_P L D 1998 Karachi 354 (PLP)

IKRAM AHMAD ANSARI, J.

This First Appeal is directed against the order dated 25-7-1997 passed by the learned Judge. Banking Court in New Execution Application No.245 of 1996 thereby dismissing appellant's application under Order 21, Rule 58 read with section 12(8) of Banking Companies Ordinance XXV of 1997. The brief facts of the case of the appellant are that on 18-8-1981, respondent No.l approached the appellant for seeking pre-shipment Export Finance Facility. Accordingly, such facility was granted by the appellant on 18-12-1982 subject to mortgage by way of deposit of title deeds of the properties of respondent No.l, being Mill/Factory situated on plot of. Land bearing No.A/7. Survey Nos.192, 193, 200 and 214 of Deh Narija, Taluqa, Hyderabad, Sindh, together with constructions structures, Offices. Quarters, Godowns etc., including plant. equipments and machineries installed/lying therein. However, after availing such facility the respondent No.l and/or its Directors failed to repay the outstanding dues of the appellant which, on 11-8-1988 stood at Rs.2,83,57,

324. Consequently the appellant filed against respondent No.l and its Directors, a suit in the High Court of Sindh, Karachi, being Suit No.48 of 1989-United Bank Limited plaintiff v. M/s. Muhammadi Textile Mills and 8 others under the Banking Companies (Recovery of Loans) Ordinance XIX of 1979 under Orders 34 and 37, C.P.C. for the recovery of Rs.2,83,57,

324. Said suit of appellant had been decreed vide judgment and decree dated 15-12-1992 passed in the matter. That before the appellant could achieve satisfaction of their said decree it came to know that National Bank of Pakistan, respondent No.12, had also subsequently advanced some loan to the respondent No. l and had also filed against it Suit No.56 of 1987 and obtained a money decree against the respondent No. l and its Directors. The appellant also came. to know that the respondent No. 12 instituted Execution Application No.245 of 1996 against the respondent No. l and its Directors, therefore, the appellant as claimant/objector instituted before the learned Trial Court, an application under Order 21, Rules 58 and 62, section 151, C.P.C. read with section 12(8)(a) of Banking Companies (Recovery of Loan, Advances, Credits and Finances) Ordinance, 1997 (hereinafter referred to as Ordinance XXV of 1997) praying that the claim of the claimant in the subject-matter of the Execution Application of respondent No. 12 be investigated and till conclusion of the investigation as an interim measure attachment of the property was sought resulting into postponement of sale of the properties mortgaged. - Such application of applicant was resisted by the respondent No. 12, however, the learned Trial Court vide impugned over dated 25-7-1997 rejected the said application of appellant which has necessitated the filing of this appeal. Mr. Anwar Zaheer Jamali, the learned Advocate for the appellant has argued before us that the learned Trial Court has erred in dismissing appellant s said application by ignoring the fact that the attached properties were in fact already mortgaged with the appellant, who had obtained a decree dated 15-12-1992 against respondent No. l and its Directors, in respect of the mortgaged property. As such the first charge over the said mortgaged property being of the appellant and unless the claim of the appellant is investigated and satisfied the aforesaid claim of respondent No. 12 over the said mortgaged attached property was not tenable. That according to the case set up by the respondent No. 12 it seems that it had granted to respondent No. 1, loan against pledge on stock; whereas the appellant was a prior mortgagee of the immovable property including buildings, plants, equipments and machineries etc., and as such has claim in the matter which stood duly supported by the judgment and preliminary decree dated 15-12-1992 against the judgment-debtor. the respondent No. l and its Directors. Learned Advocate for the appellant has further argued before us that the learned Trial Court has erred in dismissing appellant's application by referring to Order 21, Rule 58, C.P.C. only and has ignored the provisions of section 12(8)(a) of Banking Companies Ordinance XXV of 1997. The learned Advocate submitted that it is a well-settled and established principle of law that wrong quotation of the title of an application does not affect its merits and a Court hearing such application has to. look into the substance of the application rather than its title mentioning wrong provision of law. He submitted that from the impugned order. It is amply clear that the prayer of the appellant in its said application was to seek investigation of the claim of the claimant and till such investigation is concluded the sale of the property in the Execution Application was sought to be postponed and the attachment of property be continued. He has further submitted that clause (a) of subsection (8) of section 12 of Ordinance,. 1997 is Preconditioned with investigation of claim and objection in respect of attachment of any property to be completed within thirty days of filing of such objection as the case may be. For the purposes of ready reference the provisions of section 12(1)(8)(a) of Ordinance XXV of 1997 are reproduced hereunder: "

12. Execution of decree.--(1) The Banking Court shall, on the written or oral application of the decree-holder, forthwith order execution of the decree or order and, where the decree or order pertains to money, may direct that the amount covered by the 'decree or order, as the case may be, shall be recovered as arrears of land revenue in accordance with the provisions of the Code of Civil Procedure, 1908, or any other law for the time being in force or in such other manner as the Banking Court may deem fit ... .... ... ... ... ... ... .. ... ... .... ... .... ... ... ... (8) Notwithstanding anything contained in the Code of Civil Procedure 1908 (Act V of 1908), or any other law for the time being in force; (a) the investigations of claim and objections in respect of attachment of any property shall be completed within thirty days of filing of such claims or objections, as the case may be; and." It was further contended on behalf of the appellant that appellants aforesaid application seeking investigation of their claim in respect of the attached property and subject-matter of Execution .Application No.245 of 1996 was submitted in Court on 3-6-1997 when aforesaid Ordinance XXV of 1997 had already been repealed and stood succeeded by the Banking Companies (Recovery of Loan, Advances, Credits and Finances) Act XV of 1997 (hereinafter referred to as the Act XV of 1997), wherein the corresponding provision for execution before the Banking Court have been provided in section 18(6)(a) which for the purpose of ready reference is reproduced hereunder:- "

18. Execution of decree.--(1) The Banking Court shall, on the written application of the decree-holder, forthwith order execution of the decree or order at any time seven days after the passing of the decree or order and, where the decree or order pertains to money, may direct that the amount covered by the decree or order, as the case may be, shall be recovered in accordance with the provisions of the Code of Civil Procedure, 1908, or any other law for the time being in force or in such other manner as the Banking Court may deem fit. (6) Notwithstanding anything contained in the Code of Civil Procedure, 1908 (Act V of 1908). or any other law for the time being in force- (a) the investigation of claims and objections in respect of attachment or sale of any property. whether mortgaged, pledged or not, shall be completed within thirty days of filing such claims or objections." The learned Advocate for the appellant has argued that on 3-6-1997, when appellant had submitted their application before the learned Trial Court and on 25-9-1997 when the impugned order was passed Act XV of 1997 stood promulgated and held the field. As such the Trial Court ought to have granted appellant's application in terms of an order to investigate the claim of the appellant in respect of the attached property being the subject-matter of the said Execution Application No.245 of 1996. Mr. Pertab Rai, learned Advocate for National Bank of Pakistan, respondent No. 12 has argued that the appellant's said application was not maintainable as the properties being the subject-matter of litigation have already been ordered to be attached vide orders dated 4-3-1992 and 3-5-1992 passed by this Court. Hence it was contended that stopping the sale of the mortgaged property would amount to refusal to implement the aforesaid Court orders. It was further contended that some of the judgment-debtors, shown in the preliminary decree granted in favour of the appellant had already sold away their share in the respondent No. l Company to some of the judgment-debtor. It was argued by the learned Counsel of the respondents that the sale of the attached property will not cause any prejudice to the appellant as its claim of recovery of its decretal would be satisfied only if the attached properties are sold. The learned Advocate for respondent No. 12 in support of his argument has placed reliance on the reported case of Muslim Commercial Bank Limited v. Adamjee Paper Board Mills and others 1997 CLC 1045. We have gone through the cited judgment (1997 CLC 1045) and the record placed before us and find that the facts of this case and the case referred above are different. The above-referred judgment has been passed keeping in view the provisions of Banking Companies (Recovery of Loans) Ordinance XIX of 1997, which did not have any provision parallel to section 12(8)(x) of Ordinance XXV of 1997 and section 18(6)(a) of Act XV of 1997. It would be pertinent to mention here that though the above-referred case was decided on 13-3-1997, yet neither the provisions of repealed Ordinance of XXV of 1997 nor the provisions of Act XV of 1997 have been referred to in the case reported as 1997 CLC 1045. As such in the circumstances of the present appeal and keeping in view the provision of section 18(6)(a) of Act XV of 1997 we with respect would refrain to place reliance on the referred Judgment, 1997 CLC 1045. For the foregoing, we are of the considered view that the learned Trial Court instead of passing the impugned order dated 25-7-1997 should have taken steps to investigate the claim and objection of appellant in respect of the allotted properties, as is required to be done under the provisions of clause (a) of A subsection (6) of section 18 of Act, XV of 1997. We therefore set aside the impugned order dated 25-7-1997, allow this appeal and remand the case to the learned Trial Court with direction to investigate the claim of the appellant with regard to the attached properties within the time frame prescribed by law. We are conscious of the fact that the subject-matter of litigation in appeal is a very old matter and some of the attached properties might have and/or could deteriorate which could diminish the value. to the disadvantage of the parties before us. We would, therefore, direct the learned Trial Court to investigate the claims of the parties before us in respect of the properties in question. The same be sold by the Additional Registrar of this Court as per rules. Proceeds of sale are directed to be invested in the best Government Profitable Scheme. Disbursement of the proceeds would depend on the outcome of investigation already directed to be made by the Trial Court. Appeal allowed and case remanded to the learned Trial Court, consequently listed Civil Miscellaneous Application 236/1997 is also disposed of. A.A./U-26/K Case remanded.