2004 PLP 736 (CLD)

I have gone through the application under section 12(2), C.P.C. and documents filed alongwith it. From the record it appears that prima facie the applicant is owner of the said plot, bearing Survey No.30, Survey Sheet 35P/I, Plot No.Rl‑19, measuring 597 square yards, Overseas Cooperative Housing Society Ltd., whereas the decree passed by the Court is in respect of some properties stated to bearing No.33/4, Block 7 and 8, Banglore Cooperative Housing Society Ltd., main Share‑a‑Faisal, Karachi, though situated at the rear side of Plot No. RL/4, owned by the defendants. In order to appreciate the point, I would like to reproduce Order XXI, rule 58, C.P.C., section 12(2), C.P.C. and subsection (7) of section 19 of Financial Institutions (Recovery of Finances) Ordinance, 2001, which read as under:‑‑ "Order XXI rule 58; Investigation of claims to, and objections to attachment of, attached property.‑‑‑(1). Where any claim is preferred to, or any objection is made to the attachment of, any property attached in execution of a decree on the ground that such property is not liable to such attachment, the Court shall proceed to investigate the claim or objection with the like power as regards the examination of the claimant or objector, and in all other respects, as if he was a party to the suit:

12. Bar to further suit:‑‑ (1) Where a plaintiff is precluded by rules from instituting a further suit in respect of any particular cause of action, he shall not be entitled to institute a suit in respect of such cause of action in any Court to which the Code applies. (2) Where a person challenges the validity of a judgment, decree or order on the plea of fraud, misrepresentation or want of jurisdiction, he shall seek his remedy by making an application to the Court which passed the final judgment, decree or order and not by a separate suit.

19. Execution of decree and sale with or without intervention of Banking Court:‑‑ (1) .............. (2) .............. (3) . (4) .............. (5) .............. (6) .............. (7) Notwithstanding anything contained in the Code of Civil Procedure 1908 (Act V of 1908), or any other law for the time being:‑‑ (a) The Banking Court shall follow the summary procedure for purposes of investigation of claims and objections in respect of attachment or sale of any property, whether or not mortgaged, pledged or hypothecated, and shall complete such investigation within 30 days of ‑ filing of the claims or objections: (b) If the claims or objections are found by the Banking Court to be mala fide or filed merely to delay the sale of the property, it shall impose a penalty up to twenty per cent. of the sale price of the property: (c) The Banking Court may in its discretion proceed with the sale of the mortgaged or pledged or hypothecated property if in its opinion the interest of justice so requires:(Underline is mine) Subsection (2) of section 12, C.P.C. provided special remedy to get an order, judgment and decree, set aside by an aggrieved person whether he is party to proceedings or not, if the same is obtained by fraud, misrepresentation or for want of jurisdiction, whereas under Order XXI, rule 58, C.P.C. Court has to investigate the claim and objection to the attachment of property on the ground that such property is not liable to such attachment. Section 19(7) of Ordinance, 2001 provided that notwithstanding anything contained in C.P.C., Banking Court, has to follow summary procedure for the purpose of investigation of claims and objections in respect of attachment or sale of any property whether or not mortgaged, pledged or hypothecated. It is further provided by the proviso. to subsection (7) of section 19 of Ordinance, 2001 that:‑‑ "Provided that the financial institution gives a written undertaking that in the event the objections are found to be valid, or are sustained, it shall in addition to compensating the aggrieved party by the payment of such amount as may be adjudged by the Banking Court also pay a penalty up to twenty per cent. of the sale proceeds and such amounts shall be recoverable from the financial institution in the same manner as in execution of decrees passed hereunder". If we read all these provisions together, it appears that each of them has provided separate remedy. The remedy under subsection (2) of section 12, C.P.C. is attracted when an order, judgment or decree has been obtained by fraud and misrepresentation and any person aggrieved by said order, judgment and decree can invoke the same. Order XXI, rule 58, C.P.C. provided remedy to challenge the attachment order on the ground that property is not liable to be attached under the decree. Whereas under subsection (7) of section 9 of Ordinance, 2001, it is for the Banking Court to investigate claims and objections in respect of attachment or sale of any property whether or not mortgaged and all questions relating to the right, title or interest of person whether or not party to decree in the attached property has to be adjudicated upon and determined by the Banking Court executing the decree and not by a separate Court. Now reverting to the case in hand, it appears that in the judgment and decree, passed by the Court, the property upon which applicant is claiming interest, has not been mentioned in decree: though situated at the rear side of Plot No.33/4, Block 7 and 8, Banglore Coop. Housing Society, Karachi. In my view to meet the ends of justice let this application be treated as an application under section 19(7) of Financial Institutions (Recovery of Finances) Ordinance, 2001 read with section 21 rules 58 and 90, C. P. C. read with section 12(2), C.P.C. and be placed in the file of Execution No.102 of 2000, filed by the plaintiff/DH Bank. Office of Execution Branch is directed to issue notice to DH, JD and to parties who are claiming interest in the property, if any, and fix the application for hearing on 15‑12‑2003. H.B.T./A‑29/K Order accordingly.