2005 PLP 1517 (CLD)

MIAN HAMID FAROOQ, J.

Appellant's instant first appeal proceeds against order dated 6-4-2004, whereby the learned Judge Banking Court dismissed their application for the dismissal of the execution petition.

2. Facts of the case are that the respondent-Corporation filed the suit for the recovery of Rs.2,41,272 against the appellants, before the then Banking Tribunal, Karachi, which passed a consent decree vide judgment and decree dated 4-12-1996, in the following terms:-- "The parties moved to agreed to compromise under Order XXIII, rule 3, C.P.C. on the following terms and conditions: -- (i) That on behalf of all the defendants, the defendant No.2 hereinabove in the above suit admits the contents of the plaint without any reservation. (ii) That the defendants have agreed to pay the amount of Rs.2,16,000 being six rentals through Cheque No.08262555 dated 10th December, 1996 draw on M.C.B., Gujranwala as per lease agreement which are due and outstanding. Furthermore the balance two rentals would be paid by the defendants on or before the 15th day of January, 1997. (iii) The defendants further undertake to pay regularly as per agreed schedule in the lease agreement without any delay or default till all lease rentals are paid by the defendants. Upon clearance of agreed rentals, the plaintiff will discharge the defendants from the liability as per Lease Agreement No.ALC/0086/95 and will execute all the documents to the satisfaction of defendants absolving the defendants from any liability. (iv) That in case of default in compliance of above terms of compromise, this Honourable Court or Transferee Court will issue a writ of possession against the defendants without any notice, on presentation of application by the plaintiff against the defendants." It appears that the appellants committed default in fulfilling the terms of the consent decree, which resulted in instituting the execution petition by the respondent corporation. During the execution process, the leased machinery was taken over from the appellants and delivered to the respondent-Corporation and thereupon the respondent corporation stated before the learned Executing Court that a sum of Rs.5,24,000 is still payable by the appellants. The decree could not be executed in its entirety at Karachi and thus same was transferred to the Banking Court at Gujranwala. On 29-5-2003, the appellants filed the objection petition under sections 47, 151, C.P.C. read with section 19 of Ordinance XLVI of 2001 for the dismissal of the execution petition, pleading therein that the decree dated 14-12-1996, passed by the Banking Tribunal, Karachi, is without jurisdiction, hence the same cannot be executed; and if it is held that the decree is with jurisdiction in that case the decree stands satisfied in terms of the compromise. The respondent-Corporation contested the said application and ultimately the learned Banking Court, Gujranwala, dismissed the objection petition, vide impugned order dated 6-4-2004, hence the present appeal.

2. Learned counsel for the appellants has contended that the consent decree passed by the learned Banking Tribunal, Karachi, is without jurisdiction, as the respondent-Corporation does not fall within the definition of "Banking Company" as defined in section 2(a) of Banking Tribunals Ordinance, 1984, (since repealed). He has further submitted that the learned Banking Court failed to give any findings, qua the plea of the appellants, regarding the satisfaction of the decree according to the terms of the compromise. Learned counsel for the respondent while refuting the said contentions and while placing on record certain documents, which according to him, were before the learned Banking Court at the time of passing the order, states that in addition to the findings of the learned Banking Court, the respondent-Corporation is a "Banking Company" in view of section 2(a)(iii) of the Banking Tribunals Ordinance, 1984, as it is specified in the schedule.

3. Admittedly, the Banking Tribunal, Karachi, with the concurrence of both the parties, passed the consent decree as far back as, on 4-12-1996, against which none of the parties filed any appeal. Thereafter and even during the pendency of the execution petition for approximately 6 years, the appellants did not agitate that the decree is in executable on account of lack of jurisdiction. It was for the first time on 29-5-2003, that the appellants raised the objection that the execution petition be dismissed for the reason that the decree under execution was passed without jurisdiction. Undoubtedly, the decree under execution has attained finality inasmuch as even according to the own showings of the appellants the same has partially been executed and implemented, as the leased machinery was sold by the decree-holder under the supervision of the Executing Court. The appellants acquiesced over the passing of the decree for a considerable delay of seven years and after protracted silence for long period filed the objection petition. The principle of acquiescence would operate harshly against the appellants in addition to the applicability of principle of estoppel, as the appellants after having consented to the passing of the consent decree, in the terms noted above, allowed it to be partially executed. Having raised no objection despite joining the execution, the appellants cannot be allowed to turn around at this stage and say that the decree is not executable. Additionally the learned Executing Court has rightly relied upon the judgments reported as Ghulam Muhammad v. Agricultural Development Bank of Pakistan through Manager 2003 CLD A 267; Syed Farasat Ali Shah v. Allied Bank of Pakistan Ltd. and others 2003 CLD 952 and Tariq Shahbaz Chaudhry and 5 others v. Bank of Punjab through Attorney and 4 others 2004 CLD 207 to hold that the Executing Court cannot go behind the decree sought to be executed.

4. To our mind the two pleas taken by the appellants, that the decree under execution suffer from lack of jurisdiction and that they have satisfied the decree in terms of the compromise, appears to be contradictory. The said pleas cannot be said to be alternative pleas. It is settled law that a litigant cannot be allowed to take contradictory pleas and is estopped to play hot and cold in the same breath. In the above perspective as regards the first plea of the learned counsel the same is devoid of any substance and we, in view of the above findings, in addition to the reasons given by the learned Banking Court, are inclined to maintain the said portion of the order.

5. Coming to the next contention of the learned counsel. We have re-examined the impugned order and find that the learned counsel is right in submitting that although the appellants urged the second contention before the learned Banking Court, but no findings qua the said controversy are forthcoming from the impugned order. Suffice it to say that the learned Banking Court has erroneously brushed aside the said contention of the learned counsel by merely observing that the same could be raised before the Banking Tribunal, which passed the decree. Admittedly, the decree was transferred to the Banking Court and it is under legal obligation to execute the decree and also to decide all the related questions and objections raised by the parties having interest therein. As the impugned order is devoid of reasons and findings on this aspect of the case, therefore, we are inclined to partly accept the appeal and to remand the case to the learned Banking Court for fresh decision of the matter only on the question as to whether the appellants have, in fact, satisfied the decree in terms of the said compromise decree dated 4-12-1996.

6. In view of the foregoing reasons and conclusions, the present appeal stands decided in the following terms:- (i) The appeal is partly allowed and the conclusions of the learned Banking Court that "the judgment and decree passed by the Banking Tribunal, Karachi, is not nullity in the eyes of law and this Court is fully empowered to- decide the matter of leasing company" are maintained. (ii) As regards the findings regarding the second contention raised by the learned counsel, as noted above, are set aside and to that extent the appellant's objection petition shall be deemed to be pending before the learned Banking Court. (iii) The learned Banking Court shall decide the question as to whether the appellants have satisfied the decree in terms of the compromise decree dated 4-12-1996, or not, as agitated by the learned counsel, after hearing the parties and, of course, in accordance with law. (iv) No order as to costs. M.H./N-44/L Order accordingly.