1. ' Listed applications filed by the defendant are fixed for hearing being C.M.As. Nos.3775 of 2001 and 3776 of 2001. Through earlier application, the defendant has sought direction to the plaintiff to submit accounts and further permission to the plaintiff to deposit Rs,600,000 with the Nazir of this Court for adjustment against the mortgage account for any sum that may be found to be due and payable by the defendant after rendering of accounts. The latter C.M.A. Being for appointment of Commissioner to take accounts in terms of the judgment, dated 8-10-1999 of the Hon'ble Supreme Court. After notice, the plaintiff appeared and took preliminary objection as to the jurisdiction of this Court. According to the learned counsel, the matter falls within the exclusive domain of the Banking Court under the Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act, 1997 since succeeded by the new Ordinance i,e, Financial Institutions (Recovery of Finances) Ordinance, 2001.
2. ' Mr. Fazle Ghani Khan, learned counsel appearing for the defendant herein contended that since there is a specific direction given by the Hon'ble Supreme Court for disposal of the matter by this Court. According to him, since the judgment and decree has been passed by this Court in exercise of its Original Civil Jurisdiction, the decree to be executed by the Court which has passed the judgment and decree, and by no other Court, according to him since the suit relates to the foreclosure of a mortgage property in terms of section 38 of C.P.C., the decree is to be executed by the Court which passed it, or by the Court to which it is sent for execution. According to him, since the matter was referred to this Court, therefore, this Court alone has the jurisdiction.
3. ' Mr. Muhammad Aslam Butt, learned counsel for the plaintiff; however, argued that after the promulgation of the Banking Companies (Recovery of Loans, Advances, Credits an Finances) Act, 1997 all proceedings pending or otherwise intended to be filed could only be filed before the Banking Court and in no other Court. He submits that since the promulgation of the Banking Companies (Recovery of Loans) Ordinance, 1979, the Banking Tribunals Ordinance, 1984, Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act, 1997 and even under the newly-promulgated Ordinance namely Financial Institutions (Recovery of Finances) Ordinance, 2001, similar provisions are provided, the adjudication of all the controversies that may arise between the borrower/ customers and the Banking Companies are to be adjudicated, tried and executed by the Courts or Tribunal established under the above enactments. According to him, the matter relating to the instant proceedings is covered under the purview of Act of 1997 and now the Ordinance, 2001. Therefore, this Court will have no jurisdiction. In support of this contention; he has relied upon a cases-law reported as (1) A. Habib Ahmed v. The Honq Kong and Shanghai Banking Company and 5 others (1999 CLC Karachi 1953) and (2) judgment of a Division Bench of this Court passed in H.C.A. No,182 of 1998 titled as Ali Hussain Rajabali and 2 others v. A. Habib Ahmed and others.
4. ' I have heard the arguments of both the learned counsel for the parties and perused the record.
5. ' In order to appreciate the contention of both the learned counsel briefly stating, facts are that the plaintiff filed a suit for foreclosure of mortgage property of the defendant, the suit was decreed by this Court vide judgment, dated 17-6-1968, on appeal the judgment and decree was reversed.
6. However, in appeal the apex Court modified the judgment and decree of the learned Single Judge of this Court and remanded the case to be decided in terms set out in its judgment, dated 8-10- 1999, operative part whereof is as follows: "This appeal 'for the foregoing reasons is partly accepted, the judgment and decree passed in the L.P.A. Is set aside but that of the learned Single Judge also modified in such manner that all relevant receipts of the bank shall be reflected in the mortgage account alone. Accounts thus rendered and liability, correspondingly, determined, the property shall stand redeemed on due payment, within such time, as be fixed by the Single Judge.
7. ' As regards the suit filed by the respondent-mortgagor i,e, J. Tyler 8s Co., for the recovery of Rs,1,000 per day for the use and occupation of the land in dispute, the appellant-Bank, for reasons noted above is hereby held to be neither entitled to the said amount of Rs,1,000 per day nor it is liable to account for the same. Therefore, the said suit shall be decided by the said Court being a matter between the remaining parties in the suit. Needless to say that it would be subject to all just exceptions as regards claim of any other party or person not impleaded in the said suit.
8. ' In the above terms, this appeal stands disposed of. There will be, however, no order as to costs."
9. ' It may be noted that the suit was originally filed by the plaintiff-Bank in exercising in Original Civil Jurisdiction of this Court. However, between the intervening period from the date of judgment and decree i,e, 15-1-1972 till the matter was remanded vide judgment of the apex Court, dated 8-10- 1999, several laws referred in the narrative above, were promulgated one after the other and the last being Financial Institutions (Recovery of Finances) Ordinance, 2001. However, when the judgment was announced by the apex Court, the Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act, 1997 was in the field.
10. ' Contention of Mr. Fazle Ghani Khan, learned counsel for the defendant that this Court is bound by the direction of the apex Court to execute follow the directions given therein. It may be observed that section 38. Relates to the execution of a decree passed by it or by the Court to which it is sent for execution. For the purposes of deciding the controversy as to the jurisdiction of this Court. It would be advantageous to refer to section 7(6) of the Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act, 1997, which bars the jurisdiction of all the Courts including this Court in respect of a matter which falls within the domain of Banking Court. Similar provision was also contained in the Banking Companies (Recovery of Loans) Ordinance, 1979. While interpreting section 6(4) of the said Act, this Court had an occasion to examine the same in the case of Messrs United Bank Ltd. v. Mat. Rehana Raza (PLD 1983 Karachi 467) were also the question of jurisdiction to execute the decree passed by the High Court arose. At page 473, it was held: "Thus a Special Court has the power not only to execute the decree passed by it but even to proceed to determine and decide the pending execution proceedings in respect of matters in which decree has been passed by any Court which fall within its ambit . As the pending execution proceedings can be tried by Special Court by necessary implication the Special Court will have the jurisdiction to execute the decree passed by any Court in respect of subject-matter falling within the jurisdiction of a Special Court. In view of such wide and clear jurisdiction conferred on a Special Court it cannot be successfully contended that the decree passed by the High Court in respect of matters to which the jurisdiction of the Special Court extends can be executed by the High Court."
11. ' Said judgment of the learned Single Judge was approved- by a Division Bench of this Court in H.C.A. No,182 of 1998 (supra).
12. ' Beside above, under sections 37, 38 and 150, a decree can be executed by the Court:---
(a) Which passed the decree,
(b) Decree passed in appeal or revision is to be executed by the Court of first instance.
(c) Where the Court of first instance has (i) ceased to exist or (ii) to have jurisdiction to execute the decree, the Court which would have had jurisdiction to entertain a similar suit if it were to be filed at the time of making the application for execution.
(d) Where the business of Court is transferred to any other Court, the Court to which the business is so transferred. The eventuality in the instant matter is fully covered by situation described at Serial No,(c) above, as provided for under section 37(b), C.P.C., as after promulgation if laws referred to above, jurisdiction of the Court in Banking matter is regulated as provided therein.
13. From the discussion made above, it is clear that where a special law confers exclusive jurisdiction by creating a Special Court or forum then ordinary jurisdiction conferred under the general law would not be available. By establishing a Banking Court in terms of the above Act, all proceedings including execution of a decree pending in any Court either under the Repealed Act or even before the High Court stood transferred or deemed to have been transferred to the Banking Court having jurisdiction. Such intention of Legislature is very much clear from the provision of subsection (6) of section 7 of the Banking Companies (Recovery to Loans, Advances, Credits and Finances) Act, 1997 reproduced above. Similar provisions are contained in section 7(6) of the Financial Institutions (Recovery of Finances) Ordinance, 2001. It is further provided under the Ordinance 2001 that the Banking Court to which proceedings are transferred, shall proceed from the stage which the proceedings had reached immediately prior to the transfer.
14. ' In view of the foregoing, contention of learned counsel for the defendant that this Court will continue to have jurisdiction cannot be sustained. It is, accordingly, ordered that the above proceedings including listed applications will stand transferred to the Banking Court presently established under the Financial Institutions (Recovery of Finances) Ordinance, 2001 having jurisdiction in the matter. .