2002 PLP 1 (CLD)

MIAN MUHAMMAD AJMAL, J.

By this common judgment we propose to dispose of Civil Appeals Nos.897 and 898 of 1999 as they have arisen out of common judgment dated 10-9-1998 of the Peshawar High Court, Peshawar in Civil Revisions Nos.207 and 208 of 1998 alongwith C.Ms. Nos.389 and 390 of 1998 and involve identical questions of law and facts.

2. Brief facts are that Pakistan Industrial Credit and Investment Corporation (P.I.C.I.C.), the appellant obtained a decree for a sum of Rs.22,38,87,876 (principal amount plus interest etc.) from the High Court acting as Banking Court on 13-10-1993 against Messrs Adamjee Paper and Board Mills Limited, Nowshera, Head Office Adamjee House, I.I. Chundrigar Road, Karachi, respondent No.3. In execution of the aforesaid decree Mill's property was sold through Court auction, whereafter 25 petitions were filed. The learned Banking Court vide its order dated 30-3-1998 accepted the petition of Aman Khan, labour leader on the ground that he had obtained a decree for Rs.1,39,18,000 from the Authority under the Payment of Wages Act and thus he being a decree-holder was entitled to ratable distribution of the assets of the judgment-debtor. The petition filed by the Customs Department was also accepted on the ground that it being a Government Department, its rights were protected under subsection (3) of section 73 of the Code of Civil Procedure. Thor remaining 23 petitions were dismissed.

3. Feeling aggrieved, P.I.C.I.C. the appellant, filed Civil Revisions Nos.207 and 208 of 1998 alongwith C.Ms. Nos.389 and 390 of 1998 praying that if the Civil Revisions were not found to be competent then the same be treated as Intra-Court Appeals. Both the Civil Revisions were dismissed in limine by the learned Division Bench of the Peshawar High Court vide its common judgment, dated 10-9-1998 holding the same not to be maintainable. The appellants then filed Civil Petitions for Leave to Appeal Nos. 1318 and 1319 of 1998, wherein leave was granted by this Court on 15-6-1999 as under:-- "Mr. Raja Muhammad Akram, the learned counsel for the petitioner, in seeking leave to appeal contended before us that the order passed by the executing Court being final in nature, was appealable under section 21 of the Banking Companies (Recovery of Loans) Ordinance, 1979. It is also contended by the learned counsel that if the interpretation adopted, by the learned Division Bench of the Peshawar High Court is accepted then any order depriving a decree-holder of the fruits of the decree, howsoever unreasonable or arbitrary it may be, could not be rectified or redressed against as no proceedings against such an order would be available under any law. The contentions raised by the learned counsel for the petitioner, raise a question of general importance and we, accordingly, grant leave to appeal to consider the same."

4. Learned counsel for the appellant contended that the order passed by the learned Single Judge exercising his powers under the Banking Companies (Recovery of Loans, Advances,, Credits and Finances) Act, 1997 (hereinafter to be called the Act) as Banking Court, was appealable under section 21 of the Act before the learned Division Bench and the Banking Court erred in construing sections 2(b)(11) and 5 read with section 21 of the Act. He submitted that if the learned Division Bench was of the opinion that revision petitions filed by the appellant were not maintainable, the same could be converted and treated as appeals under section 21 of the Act and disposed of on merits. He farther argued that the order dated 30-3-1998 passed by learned Single Judge as Banking Court was an order of the nature as contemplated under section 18(6) of the Act as it was passed after entertaining, investigating and adjudicating the claims of the objectors, as such appeals, review or revisions under section 21(5) of the Act were maintainable against the same. He urged that objection petitions of the respondents for ratable distribution under section 73, C.P.C. were not maintainable before the Executing Court in Banking jurisdiction, for, firstly, the same did not fall in any of the categories of objections as given in clause (a) of subsection (6) of section 18 of the Act and secondly, the objectors were not decree-holders within the meaning of section 2(3), C.P.C., therefore, they could not invoke provisions of section 73, C.P.C., as such, objection petitions of the respondents were also liable to dismissal.

5. While supporting the impugned judgment, the learned Deputy Attorney-General argued that the learned Division Bench of Peshawar High Court has correctly interpreted the law by holding that revision petitions were not maintainable and even if the same were treated as appeals, they would have been incompetent as the nature of impugned orders did not fall within the ambit of section 21 of the Act.

6. Learned counsel for the respondents in both the appeals also supported the impugned order contending that the impugned order of the Banking Court was neither appealable nor revisable.

7. We have heard the learned counsel for the parties and have gone through the record of the case. In order to appreciate the contentions of the parties, it would be necessary to go through the relevant provisions of the law on the subject. Section 2(b)(i) and (ii) of the Act defines the Banking Court as under:-- "

2. Definitions.

In this Act, unless there is anything repugnant in the subject or context

(a) .......... (b) 'Banking Court' means-- (i) in respect of a case in which the outstanding amount of claim based on a loan or finance does not exceed thirty million rupees or the trial of offences under this Act, the Court established under section 4; and (ii) in respect of any other case, the High Court;" The above definition of the 'Banking Court' manifests that such Court is constituted on the basis of pecuniary limits, where the outstanding amount of claim based on loan or finance is not more than rupees thirty million, the Banking Court established by the Federal Government under section 4 would have the jurisdiction and where the amount involved is more than rupees thirty million in those cases the Banking Court would be the High Court. The, High Court has been defined in section 5 of the Act, which reads as under:-- "

5. High Court.

The Chief Justice of each High Court shall, for securing the expeditious disposal of cases under this Act, nominate one or more Judges to exercise jurisdiction in respect of cases hereunder: Provided that the Federal Government may request the Chief Justice to ensure the expeditious disposal of cases by assigning no other work to such Judge." It is clear from the above section that when a Judge of the High Court is nominated by the Chief Justice for expeditious disposal of the cases under the Act, he acts as Banking Court and any order passed by him as such Court H would be in the capacity of a Banking Court and not the High Court in its ordinary jurisdiction. Reference may be made to the following case-law. In Pakistan Fisheries Limited v. United Bank Limited PLD 1993 SC 109, this Court observed as under:-- "The jurisdiction conferred on the High Court under the Ordinance is special jurisdiction and while exercising such jurisdiction the High Court bears the fictional character of a Special Court as defined in the Ordinance. It is a fundamental rule, that where an enactment creates a new jurisdiction, prescribes the manner in which that jurisdiction is to be exercised and further specifies the remedy, such remedy is exclusive and the parry aggrieved of an order made in exercise of that jurisdiction must seek only such remedy and not others. The jurisdiction conferred by the Ordinance on the forums created thereunder, seems to have been jealously guarded by the Legislature. By virtue of subsection (4) of section 6 in all matters to which under the Ordinance, the jurisdiction of the Special Court extends, no Court other than the Special Court can have jurisdiction to deal therewith. Furthermore, section 11 attaches finality to the orders and categorically lays down that subject to provision for appeal under section 12, no Court or other authority shall call in question or permit to be called in question any order or judgment of the Special Court. Evidently, the Legislature in its anxiety to protect the orders of Special Court, has gone to the extent of ordaining that no Authority other than the appellate forum specified in section 12, shall even allow to throw a challenge to the validity of such order. Combined effect of these provisions is that judgment and orders passed by a Special Court cannot be assailed before any forum except in accordance with the provisions of section 12." In Messrs Tank Steel and Re-Rolling Mills (Pvt.) Limited, Dera Ismail Khan and others v. Federation of Pakistan PLD 1996 SC 77, it was held that no Court or other authority subject to provision of appeal under section 9 of the Banking Tribunals Ordinance, 1984 was competent to call in question or could be permitted to call in question any proceeding, order, judgment or decree of Banking Tribunal or legality or propriety of anything done or intended to be done by Banking Tribunal thereunder and that the Constitutional petition against decree of Banking Tribunal was not competent. In Messrs Tri-Star Polyster Limited and another v. Citibank 2001 SCMR 410, this Court has held that the High Court acting as Banking Court under section 2(f) of the Act was similar to a Special Court and any such order passed by it was in its capacity as a Banking Court and not the High Court in its ordinary jurisdiction.

8. It may be mentioned here that when the petitions of the respondents were accepted by the learned Judge as Banking Court, the Banking Companies (Recovery of Loans, Advances, ;Credits and Finances) Act, 1997 was in force and it was to be seen whether the petitions qualified the kind of the objections enumerated in section 18(6) of the Act. Aman Khan respondent in Appeal No. 898 of 1999 filed a petition under section 114 read with Order 42, C.P.C. for the review of the judgment and decree dated 13-10-1993 in execution proceedings and sought modification of the judgment and decree to the extent that the prohibition imposed on the Deputy Commissioner from selling the movable /immovable property be vacated. The learned Judge as Banking Court disposed of the said petition treating it as an application under section 73, C.P.C. The other petition is not available on the paper book, therefore, it cannot, be said under which provision of law it was filed. It may be appropriate to reproduce section 18(6)(a) of the Act which reads as under:-- "18(1) ......... (2) ........... (3) ........... (4) ........... (5) ........... (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; (b) ......... (c) ......... " A bare reading of the aforesaid subsection alongwith its clause (a) would show that the objections in respect of attachment of any property whether mortgaged, pledged or not, could be filed under the aforesaid section and not under the C.P.C. as the provisions of the C.P.C. have been excluded by the non obstante clause of the said subsection. The learned executing Court did not examine this aspect of the case and disposed of the application under the C.P.C., which was apparently incompetent. In the peculiar circumstances, the objection petitions are deemed to have been filed under section 18(6) of the Act, hence order passed thereon would be appealable under subsection (5) of section 18 of the Act.

9. As far the question of ratable distribution of the assets of the judgment-debtor is concerned, it would-also be hit by section 18(6) of the Act. Moreover for ratable distribution, it is necessary that the assets must be held I by the Court, there should be more than one person who have money decrees in their favour against the same judgment-debtor and application should be made before the receipt of assets by the executing Court. The applications were not looked into from these angles to ascertain as to whether the same qualified the aforesaid requirements of section 73, C.P.C. respondents Nos. 1 and 2 in both the appeals are not decree-holders as no decree has been passed by any Court in their favour. According to the learned counsel for respondent No.l in Civil Appeal No.898 of 1999, a direction/order has been issued by the Authority under the Payment of Wages Act, 1936 for the recovery of wages but said direction/order cannot be said to be a decree within the meaning of section 2(2), C.P.C. and as such, his application could not be treated to beg an application under section 73, C.P.C. He could only resort to execute the order of the Authority in the manner prescribed in the Payment of Wages Act itself.

10. In view of the above, we accept these appeals, set aside the impugned order and remand the cases to the High Court for deciding the appeals on merits in view of the above observations. Q.M.H./M.A.K./P-41/S Appeals allowed.