2005 PLP 660 (CLD)

MIAN SAQIB NISAR, J.

Through this appeal, the order dated 23-10-2003, passed by the learned Banking Judge No.IV, Lahore, has been assailed, through which the application under Order XXI, rules 100 and 101, C.P.C. and another application under Order XXI, rule 90, C.P.C., has been kept pending but with the direction to the appellant, to seek his remedy before this Court, in its banking jurisdiction.

2. Briefly the facts of the case are that the appellant/Bank, filed a suit for recovery against respondent No.3 (judgment-debtor) and a decree dated 23-2-1998, was passed against it and in favour of the appellant. For seeking the execution of the decree, the appellant filed an Execution Application No.19-B of 1998, before this Court, according to law, but as per learned counsel, the same was withdrawn on (sic) with permission of this Court, to sell the property of the judgment-debtor through private negotiation.

3. Be that as it may, the Allied Bank/respondent No.1, also filed a suit against the same judgment-debtor and was able to obtain a decree from the Banking Court IV. In execution of this decree, some property of the judgment-debtor was put to auction and has been purchased by respondent No.2, sale has been confirmed in his favour on 14-5-2003; the possession of the project/property is stated to have been taken over by the said respondent, when the appellant moved the aforementioned applications, with the result as narrated above.

4. The sole ground on which the Banking Court refused to entertain and adjudicate upon the applications filed by the appellant was that this Court had issued an order of attachment on 23-2-1998 in the execution petition filed by the appellant while the order of the attachment of the property in question has been passed by the Banking Court on 25-3-2003 in the execution petition filed by respondent No.1 hence purportedly relying upon section 63 of C.P.C., the learned Banking Court assumed that jurisdiction vested with this Court to adjudicate upon the applications.

5. A bare perusal of section 63 of the C.P.C. makes it clear and obvious that the provision thereof applies where property, is under attachment in the execution of the decrees of more Courts than one. The purpose and intent of section 63 ibid has also been set out in a recent judgment of a Division Bench of this Court reported as Trust Modaraba through Trust Management Services, Lahore v. Trust Leasing Corporation Ltd. through Chief Executive and 4 others PLD 2005 Lahore 5, wherein it has been stated that, Thus, spirit and the purpose embodied in this section, is obvious and is objected to preclude and avoid the conflicting decisions over the divergent claims and the objections filed by various persons, qua the same property, which is under attachment of the different Courts.

6. It is clear and obvious from the above that the question of choice of forum would only arise if at the relevant time the property stood attached by two different Courts in execution of two separate decrees. In the instant case, it is a matter of record that on the date of the passing of the impugned order and filing of the applications by the appellant, the property was attached only by the Banking Court in the execution of one decree. The order of attachment passed by this Court was no longer in the field on withdrawal of the execution proceedings. Therefore, in the facts and circumstances of the case, the learned Banking Court could not abdicate its jurisdiction to adjudicate upon the applications filed by the appellant. This abvious legal position is not disputed by the counsel for respondent No.1.

7. In this view of the matter, this appeal is accepted, the impugned order is set aside and the case is remanded to the trial Court for adjudication of all the applications filed by the appellant on their own merits. Disposed of with no order as to cost. M.B.A./B-65/L Order accordingly.