2006 PLP 1521 (CLD)

JAWWAD S. KHAWAJA, J.

The appellant Mirza Munawar Baig impugns the order dated 12-3-2003 passed by the learned Banking Court, Lahore in proceedings initiated by the respondent-Bank seeking execution of a decree dated 6-10-1996. Since the impugned. order sets out, in brief, the background of the case, the same is reproduced as under:-- "The decree passed way back on 6-10-1996 is still begging its satisfaction. Mirza Munawar Beg-Judgment- debtor, has come up with the application under section 47 read with section 151, C.P.C. that the decree cannot be executed in view of well-known Ruling of the Lahore High Court rendered in Messrs Chenab Cement Product's case reported in PLD 1996 Lahore

672. The judgment-debtors had jointly filed the Writ Petition No.22823 of 1996 taking up the plea that the impugned judgment and decree dated 6-10-1996 be set aside as ultra vires of the Constitution. This petition was dismissed on 5-6-2000. Admittedly, the judgment- debtors had not preferred any appeal against the impugned judgment and decree which, therefore, has attained finality and this Court .had no option but to execute it. The application is dismissed and I proceed with the execution proceedings. The decree-holder shall submit List of Assets and valuation report on 26-3-2003."

2. Before us, learned counsel for the appellant argued that the judgment and decree dated 6-10-1996 was void ab initio because the same was passed against a dead person, namely, Mst. Munazza Jabeen, the wife of the appellant. He added that the said decree did not require to be set aside and was un- executable. To support his contention, learned counsel for the appellant relied on the cases titled Mehr Muhammad v. Dy. Settlement Commissioner and another PLJ 1980 Supreme Court 97; Capt. Shahid Saleem Lone and others v. Ata-ur-Rehman and others 1985 .CLC 2555; Hafiz Brothers (Pvt.) Ltd. and others v. Messrs Pakistan Industrial Credit and Investment Corporation Ltd. 2001 SCMR 1; Mst. Aliya Masood v. Mrs. Mussarat Musaver and others PLD 1993 Karachi 676; Municipal Corporation of Karachi v. Baradio Jumoo Mughal AIR (33) 1946 Sind 20 and Mst. Hawabai and 6 others v. Abdul Shakoor and 8 others PLD 1981 Karachi 277.

3. We have gone through the cited precedents and find that the same are clearly distinguishable. The salient aspects of the present case are that the appellant had filed Writ Petition No.22823 of 1996 to challenge the decree dated 6-10-1996. On 5-6-2000, this petition was dismissed as withdrawn on the statement of counsel for the appellant that he would prefer an appeal. Learned counsel for the appellant conceded that no appeal was, in fact, filed. In none of the cited precedents, facts similar to these existed or were considered. The case-law, therefore, which has been cited at the bar on behalf of the appellant, is inapplicable in the present case.

4. In view of the foregoing discussion, we are in agreement with the learned Banking Court that the decree dated 6-10-1996 had attained finality and it was not open to the Banking Court , in execution proceedings to go behind the same.

5. At this point, we may also add that the arguments advanced before us viz. that the decree was void ab initio and that the same being a nullity did not require to be set aside, were not taken up before the learned Banking Court. Learned counsel for the appellant conceded that the appellant had appeared before the Banking Tribunal and had submitted a reply to the show-cause notice issued to him but had not taken therein the pleas which are now being advanced before us on his behalf.

6. In view of the foregoing discussion, we find no merit in this appeal, which is, therefore, dismissed. S.A.K./M-516/L Appeal dismissed.