MIAIM HAMID FAROOQ, J.- Through the filing of the present Constitutional petition, the petitioner has called in dated 2.4.1994, whereby the then Banking Tribunal, passed a decree for the recovery of Rs.
9,70)139.10, against the petitioner and respondent No. 3.
2. Brief facts, leading to the filing of the present petition are that pursuant to filing 'a suit for the recovery of Rs. 9,70,139.10 by the respondent-bank, against the petitioner and respondent No. 3, before the then learned Banking Tribunal (since defunct), the defendants in the suit were issued show-cause notice, as prescribed under Section 6(2) of Banking Tribunals Ordinance, 1984, and the defendants filed reply to the show-cause notice, thereby objecting to the jurisdiction of the Tribunal. Subsequently, a separate application under Order VII, Rule 10, C.P.C, was also filed by the petitioner. However, the Banking Tribunal rejected the said application on 2.6.1994 and through a composite order, decreed the suit for the recovery of Rs. 9,70,139.10, against the petitioner and respondent No. 3, with costs vide judgment and decree dated 2.6.1994 and further ordered that the decree shall be executed by the sale of the mortgaged property. The petitioner filed an application seeking recalling of the aforesaid judgment, however, he without waiting for the decision of the said application, challenged the said judgment and decree through the present petition.
3. Learned . Counsel for the petitioner, while relying upon Messrs Chenab Cement Product (Pvt.) Ltd.
And others Vs. Banking Tribunal, Lahore and others (PLD 1996 Lahore '672), has contended that since certain provisions of the Banking Tribunals Ordinance, 1984 and the notifications appointing Presiding Officers of the Banking Tribunals were declared unconstitutional, therefore, the impugned judgment rendered by the learned Banking Tribunal is without jurisdiction and deserves to be set aside. He has further contended that as the decree passed by the learned Banking Tribunal has been challenged through the filing of the present Constitutional petition, therefore, the said decree was not saved and deem to have been set aside. The learned counsel, while relying upon para 12 of the aforesaid judgment of Chenab Cement, has submitted that the instant case is not covered under the term "past and closed" and the decree passed in this case by the Banking Tribunal is no more executable. He has further submitted that although no appeal was filed by the petitioner challenging the decree yet in the' present set of circumstances, the writ petition is competent. He has reinforced his arguments by saying that the petitioner was condemned unheard as on 2.6.1994, the case was fixed only for the decision of an application under Order VII, Rule 10, C.P.C., and the main case was not fixed for hearing, thus, the main judgment was rendered at the back of the petitioner.
On the other hand, the learned counsel for the respondent-bank has contended that the petitioner did not file any appeal against the decree, therefore, in view of the judgment rendered by the Full Bench in an unreported case, the present Constitutional petition cannot proceed and deserves to be dismissed.
4. In this case, the judgment and decree was passed by the then Banking .Tribunal on 2.6.1994 and the petitioner did not file any appeal, within the stipulated- period, as prescribed under the law, thereby challenging the said judgment and decree and instead thereof filed the present Constitutional petition on 15.9.1994 challenging the said judgment. Subsequently, the Court in a case reported as Messrs Chenab Cement Product (Pvt.) Ltd. And others \/s. Banking Tribunal, Lahore and others (PLD 1996 Lahore 672), while disposing of various Constitutional petitions, wherein decrees passed by the Banking Tribunal were challenged, declared certain provisions of Banking Tribunal Ordinance, 1984, as un-Constitutional and notifications appointing Presiding Officers of the Banking Tribunals, issued under the Banking Tribunals Ordinance, 1984, were also declared as unconstitutional and were, thus, quashed. However, this Court in para 12 of the aforesaid judgment has observed that the declarations made shall not effect the cases "past and closed" or invalidate the judgments and decree which have become final.
5. Subsequently, a question arose as to what is the effect of observations made by the Full Bench of this Court in para 12 of the judgment - reported as Messrs Chenab Cement Product (Pvt.) Ltd. And others t/s. 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 afore noted Full Bench, viz. 21.7.1996, against which no appeal was filed, though they were challenged through filing the Constitutional petitions, are saved and not affected by the said judgment. The Full Bench of this Court, while deciding W.P. No. 12374/99 (Syed Farasat Ali Shah Vs. Allied Bank of Pakistan) and other connected petitions came to the following conclusions;- "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 is 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 afore-noted 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 by Chenab Cement Products case, in that event the said decree could not be covered within the scope of para 12 of judgment of Cheman 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 petition, 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 afore-mentioned 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."
6. As in the present case, the judgment and decree dated 2.6.1994 was not challenged through filing of an appeal, but the same was called in question through the filing of the present Constitutional petition, therefore, for the reasons recorded and findings given in the afore-noted judgment of Sayed Farasat Ali Shah, I am constrained to hold that the present petition, .Filed by the petitioner, challenging the judgment and decree, is devoid of any force, thus, the same is dismissed with no order as to costs. The result would be that the decree passed in this case 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.