PLJ 2021 SC 249
[Appellate Jurisdiction]
Present: Maqbool
Baqar, Mazhar Alam Khan Miankhel and Qazi Muhammad Amin Ahmad, JJ
MUHAMMAD MANSHA--Appellant
versus
INDUSTRIAL DEVELOPMENT BANK OF PAKISTAN and
others--Respondents
C.A. No. 51 of 2011, decided on 22.4.2020.
(Against the judgment dated 11.05.2010 of the Lahore High
Court, Lahore passed in R.F.A. No. 592 of 2006)
Constitution of Pakistan, 1973--
----Art. 185(3)--Financial
Institutions (Recovery of Finances) Ordinance, (XLVI of 2001), Ss. 9, 23(2)--Suit
for recovery--Decreed execution proceedings--Attachment of
property--Application against attachment--Dismissed--Appeal--Sale of property after
pronouncement of decree--Past and closed transaction--Challenge
to--Sale/transfer of property in favour of appellant on 18.3.2001, thus became
a past and closed transaction and could not have been put into jeopardy through
an application purportedly seeking, to invoke provision of Section 23(2) of
2001 Ordinance, on 23.8.2004--2001 Ordinance does not, either expressly or
impliedly, provide for any retrospective application of provision of Section 23(2)
thereof, same cannot therefore operate to reverse or undo a transaction which
took effect from 18.8.2001, prior to date said provision and law containing
same, i.e. 2001 Ordinance, came into existence--It is now well settled
that when legislator alters rights of parties by taking away or conferring any
right of action, its enactments, unless in express terms they apply to pending
actions, do not affect them--We have found order of Banking Court not to be in
consonance with law--Appeal allowed. [Pp.
252 & 253] B, C & F
Financial Institutions (Recovery
of Finances) Ordinance, 2001 (XLVI of 2001)--
----S. 23(2)--Alienation of
property without prior permission--After pronouncement of judgment and decree
by Banking Court, including an interim decree under section 11, no
judgment-debtor shall without prior written permission of Banking Court
transfer, alienate, encumber or part with possession of any assets or
properties and any such transfer, alienation, encumbrance or other disposition
by a judgment-debtor in violation of this sub-section shall be void and of no
legal effect. [P.
251] A
Transfer of Property Act, 1882 (IV of 1882)--
----S. 54--Transfer of immovable property--Transfer of
immoveable property of value of hundred rupees and upwards can be made only by
registered instrument. [P.
252] D
Transfer of Property Act, 1882 (IV of 1882)--
----S. 49--Creation of right by document--A document, which is
required to be registered under said Act, can operate to create any right, title
or interest in any immoveable property, only if it is so registered. [P. 253] E
Ch. M. Amin Javed, ASC for Appellant.
M. Almas, ASC for Respondent No. 1.
Date of hearing: 19.2.2020.
Order
Maqbool Baqar, J.--A property bearing House No. 861,
Akbari Gate, Lahore, (the property), was being sought by the respondent-bank to
be attached and sold before Banking Court IV, Lahore, in the execution
proceedings initiated by the respondent bank for enforcement of a judgment and
a decree obtained by it for recovery of Rs. 32,04,620/- against Respondents
Nos. 2 and 3. The move was resisted by the appellant through an application.
However the appellant's application was dismissed and attachment as sought was
ordered by the Banking Court. The appeal filed by the appellant against the
said order has been dismissed by a learned Division Bench of the Lahore High
Court through judgment now impugned before us.
2. The judgment and decree sought to be enforced by the
respondent bank, was passed by a Banking Court, under Banking Companies
(Recovery of Loans, Advances, Credits and Finances) Act, 1997 (the repealed
Act), on 11.5.2001 (the judgment and decree).
3. The attachment and sale of the property, as noted above, was
sought on the ground that the same, at the time the above judgment and decree
was pronounced, belonged to the Respondent No. 3, who is a judgment debtor in
terms of the aforesaid judgment and decree, and the sale of the property by the
Respondent No. 3, after the said judgment, through a sale deed registered on 18.8.2001,
being violative of the restriction placed by the sub-section (2) of Section 23
of the Financial Institutions (Recovery of Finances) Ordinance, 2001 (the 2001
Ordinance), was/is, as prescribed by the said provision, void and of no legal
effect, and the property is thus available and liable to be sold towards the
satisfaction of the Respondent No. 3's liability under the judgment and decree.
4. Heard the learned counsel for the parties and perused the
record with their assistance.
5. Indeed in terms of sub-section (2) of Section 23 of the 2001
Ordinance, sale/disposition by the judgment debtor, of his property, after
pronouncement of a judgment and decree by the Banking Court, without a written
permission of the Banking Court is void. The text of the above provision runs
as follows:
"(2)
After pronouncement of judgment and decree by the Banking Court, including an
interim decree under Section 11, no judgment-debtor shall without the prior
written permission of the Banking Court transfer, alienate, encumber or part
with possession of any assets or properties and any such transfer, alienation,
encumbrance or other disposition by a judgment-debtor in violation of this
sub-section shall be void and of no legal effect."
6. Now, the essential prerequisite for a sale of the nature as
described by the above provision, to attract the restriction and to suffer the
consequences as prescribed thereby, is the pronouncement of a judgment and
decree by "the Banking Court", such being the Court as described
thereby, and therefore the judgment and decree that meets the requirement, is
the one that is rendered by the Banking Court and of no other Court. Whereas
"Banking Court", in respect of a case, (i) in which the claim does
not exceed hundred million rupees, (as in the present case), and for the trial
of offences under the 2001 Ordinance, in terms of Section 2(b)(i),
(ii) means, a Court established under section 5 of the 2001 Ordinance, and in
respect of any other case, the High Court. While Section 5 of the 2001 Ordinance,
enables the Federal Government to establish Banking Courts to exercise
jurisdiction under the said Ordinance. Therefore "The Banking Court"
in the context of Section 23(2) of the 2001 Ordinance, is the Court established
by virtue of Section 5 of the 2001 Ordinance, and thus the judgment and decree
required to invoke the provisions of Section 23(2) of the 2001 Ordinance, is
the judgment and decree passed by a Banking Court established as above, and not
any other Court and, for that matter, not a Banking Court that was established
under the repealed Act. However, in the present case the judgment and decree
sought to be enforced and on the basis whereof the respondent-bank has invoked
Section 23(2) of the 2001 Ordinance, was rendered under the repealed Act and
was pronounced by a Banking Court established under the said Act, the same is
therefore wholly irrelevant for the purposes of Section 23(2) of the 2001
Ordinance, and cannot be of any help to the Respondent No. 1 in invoking the
said provision.
7.
Even otherwise the sale deed in respect of the property was executed by
Respondent No. 3, in favour of the appellant on 18.8.2001, prior to the 2001
Ordinance, that was promulgated on 30.8.2001, and whereby the 1979 Act was
repealed and replaced by a new law as such, and upon registration of the sale
deed on 11.4.2002, whereupon the property came to be invested in the appellant,
vesting its title in the appellant exclusively, from the date the sale deed was
executed, i.e. 18.8.2001, from which date the Respondent No. 3 ceased to
have any right or interest in/or over the property at all. The sale/transfer of
the property in favour of the appellant on 18.3.2001,
thus became a past and closed transaction and could not have been put into
jeopardy through an application purportedly seeking, to invoke the provision of
Section 23(2) of the 2001 Ordinance, on 23.8.2004. The 2001 Ordinance does not,
either expressly or impliedly, provide for any retrospective application of the
provision of Section 23(2) thereof, the same cannot therefore operate to
reverse or undo a transaction which took effect from 18.8.2001, prior to the
date the said provision and the law containing the same, i.e. 2001
Ordinance, came into existence.
8.
It is now well settled that when the legislator alters the rights of parties by
taking away or conferring any right of action, its enactments, unless in
express terms they apply to pending actions, do not affect them.[1]
It is the general rule of the common law that the statute changing the law ought
not, unless the intention appears with reasonably certainty to be understood as
applied to facts, or events that have already occurred in such a way as to
confer or impose or otherwise effect rights or liabilities which the law had
defined with references to past events.[2]
9.
Indeed it is true that in terms of Section 54 of the Transfer of Property Act,
1882, the transfer of immoveable property of the value of hundred rupees and
upwards can be made only by registered instrument, whereas in terms of Section
49 of the Registration Act, 1908, a document, which is required to be
registered under the said Act, can operate to create any right, title or
interest in any immoveable
