SILK BANK LIMITED vs Qazi EHTISHAMUL HAQ and others
This matter arises from a technical controversy regarding the proper forum to approach for setting aside a judgment and decree. The core legal question is whether an application to set aside a judgment and decree passed by an appellate court should be filed before that appellate court or the original trial court. The Supreme Court held that under Section 12(2) of the Code of Civil Procedure 1908 or general law, a judgment and decree of a court can only be assailed before that very court, especially where the lower court's judgment has merged into the appellate court's judgment. The Court laid down the principle that the proper forum for assailing a decree that has been varied or finalized in appeal is the appellate court itself and not the lower court, and execution proceedings are to be suspended pending the disposal of such an application.
- Which court is the proper forum to approach for setting aside a judgment and decree that has been varied in appeal?
- Does the judgment and decree of a lower court merge into the judgment and decree of the appellate court?
- Can a Banking Court entertain an application under Section 12(2) of the Code of Civil Procedure 1908 against a decree passed by the High Court in appeal?
- Section 12(2), Code of Civil Procedure 1908
' SARMAD JALAL OSMANY, J. ---We have heard both the learned Advocates Supreme Court. The controversy in the matter is of a technical nature i.e., whether in order to have the judgment and decree dated 20-2-2008 passed by the learned High Court in First Appeal No,D-39 of 2007 set aside, the respondents should have approached that court itself or the learned Banking Court.
2. Mr. Nafis Ahmad Siddiqui, learned counsel for the petitioner has stated that per settled law where a party seeks to set aside a judgment and decree passed by any Court, only that particular Court can be approached and not any other Court. Consequently, the impugned judgment passed by the learned High Court in First Appeal No,42 of 2009 upholding the order passed by the learned Banking Court reversing its own judgment and decree which was varied vide judgment passed in First Appeal No,D-39 of 2007, is bad in law and is liable to be set aside.
3. Mr. Khalique Ahmad, learned counsel for respondent No,2, when confronted with this proposition, has stated very fairly that in the facts and circumstances of the case, the respondents would now- approach the Learned High Court for their remedy in H.C. Appeal No,39 of 2007.
4. The law is well settled i.e., that under section 12(2) of the C.P.C. Or for that matter under the general law, the judgment and decree of a Court can only be assailed before that Court when the aggrieved party seeks to have it set aside on the ground that either it was not served or that the same was obtained through mis-representation, fraud, etc. It would be seen that the judgment and decree passed by the learned Banking Court on 8-6-2007 was assailed by the petitioner in First Appeal No,D-39 of 2007. As observed above, vide order dated 20-2-2008, the first appeal was allowed and judgment and decree passed by the learned Banking Court was varied by enhancing the claim of the petitioner to Rs,8.272 million along with cost of funds by way of, sale of the mortgaged properties of the respondents. Hence, in our opinion, thereafter, this judgment and decree attained finality and the judgment and decree of the lower Court merged therein.
Consequently, the proper forum for assailing such decree was the High Court and not the Banking Court.
5. In view of the foregoing discussion, this petition is converted into an appeal and is allowed by consent, to the extent that the judgment dated 15-4-2010 of the learned High Court passed in First Appeal No,42 of 2009 is set aside. The respondents may, if they so like, approach the High Court for setting aside of the judgment and decree passed in First Appeal No, D-39 of 2007 by filing of an application and if such is filed, execution proceedings would be suspended till the disposal of the said application.
6. This petition stands disposed of in the above terms.