under Order 1, Rule 10, C.P.C, thereby giving right to the party to challenge it in accordance with the provisions of the Civil Procedure Code and the petitioner could have challenged the same by way of a revision application under Section 11 5 of C.P.C. He further submitted that this Constitutional petition may be treated as a revision petition against the impugned order. With regard to the first contention we are of the view that the impugned order being an order under the provisions of the C.P.C, and not under the provisions of the said Act could have been challenged under Section 11 5 of the C.P.C, in view of the observations of the Supreme Court in the case of Messrs Central Cotton Mills Limited and another v.
14. Messrs Atlas Bot Lease and others, reported in 1998 SCM R 2352. However, this circumstance would still not give a right to the petitioner to file a Constitutional petition as the petitioner did not file the ing the period of limitation for filing the same to lapse and then approached this Court for invoking the Constitutional jurisdiction of this Court after nine months of passing of the impugned order, In the case of Messrs AbduI Aziz Ayoob v. Assistant Collector of Customs and 3 others, reported in PLD 1990 Kar. 378 this Court refused to entertain a Constitutional petition find by an aggrieved person as he failed to have recourse to the remedy of revision available to him.
15. Upon the above discussion we are satisfied beyond any doubt that this Constitutional petition is misconceived and not maintainable.
16. By a short order dated 10.1.2001 we had dismissed this petition in limine alongwith the miscellaneous application pending therein for reasons to be recorded later. These are the reasons for the said short order.