2002 PLP 362 (CLD)

Muhammad Anwar Bhaar for Respondents. Date of hearing: 25th September, 2001. MUHAMMAD SAIR ALI, J.‑‑‑National Bank of Pakistan i.e. respondent No. 1. on 8‑9‑1997, filed a suit for recovery of Rs. 19,99,983 with costs and liquidated damages against the respondents Nos. 2 and 3 and the appellant. On 26‑3‑1988, the learned Banking Tribunal, Lahore passed a decree against the appellant, respondents Nos. 2 and 3 jointly and severally. The present appellant has guarantor/judgment‑debtor filed appeal in forma pauperis bearing No. 154 of 1988. Since the decretal amount was not deposited under proviso to section 9 of the Banking Tribunals Ordinance, 1984, the said appeal was not entertained and is yet to be heard. In the meanwhile, the Bank filed an execution petition whereupon, sale of mortgaged property was ordered by the learned Banking Tribunal. The appellant filed objection petition under section 47 read with Order XXI, Rule 66, C.P.C. on 13‑9‑1988. This petition was dismissed by the learned Tribunal by order dated 9‑10‑1988 which has been assailed through the present F.A.O.

2. Learned counsel for the appellants has contended that the decree passed by the learned Tribunal was a simple money decree and the recovery through sale of the property could not be ordered and that even otherwise under Order XXXIV of C.P.C., the Tribunal was bound to initially pass a preliminary decree and then a final decree under Order XXXIV, Rule 5, C.P.C. In view of the above, the decree dated 25‑3‑1988 was in-executable and could not be acted upon to order sale of the property in execution thereof.

3. Learned counsel for the appellant also contended that it was mandatory to direct a notice under Order XXI, Rule 66(2), C.P.C. prior to the sale of mortgage property through auction and that such a notice had not been issued.

4. The respondent‑Bank claimed the decree to have been properly passed as a mortgage decree and also contended that the Banking Tribunal in terms of section 6(8) of Banking Tribunals Ordinance, 1984 was not bound to adhere to procedure laid down in Order XXXIV, C.P.C. to initially pass a preliminary decree and then a final decree.

5. We have examined the record and points urged by the learned counsel for the parties. Decree dated 26‑3‑1988 was passed against the appellants for recovery of Rs. 1,99,983 alongwith costs. The learned Banking Tribunal directed the sale of the mortgaged property in case of non‑payment of the decretal amount by the judgment‑debtor. The decree‑holder

Bank filed execution petition to which objections were filed by the appellants on the ground that notice required under Order XXI, Rule 66, C.P.C. had not been served prior to ordering sale of the mortgaged property through auction. No other ground was raised ‑in objection petition by the appellant/objector. Perusal of the impugned order shows that the Tribunal through the impugned order directed issuance of notice under Order XXI Sub‑Rule 66 in Appendix 'E'. The objection of the appellant was duly met whether, there is no substance in appellants' claim that such a notice had not been ordered by the learned Tribunal.

6. Similarly, appellants' submission for non‑payment adherence to Order XXXIV of C.P.C. by Banking Tribunal in not passing a preliminary decree, has no substance. Banking Tribunal Ordinance (Ordinance No. XVIII of 1994) was promulgated to provide a mechanism of recovery of finance provided by Banking Companies under a system of financing not based upon interest. It provides a special procedure for recovery suits as also a mechanism for execution of the decree. Subsection (8) of section 6 read as under:‑‑‑ "(8) Where the claim filed before the Banking Tribunal is for the enforcement of a mortgage of immovable property, 'decree' shall mean final decree for foreclosure, sale or redemption, as the case may be, as provided in Order XXXIV of the First Schedule to the Code of Civil Procedure, 1908 (V of 1908)."

7. A bare perusal of the above‑quoted section 6(8) of the Banking Tribunals Ordinance, 1984 reveals that suits filed before the Banking Tribunal, if a Banking Company claims enforcement of mortgage of immovable property a 'decree' passed by the Tribunal was a 'final decree' for foreclosure, sale or redemption as per provisions of Order XXXIV of C.P.C. As such, through the above‑quoted special provision in the Ordinance of 1984, law giver in fact did away with the lengthy and technical and multi‑tier procedure of enforcement of mortgage by initially issuing preliminary decrees and then on application of the decree‑holder a final decree which in itself was a time consuming, arduous and a long procedure. It is, thus, obvious that the learned Banking Tribunal passed the impugned decree dated 26‑3‑1988 for recovery through sale of mortgaged property in terms of section 6(8) of the Banking Tribunals Ordinance, 1984 and was not required to pass a preliminary decree as provided in Order XXXIV of the C.P.C. The decree dated 26‑3‑1988 was a final decree, wherefore, the learned Tribunal was within its jurisdiction to order execution of the same through sale of the mortgaged property.

8. In view thereof, this appeal has no merit and is accordingly dismissed with no order, as to costs.