2004 PLP 207 (CLD)

(iii) Mortgage deed dated 14‑6‑1990 executed by Mst. Riffat Shahbaz. (iv) Guarantee dated 16‑7‑1990 furnished by Ijaz Rasool. (v) Guarantee dated 16‑7‑1990 furnished by Farhat Shahbaz. (vi) Guarantee dated 16‑7‑1990 furnished by Tariq Shahbaz Chaudhry. (vii) Guarantee furnished by Rahat Shahbaz. (viii) Guarantee furnished by Shahida Shahbaz and Riffat Shahbaz. (ix) Guarantee furnished by Farhat Shahbaz and Riffat Shahbaz. (x) Guarantee furnished by Riffat Shahbaz. (xi) Guarantee furnished by Shahida Shahbaz. Respondent No.2, guarantors and mortgagors failed to honour their commitment. Respondent No. 1 being aggrieved filed a suit for recovery on 15‑12‑1996 before the Banking Tribunal established under Banking Tribunals Ordinance, 1984. The Banking Court passed the decree against the appellants and respondents Nos.2 to 5 amounting to Rs.20,54,

549. The respondent‑Bank filed execution petition before the Executing Court. The appellants filed objection petitions/applications before the Banking Court under Order XXI, rules 58 to 60, C.P.C. read with sections 151 and 12(2), C.P.C. which were dismissed by the Banking Court vide order dated 17‑10‑1998. Hence the present appeal.

2. Learned counsel of the appellants submits that decree is nullity in the eye of law as the appointments of Presiding Officers of the Banking Tribunals were declared unconstitutional, void and provisions of the Ordinance were also declared ultra vires qua the provisions of Constitution in Messrs Chenab Cement Products (Pvt.) Ltd. v. Banking Tribunal Lahore and others PLD 1996 Lahore 672 vide judgment dated 21‑7‑1996. He further submits that this fact was not considered by the Banking Court in impugned order. He further urges that impugned order is not in accordance with law laid down by the Division Bench of this Court in Muhammad Ashraf v. Chairman, Banking Tribunal NLR 1998 Civil

18. He further submits that when the decree is nullity in the eye of law then Executing Court has the power to go behind the decree under section 47 of C.P.C. He further submits that financial facility was awarded to respondent No.2 by respondent No. 1 in the year 1990 and the appellant has given guarantee qua the said facility whereas the agreement was executed between respondent No. 1 and respondent No. 2 subsequently on 19‑8‑1993. Therefore, suit filed by the respondent‑Bank before the Banking Court was time‑barred. In support of his contention he relied upon "Divalu Mal v. Nandu Shah Dev Raj and others AIR 1931 Lah. 691; PLD 1975 Karachi 61" (there is no judgment at this page). He further submits that guarantees furnished by the appellants are not witnessed by two witnesses. Therefore, guarantees could not be used against the appellants in the eye of law as the same were executed in violation of Article 17(2) of Qanun‑e‑Shahadat Order, 1984. In support of his contention he relied upon "PLD 1995 Lahore 295" (There is no judgment at this page). He further submits that time is prescribed under section 22 of Act No. XV of 1997. Therefore, Court has no jurisdiction to extend the time when the time has been prescribed under the Statute. In support of his contention he relied upon E.A. Evans v. Muhammad Ashraf PLD 1964 SC

536. He further urges that it is the duty and obligation of the Court to see whether the suit filed by the respondent‑Bank was within time or not in view of section 3 of the Limitation Act. In support of his contention he relied upon Hakim Muhammad Buta v. Habib Ahmad and others PLD 1985 SC

153. Learned counsel of the appellants in support of his contentions also relied upon Nathu Mal‑Ram Das v. B.D. Ram Sarup AIR 1932 Lahore 169 and Jawahar Lal v. Mathura Prasad and another AIR 1934 Allahabad 661.

3. Learned counsel of the respondent‑Bank submits that initially suit was filed by the respondent‑Bank before the Tribunal constituted under the Banking Tribunals Ordinance, 1984. The suit was pending before the Banking Tribunal' till 21‑7‑1996 when the Full Bench of this Court declared the appointment of Presiding Officers of the Banking Tribunals to be nullity in the eye of law in Messrs Chenab Cement Products (Pvt.) Ltd. v. Banking Tribunal Lahore and others PLD 1996 Lahore 672 vide judgment dated 21‑7‑1996. He further submits that Full Bench of this Court observed that pending cases be transferred to the Banking Court concerned. Therefore, by operation of judgment of the Full Bench of this Court the suit of the respondent No. 1 was transferred before the competent Court. The competent Court has passed the decree against the appellants and respondents Nos.2 to 5 vide judgment and decree dated 2‑12‑1997. The appellants have not challenged the vires of the decree till date. Therefore, judgment and decree of the Banking Court has attained finality. As such the Banking Court was justified to dismiss the application of the appellants. He further submits that guarantees attached by the appellants with Civil Miscellaneous No.2/C of 1998 contained the signatures of two witnesses. Therefore, guarantees were executed in accordance with law. Even otherwise the guarantees given by the appellants at the time of sanctioning first loan facility to respondent No.2 by respondent No. 1 in the year 1990 would continue in view of clauses 1 to

3. The suit of the respondent‑Bank was not time‑barred as the loan facility was extended by the respondent‑Bank in favour of respondent No.2 on the request of respondent No.2 and original guarantees would remain in the field in terms of the guarantees. He further submits that impugned order is valid and suit was within time.

4. We have given our anxious consideration to the contentions of the learned counsel of the parties and perused the record ourselves.

5. It is better and appropriate to reproduce basic facts in chronological order to resolve the controversy between the parties‑‑ (i) Finance facility was availed by respondent No.2 from respondent No. 1 in the year 1990 as is evident from documents attached by the appellants alongwith C.M. No.2 of 1998. (ii) Appellants have furnished guarantees at the time of sanctioning loan facility by respondent No. 1 in favour of respondent No.2. (iii) The contents of the guarantees reveal that same would remain in the field in view of clauses 1 to 3. (iv) Respondent No. 1 extended loan facility to respondent No.2 from time to time and last agreement executed between the parties on 19‑8‑1993. (v) The guarantees furnished by the appellants were dully attested by the two attesting witnesses. (vi) Respondent No.2 failed to repay the outstanding of the respondent‑Bank. Respondent‑Bank filed a suit before the Banking Tribunal constituted under Banking Tribunals Ordinance, 1984 on 15‑12‑1996. (vii) Full Bench of this Court declared the appointment of the Presiding Officers of Banking Tribunals and certain provisions of the Banking Tribunals Ordinance as ultra vires in view of conflict with the provisions of the Constitution vide judgment dated 21‑7‑1996 PLD 1996 Lahore 672. (viii) The Full Bench observed that pending cases be transferred to the concerned Banking Courts as observed in para. 13 of the judgment of the Full Bench of this Court. (ix) The suit filed before the Banking Tribunal was transferred by operation of judgment of the Full Bench to the concerned Banking Court. (x) The Banking Court passed the decree vide judgment and decree dated 2‑12‑1997. It is pertinent to mention here that judgment and decree was passed on the statement of counsel of the respondent as is evident from para. 1 of memorandum of appeal before this Court. In case the aforesaid facts are put in a juxta position then judgment and decree of the Banking Court is not nullity in the eye of law. Therefore, all the contentions raised by the learned counsel of the appellants have no force. It is settled principle of law that Executing Court cannot go behind the decree. It is also settled principle of law that parties are bound by their pleadings. It is pertinent to mention here that the contentions raised by the learned counsel of the appellants before us have not been taken by the appellants in their application filed by the appellants before the Executing Court as well as in the memorandum of appeal before this Court. Learned counsel of the appellants is not allowed to raise pleas' which were not taken before the Executing Court as well as in the memorandum of appeal before this Court which is not in accordance with law laid down by the Honourable Supreme Court in Mst. Murid Begum v. Muhammad Rafiq PLD 1974 SC

322. It is also settled principle of law that limitation in respect of guarantee would start from the date of cause of action when demand is made or suit is filed as the law laid down by the Karachi High Court in Messrs United Bank Limited's case PLD 1968 Karachi

464. Therefore, we do not find any infirmity or illegality in the impugned order of the Banking Court. In view of what has been discussed above, this appeal has no merit and the same is dismissed. H.B.T./T‑152/L Appeal dismissed.