' ABDUL SHAKOOR PARACHA, J.---This appeal impugns the order dated 14-1-1998 passed by Judge, Banking Court, Rawalpindi, whereby an application under section 12(2), Civil Procedure Code, submitted by appellant M/s. Pak-Kuwait Investment Company (Pvt.) Ltd., challenging the validity of the decree dated 30-3-1993 on basis of fraud has been dismissed.
2. Brief facts of the case are that M/s. Habib Credit and Exchange Bank Limited (now Bank Al-Falah Limited) ' obtained a money decree against M/s. Highland Shoes (Pvt.) Limited, respondent No,2, to the tune of Rs,11,92,310. The decree was executed and property of the judgment-debtor M/s. Highland Shoes (Pvt.) Ltd., was sold. On 12-5-1997 M/s. Pak-Kuwait Investment Company Limited filed an application under section 12(2), Civil Procedure Code challenging the decree dated 30-3- 1993 on the ground of fraud and concealment of fact that M/s. Pak-Kuwait Investment Company Limited were creditors qua M/s. Highland Shoes (Pvt.) Limited therefore the decree could not have been obtained. This application was contested and the learned Judge, Banking Court vide the impugned order dated 14-1-1998 dismissed the application filed by the appellant by observing:--- "The only ground urged in the application was that the decree was obtained fraudulently inasmuch as the fact that M/s. Pak-Kuwait Investment Company Limited was also creditor qua M/s. Habib Credit and Exchange Bank Ltd., was concealed. If all the facts mentioned in the petition are admitted as correct still it cannot be said that the decree obtained by M/s. Habib Credit and Exchange Bank Limited in any manner fraudulent."
3. Before us, the learned counsel for the respondent at the outset contends that the order rejecting the application under section 12(2), Civil Procedure Code is not appealable under section 21 of the Banking. Companies (Recovery of Loans, Advances, Credits and Finances) Act, 1.997. According to the learned counsel, under section 27 of the Act ibid, subject to the provisions of appeal, judgment passed by the Judge, Banking Court, attained finality and could not be called in question under the provisions of the Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act, 1997.
4. Learned counsel for the appellant contends that the appeal is maintainable under section 21 of the Act ibid, and that the decree dated 30-3-1993 has been obtained by the respondent without impleading the appellant M/s. Pak-Kuwait Investment Company. According to him, the Company was also Creditor qua the respondent and therefore the decree has been obtained by the respondent through fraud and misrepresentation.
5. Before we advert to the merits of the case, we proceed to decide whether the application under section 12(2), Civil Procedure Code before the Judge, Banking Court and appeal under section 21 of the Act against the order rejecting the application under section 12(2), Civil Procedure Code is maintainable or not. To resolve the controversy reading of section 27 of the Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act, 1997 would be necessary, which is reproduced as under:-- "27. Finality of order.---Subject, to the provisions of appeal, no Court or other authority shall revise or review or call, or permit to be called, in question any proceeding, order, judgment, decree or sentence of a Banking Court or the Banking Mohtasib or the legality or propriety of anything done or intended to be done by the Banking Court or the Banking Mohtasib under this Act."
6. A bare perusal of the above provisions of section 27 of the Act No,XV of 1997 would show that subject to the provisions of appeal the judgment and decree attained finality and cannot be called in question. This Act, which is a special law, provides remedies to the parties concerned, including the right _of appeal under section 21 and an application in the nature of section 12 of the said Act as and when warranted by the circumstances. The Act No XV of 1997 takes care of the various situations itself, therefore, application under the general law, i,e, section 12(2), Civil Procedure Code would not be competent. It is to be noted that appeal under section 21(4) of Act No,XV of 1997 can be preferred even against a decree ex parte. Admittedly no appeal has been filed by the appellant.
In case reported as M/s. Gold Star International and others v. Muslim Commercial Bank Limited (2000 MLD 421) (D.B.) while interpreting the provisions of section 27 of the Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act (Act No,XV of 1997) this Court has ruled:-- "Since special law takes care of various situations itself, application under general law will not be competent---Such an application will amount to circumvention of the provisions of a special law which will erode very object and purpose of Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act, 1997."
7. The provisions of sections 3, 12 and 27 of the Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act, 1997 read with section 12(2) and Order IX, rule 13, Civil Procedure Code came for consideration in original jurisdiction of this Court in case reported as United Bank Limited v. M/s. Zafar Textile Mills Ltd. (2000 CLC 1330) and it was held:-- --Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act, 1997 had itself provided a mechanism for challenging decrees and subject to which all orders and decrees passed were deemed to be final and could not be brought under challenge by invoking any other law---Provision of section 12 of the Act had empowered Special Banking Court to set aside decree passed by it on ground stated therein. Provisions of section 12(2) and Order IX, rule 13, Civil Procedure Code whereunder applications were filed for setting aside judgment and decree to be questioned by means of application under Civil Procedure Code, would amount to defeat clear intent of Legislature which was spelt out by section 27 of the Act."
8. In the above stated judgment of United Bank Limited the divergent opinion on the question of maintainability of the application under section 12(2), Civil Procedure Code, before the Banking Court came under consideration and the learned Single Judge of this Court noted that the case of Emirates Bank International Ltd. v. M/s. Osman Brothers and others (PLD 1998 Kar. 338) (D.B.) was not applicable and came to the conclusion that application under section 12(2), Civil Procedure Code was not competent in respect of the decree passed by the Banking Court. The Division Bench of the same Court in case of Mian Munir Ahmad v. United Bank Limited (PLD 1998 Karachi 278) has taken a different view. The learned Single Judge of. This Court observed that:-- "Generally judgment of the Division Bench should take precedence over the judgment of the Single Judge."
' But, having carefully gone through both the judgments he was of the opinion that Emirates Bank International Ltd. Case (supra) is correct enunciation of law. One of the reasons recorded by him for coming to the conclusion was that he relied on the observation given in the case of Pakistan Fisheries Ltd., Karachi v. United Bank Limited (PLD 1993 SC 109) and followed the case of M/ s. Shah Jewana Textile Mills Limited v. United. Bank Limited (PLD 2000 Lahore 162) in which it has been observed that the orders passed by the Banking Court under the Act are final and the Court cannot review its ordeRs, The' case of Gold Star International and others v. Muslim Commercial Bank Limited (2000 MLD 421) were also relied upon.
9. In case of M/s. Dada Bhoy Cement Industries Ltd. And others v. M/s. National Development Finance Corporation (2002 CLC 166) a Division Bench of the Karachi High Court interpreted the provisions of section 12(2), Civil Procedure Code and observed that:- "Where the facts on the basis of which the validity of decree, judgment or final order has been questioned on the ground of fraud or misrepresentation, application under section 12(2), Civil Procedure Code on the basis of such assertion is not sustainable if the facts were within the knowledge of the aggrieved party during the course of proceedings."
10. In the above-noted judgment of the Dadabhoy Cement Industries Ltd. Case from Karachi jurisdiction neither section 27 of the Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act, 1997, nor the case of Emirates Bank International Ltd. (PLD 1998 Karachi 338) wherein it was held that the application under section 12(2), Civil Procedure Code was not competent in respect of the decree passed by the Special Court, nor by the Division Bench in the case of Mian Munir Ahmad v. United Bank Limited (PLD 1998 Karachi 278) which taking the different view held that the application under section 12(2), Civil Procedure Code before the Special Court is maintainable or in the cases of M/s. Shah Jewana Textile Mills Limited v. United Bank Limited (PLD 2000 Lahore 162) and Gold Star International and others v. Muslim Commercial Bank Limited (2000 MLD 421), wherein it was held that the application under section 12(2), Civil Procedure Code was not competent in respect of the decree passed by the Special Court, were placed for consideration.
11. It is admitted between the parties that respondent former M/s. Habib Credit and Exchange Bank Ltd. Had advanced the amount and the M/s. Highland Shoes Ltd. Judgment-debtor, obtained the facility of loan for the amount which was outstanding against the judgment-debtor, a suit was filed by the respondent. It was not obligatory and requirement of law for the respondent Habib Credit and Exchange Bank Limited to know and mention that M/s. Highland Shoes Limited owed some amount to any other Bank. There was no fraud or concealment of facts on behalf of the respondent.
12. One of the objections raised by the learned counsel for the appellant is that the application under section 12(2), Civil Procedure Code has been dismissed without framing of issues. Since no substantial question of fact and law has been raised by the appellant in the application under section 12(2), Civil Procedure Code, which could have been decided after framing of the issues and recording of the evidence, therefore, it was not obligatory for the Judge, Banking Court, to frame issues. It has been ruled in the case reported as Ghulam Muhammad v. M. Ahmad Khan and 6 others (1993 SCMR 662) as under:--- "It is correct that the determination of allegations of fraud and misrepresentation, usually involve investigation into the questions of fact but it is not in every case that the Court would be under obligation to frame issues, record evidence of the parties and follow the procedure prescribed for decision of the suit. If it were so, the purpose of providing the new remedy would be defeated."
' In this view of the matter, we hold that not only the application under section 12(2), Civil Procedure Code filed by the appellant before the Judge, Banking Court, was not maintainable but also on merits was rightly dismissed vide the impugned order dated 14-1-1998, and therefore, appeal under section 21 of the Banking Companies (Recovery of Loans, Advances, Credit.? And Finances) Act, 1997 is not maintainable.
' Resultantly, this appeal fails and is dismissed with costs on merits as well as being not maintainable.