JUDGMENT MUHAMMAD SAIR ALI, J.-- On 18.1.1978 an exparte decree for Rs. 76,651/- alongwith interest was passed by the Learned Civil Judge, Lahore against the predecessor-in- interest of the petitioners i.e, late Muhammad Rafique on the suit of United Bank Limited (respondent No. I). An execution petition was field by the decree-holder i.e. UBL on 18.2.1980 before the Executing Court of Learned Civil Judge, Lahore. Under the orders of the Learned Executing Court, mortgaged property was put to auction on 1.12,1984 whereafter number of applications were made by the petitioners challenging and objecting to, the auction proceedings. All the objection petitions were dismissed and sale through auction was confirmed vide order dated 31.1.1987 passed by the learned Civil Judge, Lahore i.e. Executing Court. Petitioners challenged this order through an appeal before the Learned Additional District Judge, Lahore but their appeal was dismissed in limine vide order dated 24.6.1987. Both the abovesaid orders dated 3.1.1986 and 24.6. I 987 respectively passed by Learned Executing Court/Civil Judge, Lahore and Additional District Judge/ Lahore have been assailed by the petitioners through the present revision petition filed in July, 1987.
2. Learned counsel for the petitioners on the basis of judgment of the Hon'ble Supreme Court of Pakistan in the case of "Mst. Yasmeen Nighat 'and others v. National Bank of Pakistan and others", reported as PLD 1988 SC 391, has contended that on promulgation of Banking Companies (Recovery of Loans) Ordinance, 1979 as amended by Ordinance II of 1983, jurisdiction to execute a decree even if passed prior to 1979, exclusively rested with the Learned Special Banking Court, It was further contended that in view of Section 7(4) no Court other than a Special Court could exercise jurisdiction with respect to the matters falling within the scope of 1979 Ordinance including the execution of a decree passed by a Civil Court prior to introduction of 1979 Ordinance. Learned counsel for the petitioners thus emphasized that the Learned Civil judge acting as Executing Court did not possess jurisdiction to entertain decree-holders' execution petition and to pass any orders thereupon and as such all the proceedings including the auction proceeding of the mortgaged property and its confirmation vide impugned order dated 3.1.1987 being without jurisdiction are liable to be set aside.
3. Contrarily, Learned counsel for the respondent-Bank as well as the purchaser contended that the auction proceedings were confirmed and the sale certificate was ordered to be issued by the Learned Civil judge/Executing Court on 3.1.1987. The abovesaid judgment of the Hon'ble Supreme Court of Pakistan in the case of "Mst. Yasmeen Nighat and others v. National Bank of Pakistan and others", noted supra was pronounced on 17.4.1988, wherefore according to the Learned counsel for the respondents, law pronounced by the Hon'ble Supreme Court of Pakistan in 1988 was not applicable to a past and closed transaction completed in 1987. Reliance was placed on the case of "Income Tax Officer, Central Circle-II, Karachi and another v. Cement Agencies Ltd.", reported in PLD 1969 SC 322, wherein the Hon'ble Supreme Court of Pakistan was pleased to hold that past and dosed transactions could not be reopened on the basis of Supreme Court's judgment pronounced after the completion of said transactions, It was further contended by the Learned counsel for the respondents that the petitioners had not challenged the jurisdiction of Executing Court in any of the proceedings before the Courts below or even in the present revision petition. Wherefore the petitioner cannot be allowed to raise this point for the first time during final arguments before this Court.
4. Having attended to the arguments of Learned counsel for the parties, I am of the opinion that question of jurisdiction of the Civil Court/Executing Court to execute a decree passed in a Bank's suit for recovery; after promulgation of Banking Companies (Recovery of Loans) Ordinance, 1979 as amended by Ordinance-II of 1983 is fundamental to exercise of powers by the Executing Court. This question is germane and basic to the very nature of proceedings undertaken by the Learned Executing Court. As such the petitioners can competently raise and argue the question of Executing Court's jurisdiction even if they failed to raise the said question before the Courts below or in the revision petition. Another over-whelming reason to allow the petitioner to argue the ground of jurisdiction at this stage is that this Court in the cases of "National Bank of Pakistan v. Taj Muhammad", reported as PLD 1984 Lah. 417 and "United Bank Ltd. v. Mian Abdul Khaliq" (PLD 1988 Lah. 225) had held that proceedings pending in Civil Courts on the promulgation of 1979 Ordinance as amended by Ordinance II of 1983 remained un-affected. The view taken by Peshawar High Court and the High Court of Sindh was contrary to that of the Lahore High Court. The controversy on the question of jurisdiction was finally settled by the Hon'ble Supreme Court of Pakistan in the said case of Mst, Yasmeen Nighat and others v. National Bank of Pakistan and others", noted supra. Execution proceedings in the case in hand before the Courts below were undertaken between 1980 and 24.6.1987 when petitioners' appeal was dismissed by the learned Additional District judge, Lahore.
This revision was filed in july, 1987. Till then the position of law relating to special Court's jurisdiction to proceed with the pending civil suits or to execute the decrees passed prior to the said Ordinance was fluid. Wherefore, benefit of un-certainty of legal position is extendable to the borrower/judgment-debtor/petitioners, whose property was being sold in djstress through execution petition for enforcement of an ex parti decree passed in favour of respondent-Bank.
5. The doctrine of past and closed transactions cannot be applied to the present case as admittedly the execution proceedings are pending till date and now stand transferred to the Learned Banking Court. The culmination point of auction proceedings, if validly held, is the issuance of sale certificate in favour of an auction purchaser under Rule 94 of Order XXI, CPC. No sale certificate was even issued in favour of the auction purchaser (respondent No. 2) as the impugned orders throughout remained suspended. Furthermore, the execution proceedings and the orders passed thereupon by the Learned Executing Court/Civil Judge including the order to hold and confirm the auction proceedings was questionable being coram non judice and without jurisdiction. As such, judgment 'of Hon'ble Supreme Court of Pakistan passed in the case of "Income Tax Officer, Central Circle-II and another v. Cement Agencies Ltd." noted supra does not re-inforce the foundations of respondents' argument in this case. In this case. The assessment of Income Tax had been finalised and closed prior to the pronouncement of the Hon'ble Supreme Court of Pakistan as to the vires of such assessments. It was under these circumstances that the Hon'ble Supreme Court of Pakistan observed that:- "The Appellate Assistant Commissioner and the Income Tax Appellate Tribunal took the view that since the Managing Agent and the Managed Company were both residents of outside Pakistan, the commission earned by the Managing Agent in . Regard to the two Cement Factories of the managed Company in Pakistan was not taxable in Pakistan. This Court in the case of Octavius Steel and Company Ltd. v. The Commissioner of Income-tax, Dacca, however, took a different view. After the decision of this Court in the above case the second set of notices were issued to the respondent. The question that arises is whether this was permissible. In my view such a course is not sanctioned by law. I do not see how on the basis of the judgment of this Court in Octavius Steel and Company Ltd. 's case, past and closed transactions could be re-opened.
The proceedings in respect of the disputed years were finally disposed of in favour of the respondent and until they are set aside in accordance with law, no fresh proceedings could be initiated in respect of these years."
Judgment in the case of "Mst. Yasme en Nighat v. NBP", the Hon'ble Supreme Court of Pakistan in 1988 when the impugned execution proceedings were still pending. Operation of the impugned orders had remained suspended and sale certificate is yet to be issued. As such this case does not attract doctrine of "past and closed transaction" to be availed of by the respondents to save the abovesaid sale of the mortgaged property in auction.
6. Adverting to the basic question of Executing Court's jurisdiction to execute decree dated 18.1.1978 on UBL's execution petition dated 18.2.1980 and auction dated 1.12.1984 and confirmation of the auction proceedings on 3.1.1987, after the amending Ordinance-ll of 1983, it will be pertinent to reproduce hereunder observations of the Hon'ble Supreme Court of Pakistan in the said Mst.
Yasmeen Nighat's case:- "The situation in the present case is similar as there is no contrary indication in Ordinance II of 1983 we are of the opinion, therefore, that in the present case too the amending Ordinance (II of 1983) would affect the pending proceedings and and all the suits would have to be tired by the Special Court.
It may be added that an examination of the provisions of Ordinance XIX of 1979 in juxtaposition of Ordinance II of 1983 shows that the Legislature by enacting Section 6(4) of Ordinance XIX of 1979 intended to oust the jurisdiction of all other Courts in the matter of ' banking loans and to confer exclusive jurisdiction on Special Courts in respect of the matters which were made triable by the said Courts, under the terms of the said Ordinance and ail such proceedings pending in any Court immediately before the commencing day of Ordinance XIX of 1979 stood transferred to the Special Court concerned. Under the provisions of the said Ordinance XIX of 1979 (under Section 6(2)(a) the jurisdiction of the Special Court was expressly excluded in relation to cases involving a sum of Rs.
One lac or less. But by Ordinance II of 1983, the definition of Special Court having been amended and sub-section (2)(a) of Section 6 of Ordinance XIX of 1979 having been omitted, the Special Court established under Section 5(1) of the Ordinance became vested with the jurisdiction to try those cases which were specially excluded from its jurisdiction under Section 6(2)(a) of Ordinance XIX of 1979. As a result of this extension, the Special Court was conferred the sole jurisdiction in such matter (the jurisdiction of all other Courts having been ousted in respect of such cases). The intendment of the law-maker which appears from the changes made by him, is that he intended that even such cases which under Section 6(4) of the Ordinance were to be tried by the Civil Courts earlier were also become triable by the Special Courts. This intention is also decipherable from the circumstance that with the omission of clause (a) of sub-section (2) of Section 6 of Ordinance XIX of 1979 the forum of the Civil Courts for the trial of such cases ceased altogether. Hence it will not be reasonable to infer that the suit spending in the Civil Courts can continue to be tried by them, when their jurisdiction in respect of these cases has been completely taken away.
In view of the above position of law, accepting present petition, the impugned orders as well as all other proceedings before the learned Executing Court (Civil Judge, Lahore) are declared to be without lawful authority and of no legal effect. The execution proceedings have since been transferred to the learned Banking Court exercising powers under the newly promulgated Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act, 1997 (Act XV of 1997). The parties are directed to appear before the learned Banking Court on 25.7.2001 and the learned Banking Court shall proceed with the execution of abovesaid decree dated 18.1.1978, expeditiously in accordance with law. The parties are left to bear their on costs.