2004 PLP 284 (CLD)

Rashideen Nawaz Kasuri for Petitioner. Wasim Majeed Malik for Respondent. Date of hearing: 30th July, 2003. Habib Bank Limited, the petitioner, through the filing of the present petition, has called in question order dated 2‑6‑2003, whereby the learned Banking Court, stayed the execution proceedings.

2. Briefly stated the facts of the case are, that during the execution proceedings, when the auction schedule of mortgaged property, bearing No.64‑T, Gulberg III, Lahore, was accepted by the learned Executing Court, respondents Nos. 1 to 3/judgment debtors, while relying upon certain letters from' State Bank of Pakistan, filed an application under section 15 of the Ordinance No.XLVI of 2001 seeking stay of execution proceedings. The said application was opposed by the petitioner, however, the learned Banking Court stayed the auction proceedings vide impugned order, dated 2‑6‑2003, which has prompted the petitioner‑Bank to assail the same through filing of the present Constitutional petition.

3. When the learned counsel for the respondents was confronted with the provisions of section 15(12) of Ordinance No.XLVI of 2001 and was asked to defend the impugned order, the learned counsel for the respondents has not much to say except to submit that as the matter regarding the settlement of liabilities of the judgment‑debtors, under Circular No.29, is pending before the State Bank of Pakistan, therefore, the auction proceedings may be stayed till the decision by the State Bank of Pakistan.

4. Undeniably, the judgment‑debtors filed an application fort stay of execution proceedings, when the learned Executing Court had already accepted the auction schedule qua the mortgaged property and the proposed sale was under way. Section 15(12) of the Ordinance, 2001 provides that neither the Banking Court, nor the High Court shall grant an injunction restraining the sale or proposed sale of mortgaged property. Admittedly, the requirements of section 15(12)(a)(b)(c) are not attracted in the present case. Placing the impugned order in juxtaposition with the aforenoted provision of law, I find that the impugned order has been passed in complete violation and derogation to the aforenoted provision of law. It appears from the tenor of the order that the learned Banking Court, while passing the impugned order, was completely oblivious of the aforenoted provisions of law, which should have been in. the knowledge of the learned Executing Court. To my mind, upon filing this application, the learned Executing Court, in view of the aforestated provisions of law, ought to have refused to grant the injunction restraining the proposed sale of the mortgaged property. The order passed by the learned Banking Court is without jurisdiction and I have no hesitation in setting it aside.

5. Upshot of the above discussion is that the present petition is allowed and the impugned order dated 2‑6‑2003 is declared to be illegal, without jurisdiction and having no legal effect, with no order as to costs. H.B.T./H‑176/L Petition allowed.