2001 PLP 737 (CLC)

The learned counsel for the applicants has also referred to the case of Mst. Ashraf Bibi v. Barkat Ali PLD 1956 Lah. 27 where B.Z. Kaikaus, J. (as he then was) while examining the scope of section 152, C.P.C. had come to the conclusion that as soon as the Court discovers that decree does not, in fact, follow the compromise on account of a patent slip or a mistake, it becomes. its duty to correct the mistake and a Court under section 152, C.P.C. can act even suo moto. The learned counsel for the applicant has also referred to an unreported judgments in Banking Suit No.1472 ‑of 1997 (National Development Finance Corporation v. Anwarzaib White Cement Limited and others) while discussing the scope and applicability of section 152, C.P.C. in Banking Cases it was held by Mushtaq A. Memon, J. (as he then was) as under:‑‑ .Mr. Mansoorul Arfin who represents the defendants; without prejudice to the defendants' case, points out that the order passed by this Court has attained finality by virtue of section 27 of Act (XXV of 1997) and cannot be revised or reviewed except in an appeal preferred under section 21 of the said Act. Reference has been made to order, dated 24‑4‑1998 passed by me in Suit No.67 of 1987 (Muslim Commercial Bank v. Adamjee Industries Ltd. and others) whereby I had declined to review the order dismissing application for leave to defend." It has been further held as under:‑‑ . ".... It is true that an order passed by this Court cannot be revised or reviewed except in appeal by virtue of section 27 of Act (XXV of 1997), the power to rectify clerical or arithmetical mistakes in the judgments, decrees or orders on account of accidental slip or omission is inherent in every judicial, quasi judicial and administrative forum. Indeed, section 152 of the Code of Civil Procedure confers specific power of rectification upon the Court exercising civil jurisdiction. The rectification of apparent mistakes do not amount to. review or revision of orders or judgments. The equity and propriety, too, requires exercise of such power in appropriate cases." The learned counsel for the applicants has also, pointed out that as per clause. (7) of the compromise application. In the event of non -implementation of the terms and conditions of compromise the parties have to renegotiate instead of filing of the execution application as done by the plaintiff/decree‑holder in this case. Mr. Bashir Ahmad, learned counsel for the plaintiffs/decree‑holders has argued that the Banking Companies (Recovery of Loans, Advances, Credits and Finance) Act, 1997, is special enactment and, as such, section 152 of the C.P.C. is not applicable hence the application is not maintainable according to law. The learned counsel has further stated that under section 27 of the said Ordinance no Court or other authority has any power to revise, review any order, judgment, decree passed by a Banking Court. In support of his contention the learned counsel has relied on Messrs Gold Star International and another v. Muslim Commercial Bank Limited 2000 MLD 421 wherein it has been held as under:‑‑ "We also find force in the submission of the learned counsel for the respondent that under section 27 of Act XXV of 1997 subject to the provisions of appeal the judgment and decree attains finality and cannot be called in question. Act XXV.of 1997, which is a special law provides the remedies. to the parties concerned including the right of appeal under section 21 of the Act and an application in the nature of section 12, of the Act if and when warranted by the circumstances. " The learned counsel has further argued that in fact the decree has been prepared in accordance with the mandatory requirements of section 15 of the Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act, 1997 which reads as under:‑‑ " 15(1). The decree shall provide for interest or mark‑up, as the case may be, on the judgment‑debt from the date of institution of suit to payment. ' (a) in the case of a loan, for interest at the contracted rate or at the rate of two per cent. above the State Bank Repo rate whichever is higher; and (b) in the case of finance under a system not based on interest for mark up at the contracted rate or at the latest rate of the banking company for similar finance whichever is higher." The learned counsel has, therefore, vehemently urged that under the circumstances application under section 152, C.P.C. is not maintainable according to law and even otherwise the relief claimed, if allowed, shall amount to reviewing the judgment and decree for which there is a clear bar under section 27 of the Act, hence on this score as well, the application is liable to be dismissed. Everting to the first contention raised by the learned counsel for the plaintiffs/decree‑holder that an application under section 152, C.P.C. is not maintainable before a Banking Court. I am of the view that the said contention is based on misconception of law. Section 3 of the Act XXV clearly states that the provisions of this Act shall be. in addition to and, save as hereinafter expressly provided, not in derogation of any other law for the time being in force". Moreover, powers of a Banking Court have been defined in section 7 of the Act and in clause (a) of section 7, it has been clearly mentioned that in exercise of civil jurisdiction a Banking Court shall have all the powers vested in a Civil Court under the Code of Civil Procedure, 1908, except those powers which have been expressly excluded with reference to particular sections of the Code of Civil Procedure. A look at clause (2) of section 9 of the Act makes ,the things more clear, where applicability of section 10 of the Code of Civil Procedure has been made inapplicable, section 9(2) of the Act reads asunder:‑‑ "The provisions of section 10 of the Code of Civil Procedure, 1908, shall have no application for and in relation to suits filed hereunder." This view also finds support from the case‑law reported in 2000 MLD 421 which has been cited by the learned counsel for the plaintiff. Application under section 12(2), C.P.C. filed before the Banking Court was dismissed not only on merits but also in view of the fact that Act XXV of 1997 which is a special law provides remedies to the parties concerned including the right of appeal under section 21 of the Act and an application under section 12 of the Act if and when warranted by the circumstances. Thus, it would be seen that this Court is not divested of its powers under section 152, C.P.C. in making necessary corrections or amendments in a decree if the same is found to be not in consonance with the terms of compromise filed by the parties, as a result of accidental slip or omission. No doubt, in a consent decree the Court is not expected to insert something, from outside, to which the parties to the compromise had not agreed. Under the circumstances I am of the considered view that 'in a banking case an application L..Jer section 152, C.P.C. is maintainable and the Court is competent to correct/modify the mistakes in decree if caused due to some e clerical and arithmetical mistake due to accidental slip or omission., However, the moot point for consideration in this matter will be as to whether the amendments sought to be made in the decree stand. covered under section 152, C.P.C. when the scope of amendments and correction under this section is only to the extent of clerical and arithmetical mistakes. A look at the compromise application, the judgment accepting and allowing the compromise and the decree prepared in pursuance thereof, clearly shows that difference between the terms of compromise, the judgment and decree is not due to any accidental slip or omission. On the contrary it appears that the Court while passing the judgment and preparing the decree has incorporated so many other things which do not find place in the compromise application viz. the difference in the rate of interest/mark‑up, the date from which it has been ordered to be charged in accordance with section 15 of the Act and further order for sale of the mortgaged property which cannot be considered to be a result of an accidental slip, mistake or omission. On the contrary it appears that the learned Judge in his own wisdom, felt it necessary to include and add the same in the judgment and decree and most probably in order to bring the compromise in conformity with the various provisions of the Act.. I am in respectful agreement with the case‑law cited by Mr. Mansoorul Arfin, learned counsel for the applicant, that a decree should bel in accordance with the terms of the compromise, but I am of the humble view that under the circumstances as discussed above, it is not a case falling within the ambit of section 152 or 151, C.P.C. and most probably the remedy which was available to the J.D./applicant was by way of an appeal under section 21 of the Act. Resultantly, this application is not maintainable H.B.T./B-21/K Application rejected.