Syed FARASAT ALI SHAH vs ALLIED BANK OF PAKISTAN LTD. and others
This petition for leave to appeal arose from the dismissal of a writ petition by the Lahore High Court, which had challenged the execution of a decree passed by a Banking Tribunal. The petitioner contended that because a previous Full Bench judgment of the Lahore High Court had declared certain provisions of the Banking Tribunals Ordinance, 1984, unconstitutional, the decree passed against him by the Tribunal was rendered coram non judice and thus unenforceable. The Supreme Court observed that the petitioner had failed to file an appeal against the original decree passed in 1993. Furthermore, the Court noted that the petitioner's reliance on the Full Bench judgment was misplaced, as the Supreme Court had previously affirmed the validity of execution proceedings in similar circumstances in Soneri Bank Limited v. Raja Weaving Mills Limited. The Supreme Court held that since the petitioner did not challenge the original decree through the provided appellate mechanism, the respondent-Bank was entitled to proceed with execution. The petition was dismissed, affirming that the execution proceedings were legally sound.
- Can a judgment debtor challenge the execution of a decree on the grounds that the tribunal which passed it was later declared unconstitutional, if the debtor failed to file an appeal against the original decree?
- Does the declaration of certain provisions of the Banking Tribunals Ordinance, 1984, as unconstitutional by a High Court automatically render all prior decrees passed by such tribunals coram non judice?
- Are execution proceedings maintainable against a judgment debtor who failed to challenge the underlying decree through the appellate process provided by the governing statute?
- Banking Tribunals Ordinance, 1984
- Order XXI Rule 23-A, Code of Civil Procedure 1908
- Section 151, Code of Civil Procedure 1908
ORDER
1. ' TANVIR AHMED KHAN, J.---Leave to appeal is sought against the judgment dated 14-2-2002 of the Lahore High Court, Lahore, whereby Writ Petition No,12374 of 1999 filed by the petitioner was, dismissed.
2. ' Briefly stated facts of the case are that respondent No,1 filed a suit on 24-2-1988 before the Banking Tribunal constituted under the Banking Tribunals Ordinance, 1984 (since repealed), hereinafter referred to as the Tribunal, for the recovery of Rs,12,84,094.71 with liquidated damages at the rate of 20 per cent. This suit was decreed for a sum of Rs,10,06,786.81 by the learned Chairman of the Tribunal vide his judgment dated 10-11-1993. Claim for liquidated damages was disallowed.
3. The petitioner did not challenge the same through an appeal provided under the Ordinance.
4. Instead, Writ Petition No,1319 of 1994 was filed before the Lahore High Court, which was disposed of by a Full Bench through a consolidated judgment dated 21-7-1996 whereby certain provisions of the Ordinance were set at naught.
5. ' The respondent-Bank filed an Execution Petition and warrants of attachment of property had been issued. The petitioner filed an application under Order XXI, rule 23-A read with section 151, C.P.C. For dismissal of the execution petition filed by the respondent-Bank. The said application and objection petition were dismissed by the Executing Court vide order dated 15-6-1999. The petitioner filed Writ Petition No,12374 of 1999 before the Lahore High Court, Lahore, -which has been dismissed by a Full Bench vide order dated 10-2-2002. Hence, this petition for leave to appeal.
6. ' It is inter alia argued by the learned counsel that the petitioner's writ petition challenging the judgment of the learned Tribunal was disposed of alongwith many other cases by a Full Bench of the Lahore High Court, against which Civil Petition No,2000/L of 1996 was filed. Since the same according to the learned counsel was withdrawn, as such the judgment of the Full Bench dated 21- 7-1996 had attained finality. On this basis an argument has been advanced by the learned counsel that through the impugned order the 'subsequent Full Bench of the Lahore High Court cannot sit over the earlier judgment of the Full Bench whereunder all the decrees were set aside. In short, the learned counsel for the petitioner has argued that since the judgments and decrees passed by the Tribunal constituted under the Ordinance were set aside as its very constitution was declared un- constitutional. In such circumstances, the decree earlier passed by the Tribunal was rendered coram non judice. The execution proceedings in this view of the matter cannot proceed, it is argued by him.
7. ' We have considered the contentions raised by the learned counsel and have gone through all the documents appended with this petition. We have noticed that the decree in this case by the Tribunal constituted under the Ordinance was passed as far back as on 10-11-1993 after five years of institution of the suit for recovery. No appeal as provided under the Ordinance was filed by the petitioner. The petitioner's writ petition was disposed of alongwith many other writ petitions as reflected from the Full Bench judgment whereby certain provisions of the Ordinance were set aside.
8. The learned Full Bench of the Lahore High Court in respect of earlier decrees passed by the Banking Tribunal had held as under in paragraph 12 of its judgment:- "Another thing to be noticed in this behalf is that even in the application moved by the respondent for seeking stay of proceedings there was no averment that he had been ready and willing to have the dispute settled through arbitration. This aspect of the matter has been totally ignored from consideration by the trial Court which had committed an error of law by observing that as the plaintiff/appellant had not started arbitration proceedings he could not have filed suit straightaway and that the mere service of legal notice calling upon the respondent to agree to arbitration was not sufficient. As already indicated above in law it is for the party applying for stay of proceedings to satisfy the Court about its readiness and willingness to have the dispute decided through arbitration which the respondent miserably fails to do in the present case. It was the bounden duty of the respondent to have placed some material on the record to prove his readiness. In Srish Chandra Guha v. The Food Corporation of India AIR 1975 Calcutta 215 it was observed that at least an affidavit in support of this fact must be filed in order to satisfy this condition."
9. ' Further reference is made to the judgment of this Court in the case of Soneri Bank Limited through Mian Abdul Wajid, EVP and Muhammad Ashfaq Chishti, VP v. Raja Weaving Mills Limited and another (KLR 1997 Civil Cases 742) wherein the learned Judges of this Court approved the determination made by the Full Bench of the Lahore High Court in the aforequoted paragraph 12 of its judgment. In these circumstances since no appeal was filed, as such the respondent-Bank authorities are well within their right to initiate execution proceedings against the petitioner.
10. ' Resultantly, for what has been stated above, the instant petition being devoid of any merit is hereby dismissed and leave refused.