2025 PLP 1340 (CLD)

ZAHEER-UD-DIN KAKAR, J.

Through the instant appeal, filed under Section 22 of the Financial Institutions (Recovery of Finances) Ordinance, 2001 (the Ordinance), the appellant/Judgment-debtor seeks to set aside the order dated 22.08.2023 (the impugned order) passed by the Judge, Banking Court Balochistan, Quetta, being the Executing Court, whereby he issued direction for auction of the mortgaged property of the appellant.

2. The facts relevant for disposal of this appeal are that the respondent No.1/Bank filed a suit for recovery of Rs.3,12,04,489/41 along with cost of fund against the appellant before the Banking Court Balochistan, Quetta. The appellant/defendant through his counsel, filed an application for leave to defend the suit, which was rejected being time barred. Subsequently, the suit was decreed along with cost of fund @ 5.22%per annum vide judgment and decree dated 16.10.2020. Feeling aggrieved, the appellant filed High Court Appeal No.(s) 3 of 2020 before this Court, which was dismissed vide judgment dated 17.08.2021. The appellant did not assail the judgment of this Court before the Supreme Court, thus, the same attained finality.

3. Arguments heard. Record perused.

4. The perusal of record reveals that undeniably the judgment and decree was passed by the Banking Court against the appellant on 16.10.2020, which was challenged by him through High Court appeal bearing No.03/2020, which was dismissed on 24.06.2021. Thereafter. Banking Court being the executing Court proceeded to execute judgment and decree passed by it.

5. Before dilating upon the facts of the instant appeal and analyzing the legality of the execution process undertaken by the Banking Court, it is deemed appropriate to take a quick glance on the purpose and object of the "Ordinance" and mode of execution provided there under. The Ordinance was promulgated with an aim to streamline and expedite financial disputes between a financial institution and its customer and separate independent forum of Banking Court was also established under the ordinance to achieve the goal of speedy decisions. A decision, howsoever, promptly pronounced by the Banking Court will remain dangling in the midst unless it is also executed in a timely manner. The Ordinance, being a special law to resolve the disputes concerning financial institutions and its customers, provides specific mechanism for execution of decree with, or in some instances, without the intervention of Banking Court. Section 19 of the ordinance provides the mechanism for execution of decree. The provision empowers the Court to adopt any mode for execution including the one provided under Code of Civil Procedure, 1908; any other mode of execution available under any other law for the time being in force or in any other manner the Banking Court consider appropriate. The purpose behind vesting such extensive and flexible authority in the Banking Court was to secure the purpose of the legislation i.e., resolution of financial disputes in swift and time efficient manner.

6. The Supreme Court of Pakistan while deciding the review petition in the case of Muhammad Attique v. Jamil Limited and others1 held as follows: "Suit on behalf of a customer or a financial institution in Banking Court, its proceedings and their culmination in a decree and its execution through attachment, auction and sale of property involve a long haul, therefore, the legislature introduced a mechanism, which enabled the financial institution to leap from one end to another without the intervention of the Court. It, thus, enacted Section 15 of the Ordinance. But where intervention of the Court is un-avoidable, the legislature while updating the erstwhile law enacted Section 19 of the Ordinance. Subsection (2) of section 19 nevertheless, provided that the decree of the Banking Court shall be executed in accordance with the provisions of the Code of Civil Procedure or any other law for the time being in force or in such manner as the Banking Court may, as the request of the decree-holder, consider appropriate including recovery as arrears of land revenue. It is, however, discretionary with the Court to adopt any of the modes mentioned above but once the Court opts to execute the decree in accordance with the provisions of the Code, it cannot depart therefrom." (Emphasis provided) Similarly, the Supreme Court in the case of Mst. Nadia Malik v. Messrs Makki Chemical Industries Pvt. Ltd. Through Chief Executive and others2, expounded the scope of section 19(2) of the Ordinance and observed that: "The aforesaid subsection stipulates three modes authorizing the banking court to execute its decree. The first mode empowers a banking court to execute a decree by applying the provisions of C.P.C. The second mode provides that a banking court can execute a decree in the manner provided under any other law for the time being in force and the third mode provides that at request of the decree-holder, a banking court may adopt any procedure for execution of decree which it deems appropriate".

7. In the instant case, the decree was passed on 16.10.2020 but perusal of reply of the Bank/respondent No.1 reveals that the appellant failed in depositing any sum of the decretal amount, to this date. In contrast, the executing Court repeatedly directed the appellant to deposit the decretal amount in installments, but it was all in vain. Ultimately, the executing Court ordered for auction of the mortgaged property of the appellant. During arguments learned counsel for respondent's Bank placed on record details of High Court Appeal which were filed by the appellant during execution proceedings. Perusal of the same reveals that during execution proceedings before the executing Court the appellant filed one CP and Five High Court Appeals including the present appeal (total six) before this Court, which were disposed of with certain directions to the executing Court. The conduct of the appellant also reflect his attempts to frustrate the entire execution proceedings, and any indulgence at present stage of the proceedings would amount to frustrate implementation of the decree, which otherwise has attained finality. It would be tantamount to interference in the already decided matter. Speaking generally, execution is the enforcement of a decree by a judicial process which enables the decree holder to realize the fruits of the decree and judgment passed by the competent Court in his favour.

8. A decree of the Court is a mere declaration of right unless through the process of execution such determination is transformed into actual realization. Without execution, a decree is an expression of recognition of right of relief, however, when the same gets executed through the process of law, it then culminates into attainment of dispensation of justice in actual and palpable terms. Perhaps that is why, when a decree is executed successfully, it is called satisfaction of decree.

9. For the foregoing discussion, the instant appeal bears no merits, therefore, the same stands dismissed. However, the executing Court to execute the decree in its true letter and spirit strictly in accordance with law. Parties are left to bear their own cost. Meanwhile, earlier interim order dated 13.09.2023 passed in C.M.A. No.(s) 699 of 2023 is hereby recalled. MH/8/Bal Appeal dismissed.