2009 PLP 53 (CLD)

ALI AKBAR QURESHI, J.

This civil revision is directed against the order dated 2-7-2007 passed by the learned Additional District Judge, Sialkot whereby the order of the learned trial Court to reject the plaint under Order VII, Rule 11, C.P.C. was set aside and the case was remanded for afresh decision.

2. The respondent instituted a suit questioning the auction made by the learned Banking Court No.4, Lahore in execution of a decree passed in the suit titled as Grindlays Bank Limited v. Samanda and Sons Suit No.41 of 1997. The said property was purchased by the petitioner on 23-6-2000 and in consequence of the said sale, a sale certificate was issued to the petitioner on 18-7-2000, The petitioner mainly challenged the sale on the ground that the property was part of joint Khata and undivided, therefore, the sale of the land giving specific area and number could not be auctioned. The petitioner filed an application under Order VII Rule 11 read with section 151, C.P.C. whereas the other defendants of the suit filed, the consenting written statement in the application under Order VII Rule 11, C.P.C. The petitioner submitted that as the sale was made in pursuance of an auction by the learned Banking Court in execution of a decree under the Banking Courts Act, 1997, therefore, the Civil Court has got no jurisdiction to entertain and decide the matter. It was also submitted in the said application that the sale made by the Banking Court can only be questioned by the respondent by filing an objection petition under the relevant law. The learned trial Court after receiving the reply of the application and hearing the matters of the parties, finally accepted the application under Order VII, Rule 11, C.P.C. and rejected the plaint being barred by law. The respondent being aggrieved of the said order, filed an appeal. The learned appellate Court heard the arguments of the parties and finally accepted the appeal on the ground that the civil Court has the jurisdiction to entertain and decide the matter and finally set aside the judgment and decree and remanded the case for afresh decision to the learned trial Court.

3. The learned counsel for the petitioner contended that in view of the dictum laid down by the Honourable Supreme Court of Pakistan in Pakistan Fisheries Ltd., Karachi and others v. United Bank Ltd. PLD 1993 SC 109 because of the specific bar given in the Banking Court Act, 1997, the civil Court had no jurisdiction to entertain and decide the matter. The learned counsel also submitted that the judgment and decree and the sale by auction, can only be challenged by filing the petition under Order XXI, Rule 92, C.P.C. and the learned trial Court rightly rejected the plaint whereas the learned appellate Court accepted the appeal on a flimsy ground not available in the law. The learned counsel has also placed reliance on S. M. Shah Ahmad Zaidi through Legal Heirs v. Malik Hassan Ali Khan (Moin) through Legal Heirs 2002 SCMR 338.

4. The respondent present in person, submitted that the civil Court had the jurisdiction to entertain and decide the matter as the learned Banking Court has auctioned the undivided property of the petitioner and the petitioner has already filed a suit for partition, which is still pending adjudication. The respondent again and again submitted that the land auctioned by the Banking Court was neither mortgaged nor pledged with the Bank and the same is owned by the respondent, therefore, the civil Court can take the cognizance of such type of illegalities, if committed by any one but the respondent has failed to cite any law to confront the contention raised by the learned counsel for the petitioner regarding the maintainability of the suit before the civil Court.

5. I have heard the learned counsel for the petitioner as well as the respondent in person and perused the record.

6. Undeniably, the petitioner purchased the land in question in open auction being highest bidder conducted by the learned Banking Court No.4, Lahore to execute a decree passed by the said learned Court. In the aforesaid Banking Court, Act, 1997, section 27 deal with this proposition whereby the jurisdictional of the civil Court to entertain the matter relating to the affairs of the Banking Company has barred. Further, the judgment referred by the learned counsel for the petitioner is very much clear on the point and there is no cavil with the proposition that the civil Court had no jurisdiction Particularly in such like eases to entertain a civil suit wherein the judgment and decree or any action of Banking Court has been challenged. The learned appellate Court in a very novel way has observed in pares-7 of the judgment that "no where in this section (Order XXI, Rule 89, C.P.C.) has been mentioned that civil Court cannot sit in a judgment if some auction has been made regarding the property of a person who has interest in the same. The only remedy available to the respondent to challenge the validity of the sale made in favour of the petitioner in pursuance of an auction conducted by the learned Banking Court IV, Lahore by filing an application/objection petition before the learned Banking Court, who had the jurisdiction to validate or invalidate the auction, if not conducted in accordance with law. The learned appellate Court has committed jurisdictional defect, legal infirmity and material irregularity by accepting the appeal and set aside the judgment and decree passed by the learned trial Court.

7. For the foregoing reasons, this petition is allowed with no order as to costs. S.A.K./S-141/L Petition accepted.