' MIAN HAMID FAROOQ, J.---This single judgment shall decide the instant writ petition (Writ Petition No,12374 of 1999), Writ Petition No,1055 of 1999, Writ Petition No,21629 of 1998 and Writ Petition No,12587 of 1996, as common questions of law are involved in these Constitutional petitions.
2. Before embarking upon to decide the legal questions emerged in these Constitutional petitions, it appears appropriate to narrate the brief facts of each of the writ petition.
(i) W.P. No,12374 of 1999 ' In this case, decree, dated 10-11-1993, for the recovery of Rs, 10,06,786.81 together with liquidated damages, was passed by the then Banking Tribunal against the petitioner, which was not challenged through the filing of appeal; however, after the expiry of the period of limitation, stipulated for filing the appeal under the Banking Tribunals Ordinance, 1984 (since repealed), the petitioner filed a Constitutional petition (W.P. No,1319 of 1994), which was disposed of alongwith other similar writ petitions by virtue of judgment reported as Messrs Chenab Cement Product (Pvt.)
Ltd. And others v. Banking Tribunal, Lahore and others (PLD 1996 Lahore 672). The said judgment was called in question by the Bank through filing C.P.L.A. No,2000-L of 1996, but subsequently, the same was withdrawn. Thereafter, on an application, filed by the respondent-bank, the Banking Court issued warrants of attachment of the property of the petitioner, who, then, filed an objection petition, which was, however, dismissed by the learned Banking Court vide order, dated 15-6-1999, which order has been called in question through the filing of the present writ petition with a prayer that the execution petition for the recovery of Rs,10,06,786.81 may be dismissed.
(ii) W.P. No,1055 of 1999 ' In this case, the then Banking Tribunal passed a decree dated 15-1-1995, for the recovery of Rs,1,36,70,824.60 against the petitioners, which was not assailed by them through filing an appeal, however, the petitioners filed a Constitutional petition (W.P. No,3401 of 1996), which was disposed of alongwith other writ petitions by the aforesaid judgment of Messrs Chenab Cement Product (Pvt.)
Ltd. During the execution proceedings, an objection was raised by the petitioners that in view of Chenab Cement Product's judgment, the decree cannot be executed, but the learned Banking Court did not agree with the said assertion and disposed of the said objection petition vide order, dated 21-1-2-1998, which order has been called in question through the present writ petition.
(iii) W.P. No,12587 of 1996 ' In this case decree amounting to Rs,1,78,99,825.84 plus Rs,1,49,459.94 as Central Excise Duty with liquidated damages was passed against the petitioners by the then Banking Tribunal, on 14-2-1996, which was not assailed through the filing of appeal, but the petitioners, on 18-7-1996, filed the present writ petition thereby impugning the judgment and decree, dated 14-2-1996.
(iv) W.P. No,21629 of 1998 ' This petition has been filed by the Muslim Commercial Bank challenging the order, dated 8-6- 1998, passed by the learned Judge Banking Court, whereby he adjourned the execution proceedings sine die on the strength of the aforementioned judgment of Chenab Cement Product.
Suit for recovery of Rs,8,79,735 was decreed on 24-9-1993, in favour of the petitioner-Bank by the then learned Banking Tribunal, which decree although was not further challenged by way of filing the appeal, yet a Constitutional petition (W.P.No,2514 of 1994), filed by the respondents, was disposed of alongwith other writ petitions through the judgment in Chenab Cement's case.
Pursuant to the above, the respondents filed an objection petition before the learned Executing Court before whom an execution petition, filed by the petitioner-Bank, was already pending and thereupon the learned Banking Court adjourned the execution proceedings sine die, hence, the present petition.
3. Learned counsel representing the customers in all the writ petitions, while admitting that they have not filed an appeal against the decrees, have contended that para. 12 of the judgment of Chenab Cement Product's case deal with those category of cases, in which no remedy, at all, was available by the judgment-debtors in any forum, whatsoever, against the decree passed, either by way of writ or appeal and as in the present cases, decrees were challenged through the filing of writ petitions, therefore, the decrees passed by the learned Banking Tribunal were not saved and deemed to have been set aside with the acceptance of the writ petitions through the passing of the aforesaid judgment of Messrs Chenab Cement Product. The learned counsel while relying upon Messrs Isman Drug House (Pvt.) Ltd. And 2 others v. Messrs Habib Credit and Exchange Bank Limited and 4 others 2000 YLR 1484 have contended that their cases are not covered under the term "past and closed" within the comprehension of para. 12 of the Full Bench judgment and with the acceptance of their writ petitions, the decrees passed by the learned Banking Tribunal be deemed to have been set aside, they are not subsisting decrees and thus, inexecutable.
' Conversely, the learned counsel for the respondent-Bank has contended that the writ petitions, filed by the customers, were not accepted, but they were disposed of as is apparent from the concluding para. Of the judgment of Chenab Cement Product's case. It has further been contended on the strength of case-law that in cases where no appeal was filed against the decree, those would amply fall within the contemplation of para. 12 of the judgment, their cases would be deemed to be past and closed and as the customers in the present cases did not file the appeals, therefore, the decrees passed in their cases, have been saved by the judgment of Chenab Cement Product case, they are still in force and shall be construed as executable decrees.
4. The legal questions, which have arisen for determination by this Court in all the writ petitions are as to what is the effect of observations made by the learned Full Bench of this Court in para.12 of the judgment reported as Messrs Cement Product (M.) Ltd. And others v. Banking Tribunal, Lahore and others (PLD 1996 Lahore 672) and as to whether the decrees passed by the erstwhile Banking Tribunals before the date of rendering of the aforenoted Full Bench judgment, viz. 21-7-1996, against which no appeal was filed, though they were challenged through filing of the writ petitions, are saved, not affected by the said judgment, are now subsisting decrees and as such still executable.
5. At the very outset, it would be advantageous to reproduce para. 12 of the judgment rendered in Chenab Cement Product's case (PLD 1996 Lahore 672), around which the entire controversy raised in the present petitions revolves:-- "Before parting with the case we may also state that the declaration made by us in this judgment shall not affect cases past and closed or invalidate the judgments/decrees, order, fines or sentences or proceedings which have become final. As a result of this judgment no vacuum will be created as these cases are also triable by the Courts created under the Banking Companies (Recovery of Loans) Ordinance, 1997, which can also try cases under the Islamic System of Banking after the amendment of the definition of loan by the amending Ordinance No,58 of 1980."
6. The Hon'ble Supreme Court of Pakistan in Soneri Bank's case (KLR 1997 Civil Cases 742), after considering that the judgment-debtors instead of filing appeals preferred writ petition challenging the decrees, which petitions were disposed of by this Court, while deciding the case of Chenab Cement Product, and after examining para. 12 of the aforenoted judgment, declared that the judgment delivered in Chenab Cement Product's case of this Court would not affect the cases past and closed or invalidate the judgments and decrees, orders or proceedings, which have become final.
7. The proposition in hand was considered by the learned Division Bench of this Court in an unreported judgment rendered in R.F.A. No,101 of 1995 and this Court took the view that as no appeal was filed against the decree passed by the Banking Tribunal, therefore, despite the fact that writ petition was disposed of by the judgment of Chenab Product, the decree passed by the learned Banking Tribunal is completely saved, is not affected by the said judgment and, therefore, can be executed. It would be beneficial to reproduce the relevant portion of the judgment of R.F.A.
No,101 of 1995, which is as under:--
8. "In so far as respondents Nos.1, 9 to 15 are concerned, the suit was decreed by the Banking Tribunal but no appeal was filed by them to challenge the impugned decree. This being so the decree attained finality as against these respondents. As regards the plea, that the decree could not be executed, because of the judgment of the Full Bench, the same is devoid of merits. This question was considered by the Hon'ble Supreme Court in Soneri Bank Limited v. Raja Weaving Mills Limited and another (KLR 1997 Civil Cases (SC) 742), where it was ruled that in para. 12 of the judgment of the Full Bench, it was clarified that the judgment delivered by the Full Bench would not affect cases past and closed or invalidate the judgments/decrees, orders fines or sentences or proceedings which have become final. The judgment of the Full Bench was delivered on 21-7-1996 while the impugned decree in this case was passed on 18-12-1994. This being so, the impugned decree is completely saved and is not affected by the said judgment, and therefore, it can be executed in accordance with law."
8. Aforesaid judgment passed in R.F.A. No,101 of 1995, was challenged before the Hon'ble Supreme Court of Pakistan, but the same was affirmed, while deciding Civil Petition No,2172-L of 1999 (Mr. Aziz-ul-Haq Qureshi and others v. Habib Bank Limited and others). The Hon'ble Supreme Court of Pakistan, while confirming the findings given by this Court in the aforenoted case (R.F.A. No,101 of 1995) held that as no appeal was filed to impugn the decree, therefore, decree had attained finality. While dilating upon the proposition of law in hand, the Hon'ble Supreme Court of Pakistan in the case of Mr. Aziz-ul-Haq Qureshi has held as under:-- ' we are of the view that the learned Judges rightly concluded that as far as defendants 1 and 9 to 15 were concerned, decree against them had attained finality because no appeal was filed by them to impugn it. The learned Judges also rightly held by placing reliance upon judgment reported as Soneri Bank Ltd. v. Raja Weaving Mills Ltd. And another (KLR 1997 Civil Cases SC 742) that the decrees passed before 21-7-1996 could not be affected by the judgment of this Court because decree was passed on 18-12-1994, therefore, it was safe from the operation of the judgment dated 21-7-1996, and thus, the High Court rightly came to the conclusion that the decree was valid and legal."
' The learned Judges of the Lahore High Court also observed that the Bank shall be entitled to execute the decree of the Banking Tribunal."
9. The Hon'ble Supreme Court of Pakistan in the case of United Bank Limited v. Messrs The Hina Export Co. (Pvt.) Limited Office, Karachi (1998 PSC 78) examined the effect of non-filing of appeals against the decrees passed by the defunct Banking Tribunal in relation to the judgment of Chenab Cement Product, the applicability of para.12 of the said judgment and declared that as no appeal was filed, though writ petition was preferred, therefore, the decree passed on 11-12-1994, is completely saved and in such cases para. 12 of the judgment has no applicability. It would be appropriate to reproduce certain extracts from the aforesaid judgment of United Bank Ltd. (ibid):-- "We are inclined to hold that since the judgment and decree in the above case was passed on 11- 12-1994 and as no appeal was filed by the respondents against the above judgment/decree and the application filed by the respondents under section 12(2), C.P.C. Cannot be treated as an appeal for the purpose of holding that the above judgment/decree has not become final, para.12 of the Full Bench judgment is applicable."
"The appeal is allowed to the extent that the above judgment/decree dated 11-12-1994 was saved and, therefore, the respondents' above writ petition should have been dismissed in respect of the same."
" Mr. M. Nazir Ahmad Sheikh further submits that the respondents had not filed appeal under section 9 of the Ordinance as there was requirement of deposit of decretal amount, which was also declared illegal by the Full Bench in the aforesaid judgment. It will suffice to observe that the decree was passed on 11-12-1994 whereas the Full Bench judgment was rendered on 12-7-1996 i,e, after the expiry of more than two years. It was open to the respondents to have filed appeal which was done by a number of other judgment-debtors."
10. Now coming to the case of Messrs Isman Drug House (Pvt.) Ltd. And 2 others (2000 YLR 1484) relied upon by the learned counsel representing the customers, we have gone through the judgment and find that in the aforenoted case decree, dated 21-1-1996, passed by the learned Banking Tribunal, was challenged by the judgment-debtors by way of filing R.F.A. No,588 of 1996 and they have also challenged the said decree, dated 21-1-1996, through filing W.P. No,4313 of 1996, which petition was disposed of by the learned Full Bench of this Court, while deciding the case of Messrs Chenab Cement Product. We are of the view that the judgment of Isman Drug House, relied upon by the learned counsel, is also in line with the judgment mentioned hereinbefore. As in the case of Isman Drug House, the judgment-debtors filed an appeal and simultaneously challenged the decree through the filing of the writ petition, therefore, the learned Division Bench of this Court came to the conclusion "that the decree challenged in the appeal" having been set aside in W.P.
No,4313 of 1996, the appeal has borne fruit. (Underlining is ours).
11. 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 the 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.
12. Applying the aforesaid yardstick to the present cases, as is evident from the narrative given in para. 3 above, in all the cases in hand decrees were passed prior to the date of rendering of the judgment of Chenab Cement Product and those were not called in question through the filing of the appeals, but the same were challenged through the institution of the writ petitions, which were statedly, disposed of by the judgment passed in Chenab Cement Product's case, thus, the decrees passed in all the cases are saved, those would definitely fall within the term "past and closed cases" and have become final within the meaning and scope of para.12 of the judgment given in the aforementioned case and there is no legal impediment in executing the same. We are of the considered view that all the writ petitions, filed by the petitioners, are devoid of any force.
13. In the light of the foregoing discussion, W.P. No,12374 of 1999, W.P. No,1055 Of 1999 and W.P.
No,12587 of 1996, are dismissed being devoid of any merits, while W.P. No,21629 of 1998, filed by the Muslim Commercial Bank stands accepted with no order as to costs. The result would be that the decree passed in all the cases by the then Banking Tribunal shall be executed by the Banking Courts, established under section 5 of the Financial Institutions (Recovery of Finances) Ordinance, 2001, in accordance with law.