2014 PLP 998 (CLD)

The appellants have filed an appeal under section 22 of Financial Institutions (Recovery of Finances) XLVI of 2001 wherein he has challenged the order dated 15-9-2012 passed by the Judge Banking Court-I, Sukkur. The order dated 15-9-2012 reads as under; "Advocate for the parties are present. Heard arguments. Mr. Shamim Ahmed learned Counsel for J.D has mainly argued that great injustice is being caused to the J.D. as he had paid the entire amount and the first suit was dismissed whereafter the D.H. Bank has preferred appeal and as a result thereof suit proceeded afresh which resulted ex parte judgment whereas this Ex. Application is the result of that ex parte judgment he has further contended that the executing Court has to make investigation to see for the purpose of verification as to whether the decree was correctly passed or otherwise. Mr. Nusrat Hussain Memon learned Counsel for D.H. Bank has opposed the application and has contended that this Court in position of executing Court cannot sit over the judgment passed by Banking Court-V Karachi. Mr. Shamim has prayed for time for producing law on the point. Put off to 12-12-2012 parties are also further directed to produce the order of honourable High Court whereby the suit of D.H was dismissed in the first instant and case was remanded". From the perusal of this order, it appears that it is interlocutory order in all respects. The learned Counsel for the appellants contends that the impugned order has attained finality vide order dated 21-11-2012 (copy whereof has been placed on record) wherein the application under section 12(2), C.P.C. and section 12 of Financial Institutions (Recovery of Finances) Ordinance, 2001 was dismissed with following observations; "With all this, execution application was received by way of transfer under Order XXI, Rule 6, C.P.C. with certificate of non-satisfaction of decree under section 39(1), C.P.C., as such the position of this Court is that of transferee Court, therefore, this Court has no jurisdiction to sit over the judgment announced by Banking Court-IV Karachi. In case the Judgment debtor/defendant/applicant was aggrieved of the judgment dated 10-5-2011, he should have filed appeal before Appellate Court and not before this Court with a prayer to set aside the judgment, which I am afraid, is not within the jurisdiction/powers of this Court. Accordingly, application in hand stands dismissed". On 27-2-2013 the learned Counsel for the appellants was put on notice to satisfy this Court on the point of jurisdiction as admittedly appeal has been preferred against the judgment and decree passed by Banking Court-IV Karachi. The learned Counsel for the appellants in reply to this query has placed on the cases reported in PLD 1987 Lah. 537, 1986 MLD 735, PLD 1975 Quetta 29 and 1994 CLC 1112 and contends that executing Court has power to vary, alter and amend the decree, therefore, there was no need to file appeal at Karachi, and this order could be impugned before this Court. We have given careful consideration to the arguments of learned Counsel for the appellants and case-law relied upon by the learned Counsel for the appellants. There is no cavil to the proposition laid down in the case-law relied upon by the learned Counsel for the appellants but it has been held therein that the executing Court for the purpose of execution of decree can assume all powers of the decretal court but it does not mean that the said Court can add, alter and nullify the very decree. The question as to whether a decree has been obtained by fraud is not a question arising out of the execution, discharge of satisfaction of a decree, as it affects the very validity of the decree. It is also settled law that executing Court cannot go behind the decree. Moreover, an executing Court however, can determine an objection with regard to the executability of the decree and takes it for granted that a valid decree exists. Therefore, in the above circumstances the judgment and decree passed by the Banking Court-IV Karachi could only be assailed before the Court/Bench having appellate jurisdiction and or as it is case of fraud etc. then before the trial Court. In view of above, this Bench has got no appellate jurisdiction in a judgment and decree passed by Banking Court at Karachi. Therefore, the appellants are at liberty to seek remedy before competent Court of law having appellate jurisdiction, if so advised. KMZ/M-74/Sindh Appeal dismissed.