' United Bank Limited, through the filing of the present Constitutional petition, has called in question order dated 17-9-1998, whereby the then Banking Court, while accepting respondent's petitioner's application for the execution of the decree dated 28-2-1996.
2. Briefly stated, the facts, as discernable from the available record, are that the petitioner-Bank filed a suit for the recovery of Rs.3,593,101 against the respondents, who submitted reply to the show-cause notice and simultaneously filed a Constitutional petition (Writ Petition No,4676 of 1995) thereby challenging the vires of the Banking Tribunals Ordinance, 1984. The said petition was admitted to regular hearing be this Court on 13-4-1995. On 28-2-1996, petitioner's afore-noted suit was decreed by the then Banking Tribunal. Consequent to the above, the respondents filed an amended Constitutional petition. On 30-5-1996, the petitioner filed an execution petition, wherein the Court Auctioneer for the sale of the mortgaged property was appointed. The said Constitutional petition was decided, alongwith the other numerous petitions by the Full Bench of this Court, reported as Messrs Chenab Cement Product (Pvt.) Ltd. And others v. Banking Tribunal, Lahore and others PLD 1996 Lahore 672. On an application filed by the petitioner, the execution petition, which was previously consigned to the record, was revived by the learned Executing Court and process for the sale was initiated. Confronted with the execution proceedings, the respondents filed an objection petition, thereby objecting to the sale of the properties, the continuation of the execution proceedings and prayed for the dismissal of the execution petition. The said petition was resisted by the petitioner and ultimately, the learned Banking Court allowed respondent's application and dismissed the execution petition vide impugned order dated 17-9-1998, hence the present petition.
3. The learned counsel for the petitioner has contended that in view of para 12 of the judgment, passed by the Full Bench of this Court Messrs Chenab Cement Product (Pvt.) Ltd. And others v.
Banking Tribunal, Lahore and others PLD 1996 Lahore 672, the case of the respondents does not cover within the term "past and closed transaction" and therefore, the learned Banking Court rightly revived the execution petition. Conversely, the learned counsel for the respondents has submitted that the present Constitutional petition is not maintainable as remedy of appeal was provided under the Act, 1997.
4. The impugned order dated 17-9-1998 was passed by the learned Banking Court in exercise of its powers under section 18(6) of the Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act, 1997. Undoubtedly, under section 21(5) of the afore-noted Act, a remedy of appeal is provided in such-like cases, which envisages that "no appeal review or revision shall lie against an interlocutory order of the Banking Court other than the order passed under subsection (6) of section 18". It flows therefrom that the Legislature, in addition to providing a right of appeal under section 21(1) of Act, 1997, has also allowed to file an appeal, review or revision against an order passed under section 18(6) of the Act, 1997, which appeal is to be filed within a period of 30 days from the date of the order. The petitioner did not file any appeal, but instead thereof, after the expiry of period of limitation, prescribed under the law for filing an appeal, it filed the present Constitutional petition. In view of the afore-noted provision of law, a remedy of appeal against the impugned order dated 17-9-1998 is provided, which, in all fairness, is adequate and efficacious remedy. It has been held in the case of Messrs Chenab Cement Product (Pvt.) Ltd. And others v.
Banking Tribunal, Lahore and others PLD 1996 Lahore 672 that the invocation of Constitutional jurisdiction under Article 199 is not allowed, in cases where the remedy of statutory appeal is available and such remedy is effective and adequate. It has been held in Syed Match Company Ltd. Through Managing Director v. Authority under Payment of Wages Act and others 2003 SCMR 1493 that the party had no discretion to ignore provision of appeal and file the Constitutional petition instead. In the said case the tendency of bypassing the remedy provided under the relevant statute and to press the Constitutional petition, was disapproved by the apex Court of this Country. The petitioner, without availing the alternate remedy of appeal and after the expiry of period of limitation for filing an appeal, has come to this Court with the Constitutional petition which is not tenable under Article 199(1) of the Constitution of Islamic Republic of Pakistan, 1973.
5. As I am inclined to dismiss the present petition on account of its non-maintainability and incompetency, therefore, I have refrained myself from giving any findings on the merits of the case.
6. In the above perspective, the present petition is not maintainable under the law, thus, the same stands dismissed leaving the parties to bear their own costs.