2007 PLP 38 (SCMR)

RANA BHAGWANDAS, J.

Petitioner-Bank seeks leave to appeal against Sindh High Court, Larkana Circuit Court order, dated 5-7-2002 passed in constitutional petition whereby execution proceedings arising out of judgment and decree passed by Banking Court, Larkana in the sum of Rs.1,68,921 with costs and mark-up passed against the respondent were suspended till the decision of an appeal filed by the Management against reinstatement of the respondent before the Sindh Labour Appellate Tribunal, Karachi.

2. Petitioner-Bank filed a suit for recovery before the Banking Court against the respondent which after contest was decreed as aforesaid vide judgment, dated 18-4-1998. However, the decree sheet was signed by the Presiding Officer on 14-12-1998. On the other hand respondent having been dismissed from service had challenged such order before the Sindh Labour Court, Larkana, which was allowed and an appeal preferred against the order of the Labour Court was sub-judice before the Tribunal-respondent, however, did not challenge the judgment and decree of the Banking Court passed against him with the result that the Bank initiated execution proceedings against him in which a non-bailable warrant of arrest was issued against him in order to enforce the decree. Last order repeating coercive measures against the respondent was passed on 11-3-2002, whereupon respondent apprehending his arrest and coercive action in execution of the decree filed a constitutional petition before the Sindh High Court, Circuit Court, Larkana seeking the following prayers:-- "(a) That this Honourable Court may be pleased to suspend the N.B.W. issued against the petitioner by the Banking Court No.1. (b) That the Honourable Court may further be pleased to suspend the proceedings of Execution until the competent Court decided the appeal against dismissal of the petitioner."

3. When the petition came up before learned Single Judge of the High Court it appears that by consent of the counsel for the petitioners and in presence of Additional Advocate-General, Sindh impugned order was passed leading to this petition.

4. We have heard Mr. Rizwan Ahmed Siddiqui, learned Advocate Supreme Court for the petitioner and the respondent in person. As the respondent could not effectively place his view-point before the Court. Mr. Ghulam Qadir Jatoi, Advocate Supreme Court volunteered to hold brief for him and was permitted to address the Court in order to explain the view-point of the respondent.

5. Learned counsel for the petitioners seriously assailed the vires of the impugned order as learned Single Judge of the High Court was not competent to suspend the execution proceedings in constitutional jurisdiction arising out of a Banking Court decree which had attained finality by reason of not being appealed against.

6. Respondent, however, contended that the impugned order was passed by consent of the counsel for the petitioner-Bank, therefore, it should not be interfered with by this Court.

7. Be that as it may, the fact remains that the consent of parties does not confer jurisdiction upon the High Court which it did not inherently possess. Since the judgment and decree passed by Banking Court were appealable under the Banking Laws, only remedy available to respondent was to assail such judgment and decree before a Division Bench of the High Court and invocation of writ jurisdiction against execution proceedings before a single Judge of the High Court was neither warranted by law nor permissible.

8. Mr. Jatoi holding brief for the petitioner relied upon the case of Farzand Raza Naqvi v. Muhammad Din 2004 SCMR 400 in support of his submission that order impugned in the constitutional petition being void and without lawful authority non-availing of alternate remedy of appeal was of no consequence. We are afraid we cannot subscribe to this view of the learned counsel as the judgment and decree passed by the Banking Court with exclusive jurisdiction was neither void nor without jurisdiction. In fact it was required to be challenged in appeal before the High Court under Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act, 1997 but the respondent having accepted it did not assail the same which attained finality for all intents and purposes and execution proceedings arising out of such decree could not be assailed in writ jurisdiction, moreso before a single Judge of the High Court. We are fortified in our opinion by Mst. Kaniz Fatima v. Muhammad Salim 2001 SCMR 1493 in which it was authoritatively held by this Court that where a particular statute provides a self-contained machinery for the determination of- questions arising under the Act and where law provides a remedy by appeal or revision to another Tribunal fully competent to give any relief any indulgence to the contrary by the High Court is bound to produce a sense of distrust in statutory Tribunals and constitution petition without exhausting remedy provided by the statute would not lie in the circumstances.

9. No other point has been urged by the respondent against the petition which must succeed for the aforesaid reasons.

10. Consequently, we convert this petition into appeal and on acceptance set aside the impugned order of the High Court leaving the parties to bear their own costs. H.B.T./M-185/SC Appeal accepted.