2002 PLP 336 (CLD)

Admitted facts of the case (Execution petition), bringing the parties to this crucial juncture, are that, on 10-11-1993, Mashraq Bank, claiming to be the holder of a decree, filed a suit for the recovery of Rs.1,76,80,544.45 against Messrs Amtul Rehman Industries (Pvt.) Limited, the judgment-debtors, before the then Banking Tribunal, Lahore (since defunct). The jurisdictional value of the suit, itself fixed by the decree-holder in para. 52 of the plaint, was Rs.1, 76, 80, 544.45. As the details culminating to the passing of the decree are not relevant for the purposes of decision of the issue in hand, therefore, I have avoided to tabulate the same. Suffice it to .say, that the then 'Banking Tribunal, vide judgment and decree dated 13-2-1996, passed a decree for the recovery of Rs.3,03,25,593.66 against the judgment-debtors. It was specifically mentioned in the decree-sheet that the amount claimed by the Bank in the suit is Rs.1,76,80,544.45, but the decree has been passed for the amount of Rs.3,03,25,593.66. Pursuant to the passing of the aforenoted decree, the Bank, on 25-2-1996, instituted an execution application for the realization of the decretal amount (Rs.3,03,25,593.66 + costs) before the then Banking Tribunal, Lahore, who processed the execution proceedings till on 7-2-2001, the decree-holder filed an application seeking transfer of the aforesaid execution petition to this Court on the ground that since the amount of the execution petition exceeds from Rs.30 Millions, which is. beyond the pecuniary jurisdiction of the Tribunal, therefore, the same may be transferred to this Court. Consequent to the above the learned Tribunal, without examining the legal questions and in the absence of the learned counsel of the judgment-debtors, proceeded to transfer the execution petition to this Court.

2. After the transfer of the execution petition to this Court, in the manner stated above, an application (C.M. No.359-B of 2001) was filed by the judgment-debtors, praying therein that as no executable decree exists in favour of the decree-holder, therefore, the present execution petition, which is, admittedly based upon that decree, may be dismissed. Reply to the said application was filed by the decree-holder vehemently asserting therein that the decree still holds the field and capable of being executed hence, the application is devoid of merits. However, during the arguments on this application, the learned counsel for the judgment-debtors raised an objection regarding the pecuniary jurisdiction of this Court to proceed with the execution of the decree contending therein that as the original' jurisdictional value of the suit, itself fixed by the decree-holder, was admittedly, less than Rs.30 Millions, therefore, according to the provisions of Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act, 1997, the only Court which has the jurisdiction to execute such a decree is the Banking Court, which passed the decree, notwithstanding the fact that ultimately the decree was passed for the amount exceeding Rs.3,03,25;593.66.

3. In the said backdrop, now the question which has arisen for the determination by this Court is, as to whether, this Court has the pecuniary jurisdiction to execute and to further proceed with the execution application or to send it back to the Banking Court, which has transferred the decree on account of lack of pecuniary jurisdiction.

4. Learned counsel for the judgment-debtors, while reiterating his afore-stated objection, submitted that in view of the established legal position and enormous case-law on the subject, this Court should lay its hand off from the lis, as the subject-matter of the suit does not exceed from Rs.30 Millions, therefore, this Court has no jurisdiction in respect thereto. Learned counsel appearing on behalf of the decree-holder, after arguing the case at some length, had to concede to this proposition of law especially in view of the formidable case-law on the subject.

5. Notwithstanding the concession of the learned counsel for the decree-holder, as it is settled law that even the consent of the parties could not confer or take away jurisdiction from the Courts, therefore, I have proceeded to decide the matter in hand. Record of the case manifests that a suit for the recovery of Rs.1,76,80,544.45, out of which the present execution petition has arisen, was filed by the decree-holder against the judgment-debtors, the jurisdictional value and subject-matter of the suit was fixed at Rs.1,76,544.45. It would be advantageous to reproduce para: 52 of the plaint, which is to the following effect:-- "

52. That the value of the subject-matter of the suit for the purpose of court-fee and jurisdiction is Rs.1,76,80,544.45 and liquidated damages at the rate of 20% and Court-fee of Rs.15,000 maximum is fixed on the plaint." No doubt, subsequently, the then Banking Tribunal proceeded to pass a decree for the recovery of Rs.3,03,25,593.66, however, it has been incorporated in the decree-sheet that the amount claimed was Rs.1,76,80,544.45, but the decree was passed for Rs.3,03,593.66. In this case jurisdictional value, originally fixed by the decree-holder was Rs.1,76,80,544.45, which will determine the forum of appeal /revision, which definitely falls within the pecuniary jurisdiction of the Banking Court. It is settled law that the valuation of the suit, itself fixed by the plaintiff in the plaint, determines the jurisdiction of the Court and will subsequently be the basis for determination of the forum for the purposes of filing of the appeal etc. Valuation, which also means the subject-matter of the suit, of the relief claimed by the plaintiff' in the plaint determines the forum of appeal. It has been held in Government of Pakistan v. Messrs Allah Bakhsh 2000 CLC 1598 and Ditta Khan v. Muhammad Zaman and others 1993 MLD 2105 that forum of appeal will depend not only on the amount mentioned in the suit as per Order VII Rule 2, C.P.C. but also on the valuation fixed by the plaintiff himself for the purposes of court-fee and jurisdiction.

6. In view of the case-law cited by the learned counsel of both the parties I am of the considered view that the determining factor, for the purposes of jurisdiction, shall be the amount fixed by the plaintiff' in the suit and on which amount the subject-matter of the suit has been valued. Once the plaintiff determines the value of the suit/relief in the plaint that shall be conclusive for the purpose of determining the forum of appeal etc.

7. In view of the above conclusions and findings I am of the considered view that this Court can neither entertain this execution petition nor undertake the execution proceedings on account of lack of pecuniary jurisdiction. In this case the c Banking Court, which initially assumed the jurisdiction on the basis of the value fixed by the decree-holder in the plaint itself, is the only Court which has the pecuniary jurisdiction to execute the decree, to decide the other matters relating to the execution, discharge and satisfaction of the decree and to deal with all the ancillary matters relating thereto. The net result is that the objection of the learned counsel of the judgment -debtors regarding the want of pecuniary jurisdiction prevails, thus, I am constrained to hold that this Court has no jurisdiction to try this execution petition and, therefore, the decree shall stand transferred to the Banking Court No-4, Lahore, for its execution. Resultantly, the execution petition shall deemed to be pending before the Banking Court No.IV, Lahore, who shall take cognizance of the matter, decide the pending applications, including C.M. No.395-B of 2001 and shall proceed to execute the decree, of course, in accordance with law. Office is directed to send the complete file of the case to the said Banking Court and the parties we directed to appear before the Judge Banking Court No.IV, Lahore, on 2-9-2001. Q.M.H./M.A.K./M-758/L Order accordingly.