 
 
IN THE SUPREME COURT OF PAKISTAN 
(Appellate Jurisdiction) 
 
Present: 
Mr. Justice Anwar Zaheer Jamali, HCJ 
 
 
 
 
Mr. Justice Mian Saqib Nisar 
Mr. Justice Amir Hani Muslim 
Mr. Justice Iqbal Hameedur Rahman 
 
 
 
 
Mr. Justice Khilji Arif Hussain 
 
Civil Appeal No.280-L/2009 
(Against the judgment dated 16.4.2009 of the 
Lahore High Court, Lahore passed in EFA 
No.489/1999) 
 
Shahida Bibi etc. 
 
 
 
Appellant(s) 
Versus 
 
Habib Bank Limited etc. 
 
Respondent(s) 
 
For the Appellant(s): 
 
 
Mian Muhammad Nawaz, ASC 
 
 
 
 
 
 
Raja Muhammad Sabir, ASC 
 
For Respondent No.1:  
 
Mr. Muhammad Shuja Baba, ASC 
 
For Respondents No.2 - 3: 
 
Mr. Shahid Ikram Siddiqui, ASC 
 
Date of Hearing:  
 
 
15.03.2016 & 17.03.2016 
… 
JUDGMENT 
MIAN SAQIB NISAR, J.- Vide order dated 10.6.2014 a 
bench of this Court requested the Hon’ble Chief Justice of Pakistan for 
the constitution of a larger bench in order to reconcile two apparently 
conflicting judgments of this Court reported as Muhammad Attique 
Vs. Jami Limited and others (PLD 2010 SC 993) and Mst. Asma 
Zafarul Hassan Vs. M/s United Bank Ltd. and another (PLJ 1981 SC 
242) (1981 SCMR 108).   
2. 
 
 
In order to decide this appeal, a comprehensive 
narration of the facts is required:- respondent No.1/bank (decree holder) 
filed a suit on 30.5.1994 for recovery of finances granted to respondent 
No.2/customer, for whom Rana Muhammad Aslam, the predecessor-in-
Civil Appeal No.280-L/2009 
 
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interest of respondents No.3(i) to (vi) (judgment debtor), stood surety having 
mortgaged his property bearing No.S-57-R-32-E, 5-Temple Road, 
Lahore measuring approximately 12 marlas 86 square feet (lower portion of 
a double storied residential house; hereinafter referred to as the ‘property’). A decree for 
the recovery of Rs.600,871.10/- was passed (alongwith Rs.15,167/- as costs) 
under Section 6 of the Banking Tribunals Ordinance, 1984 (1984 
Ordinance) in favour of the decree holder and against the judgment debtor 
on 20.3.1995 which (decree) has attained finality. Subsequently, the 
decree holder filed an execution petition under Section 11 of the 1984 
Ordinance and a court auctioneer was appointed on 24.10.1995 to 
conduct the sale of the mortgaged property. In this order it is 
unequivocally mentioned that though Section 11(3) of the 1984 
Ordinance enables a decree holder to sell mortgaged property itself 
without intervention of the Banking Tribunal, but in the instant case 
the decree holder sought execution of the mortgaged property through 
the Tribunal. The first auction was held, in which the predecessor-in-
interest of the appellants, Liaqat Ali Mujahid (auction purchaser), was the 
highest bidder, with a bid of Rs.226,000/- (which was deposited by him with the 
Executing Court). The judgment debtor filed an objection petition 
challenging the auction to the auction purchaser on the ground that the 
value of the property had been assessed by the surveyor of the decree 
holder as Rs.950,000/- at the time of provision of finance to respondent 
No.2. The objection petition was accepted by the Tribunal vide order 
dated 27.11.1996. A fresh proclamation of sale was issued, a reserve 
price of Rs.600,000/- was fixed and the second auction was held on 
12.1.1997 which failed. Subsequently, the auction purchaser offered to 
raise his bid from Rs.226,000/- to Rs.400,000/-. Meanwhile, the 
Banking Companies (Recovery of Loans, Advances, Credits and 
Finances) Ordinance, 1997 (1997 Ordinance) was promulgated on 4.2.1997 
Civil Appeal No.280-L/2009 
 
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and the Banking Tribunals constituted under the 1984 Ordinance were 
abolished vide notification dated 11.2.1997 after which the execution 
petition stood transferred to the Banking Court constituted under the 
1997 Ordinance as is manifest from the order dated 27.2.1997 of the 
newly constituted Banking Court (note:- the Ordinance of 1997 was replaced by the 
Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act, 1997 (1997 Act) 
which came into force on 31.5.1997). On 8.5.1997 the Banking Court rejected 
the auction purchaser’s offer to raise his bid for the reason that his 
revised offer was still below the assessed value of the property and the 
reserve price, which (offer) was neither acceptable to the judgment 
debtor nor the decree holder. Through the same order, upon the request 
of the decree holder, the Banking Court allowed the former to sell the 
mortgaged property by public auction or private treaty, subject to 
confirmation by the court. The relevant part of the order reads as 
under:- 
 
“In reply to the application, the decree holder 
has sought permission to sell the mortgaged 
property itself and the law permits the same. The 
decree holder is, therefore, permitted to sell 
the mortgaged property either by way of 
public auction or through private treaty but 
the proceedings would be subject to confirmation 
by this court.  
 
For report of sale and filing of the sale 
proceedings by the decree holder now to come up 
on 10.6.97.” 
(Emphasis supplied) 
 
There are numerous dates on which the Court awaited the report of the 
court auctioneer for the sale of the property through auction and one of 
the orders even suggests that the Banking Court approved the draft 
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proclamation of sale in terms of Order 21 Rule 66 of the Code of Civil 
Procedure, 1908 (CPC) subsequent to which the third auction took place 
on 7.9.1998. During the proceedings the counsel for the decree holder 
had been appearing but no one appeared on behalf of the judgment 
debtor of the case. The order dated 23.9.1998 reveals that the auction 
purchaser, whose previous offer of Rs.400,000/- was not accepted by 
the Banking Court, when present in the Court improved his offer to the 
tune of Rs.6,16,038/- which (offer) was accepted by the decree holder. 
However the Court ordered:- 
 
“Now it is to be seen whether auction is to be 
confirmed for the above referred amount or the 
property is to be re-auctioned.” 
 
The Court adjourned the matter to 2.10.1998 and upon an application 
filed by the court auctioneer claiming fee, issued notice to the decree 
holder. No notice was issued to the judgment debtor. Such sale was 
confirmed by the Banking Court vide order dated 2.10.1998 and the file 
was consigned to the record room. The relevant part of the above order 
reads as follows:- 
 
“Whereas the auction purchaser has purchased 
the property mentioned in ‘Fard Taliq’ for a sum 
of Rs.6,16,038/- as a result of private negotiation 
with the decree holder, therefore, the same is 
confirmed in favour of the auction purchaser Mr. 
Liaqat Ali Mujahid. He be issued sale certificate 
on his application subject to payment of 
remaining price deducting 1/4th amount already 
deposited till 15.11.98.”       
 (Emphasis supplied) 
 
Civil Appeal No.280-L/2009 
 
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On 7.12.1998 seemingly on an application by the auction purchaser, 
the file was resurrected and the following order was passed:- 
 
 
“Pursuant to my order dated 18.11.98 on 
the application referred to above, the file has 
been put up before me today. 
The auction purchaser Mr. Liaqat Ali 
Mujahid has sought the Sale Certificate being the 
highest bidder of property No.S-57-R-32 E 
situated at 5-Temple Road, Lahore. The report of 
the Nazir shows that the purchase price of 
Rs.622,038/- has been deposited by the auction 
purchaser in out of which Rs.616,038/- has been 
given to the decree holder bank and now 
remaining Rs.6000/- are lying in this court which 
are to be disbursed to the judgment debtor being 
the excess amount from the decretal amount. Sale 
Certificate be issued to Mr. Liaqat Ali Mujahid 
the auction purchaser in accordance with law. 
 
File be consigned to the record room as 
before.” 
 
The sale certificate was issued on 8.12.1998. Thereafter the auction 
purchaser moved an application seeking possession of the purchased 
property and for that purpose, a Commission was appointed by the 
Banking Court vide order dated 19.4.1999 and eventually the 
possession was delivered to the auction purchaser. The judgment 
debtor filed an application under Order 21 Rule 90 of the CPC on 
15.4.1999 challenging the sale of the property in favour of the auction 
purchaser and he was directed to deposit of 20% of the sale price i.e. 
Rs.123,200/- with the Banking Court before 16.7.1999 which was so 
done on 8.7.1999. Vide order dated 20.9.1999 the application under 
Order 21 Rule 90 of the CPC filed by the judgment debtor was 
Civil Appeal No.280-L/2009 
 
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dismissed on the grounds that (i) he had been participating in the 
proceedings throughout, (ii) the judgment debtor previously filed 
objections which were disallowed by the Banking Court, (iii) some 
earlier attempts were made to sell the property but none came forward 
except the auction purchaser, (iv) the decree holder and the auction 
purchaser mutually negotiated the sale of the property and as a result 
the decree holder agreed to the disposal of the property at Rs.616,038/- 
as is evident from the order dated 23.9.1998. The Banking Court finally 
adjudged that the property has been rightly sold through private 
negotiation. The plea taken up by the respondent that he was unaware 
of the execution proceedings was discarded as he was held to be 
participating in the proceedings; besides the property was sold on 
29.3.1998, whereas the objection petition was moved on 15.4.1999 
which was barred by time and no application for condonation of delay 
was filed. Thus the application under Order 21 Rule 90 of the CPC was 
dismissed both on merits as also on the ground of limitation. Aggrieved 
of the above, the judgment debtor assailed this order in appeal and the 
learned Appellate Court whilst accepting the same (appeal) came to the 
conclusion that once having resorted to selling the property through 
public auction as per the provisions of Order 21 of the CPC, the same 
could not be sold through private negotiation and thus the Banking 
Court had committed an illegality. Thereafter, the auction purchaser 
filed an appeal before this Court which has culminated into the instant 
opinion.  
3. 
 
Learned counsel for the appellants by relying upon the 
judgments reported as Muhammad Attique (supra) and Asma Zafarul 
Hassan (supra) argued that there is no bar upon the Executing Court 
against selling the property through private treaty/negotiation. He 
submitted that initially the auction procedure for the purposes of sale of 
Civil Appeal No.280-L/2009 
 
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the property as envisaged by Order 21, CPC was adopted, but due to 
numerous failed attempts, the Banking Court was authorized to permit 
sale to take place through private treaty between the decree holder and 
the auction purchaser and to subsequently confirm such sale. He 
submitted that the view set out by the learned High Court that the sale 
could not be made otherwise than in accordance with Order 21, CPC is 
violative of the judgments cited above, and since the decree was passed 
prior to enactment of the 1997 Act therefore its execution would be 
governed by the 1984 Act, Section 11(3) whereof allowed for sale by 
private treaty; and if it is the 1997 Act which is to govern the execution 
process, even then sale by private treaty is permissible under the law as 
the same is amply covered by the phrase “in such other manner as the 
Banking Court may deem fit” as set out in Section 18(1) of the said Act. 
Learned counsel submitted that there was conscious application of 
mind by the learned Tribunal, as no bidders came forth as a result of 
which the numerous attempts at auction failed, it was well within the 
jurisdiction of the Tribunal and in the interests of justice to allow for 
sale by private treaty. He further argued that the judgment debtor had 
participated in the execution proceedings throughout and was well 
aware that the property could not be sold through auction. When the 
auction purchaser moved an application to the Court seeking 
permission for sale of the property through private negotiation, the 
judgment debtor was not required to be issued any notice, rather it was 
a matter between the decree holder and the auction purchaser on the 
one hand and the learned Executing Court on the other. He also 
contended that the objection petition was filed beyond the period of 
thirty days and was thus rightly discarded by the learned Court as 
being barred by time.  
Civil Appeal No.280-L/2009 
 
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4.   
Conversely, learned counsel for the respondents has led us 
to various orders of the Banking Tribunal/Court and argued that no 
notice had been issued to the judgment debtor whose property was to 
be sold through private treaty, rather a notice was issued to the decree 
holder when the auction purchaser applied for sale of the property 
through private treaty. In this manner the judgment debtor had been 
condemned unheard and therefore the entire process of the private sale 
in favour of the auction purchaser stands vitiated. He also submitted 
that once the process and procedure of auction under the CPC was 
resorted to for the disposal of a mortgaged property thereafter the Court 
did not have the jurisdiction to deviate therefrom and take a different 
course. Reliance in this regard has been placed on the cases reported as 
Muhammad Rafiq Vs. United Bank Limited and another (2005 CLD 
1162), National Bank of Pakistan and 117 others Vs. SAF Textile 
Mills Ltd. and another (PLD 2014 SC 283) and Muhammad Attique 
(supra). 
5. 
 
Heard. The propositions which have emerged for the 
purposes of the present appeal are:- 
 
(i) 
What was the law applicable on 8.5.1997, 23.9.1998 and 
2.10.1998, when the Banking Court allowed the property to 
be sold by the bank through private treaty, the offer of the 
appellant was accepted by the bank and the confirmation of 
the private sale in favour of the appellant respectively, and 
what is the effect of such law on the facts and circumstances 
of the present case; 
 
(ii) 
Whether the order dated 8.5.1997 passed by the Banking 
Tribunal was superseded by the Banking Court vide its order 
dated 10.6.1997 and if so, to what effect; 
 
(iii) 
Whether 
under 
the 
1984 
Ordinance 
or 
the 
1997 
Ordinance/Act both being special laws, the Banking 
Civil Appeal No.280-L/2009 
 
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Tribunal/Court in execution proceedings, could adopt any 
procedure it deemed fit for the sale of the mortgaged 
property other than the one (the procedure) prescribed by the 
two laws mentioned above; 
 
(iv) 
Having once adopted a mode of execution as set out in the 
CPC, can a court deviate therefrom; 
 
(v) 
With respect to the merits of the case, does the sale achieve 
validity on the touchstone of either of the special laws; 
 
(vi) 
To reconcile the two apparently conflicting judgments of this 
Court identified in paragraph No.1 of this opinion, i.e. 
Muhammad Attique (supra) and Asma Zafarul Hassan (supra). 
 
In order to resolve the propositions at hand, it is instructive to 
reproduce the relevant provisions from the 1984 Ordinance, 1997 
Ordinance and 1997 Act:- 
 
1984 Ordinance 
 
“11. Execution of decree.– The Banking 
Tribunal shall, on the written application of the 
decree-holder, forthwith order execution of the 
decree or order and where the decree or order 
pertains to money recover the amount covered, 
by the decree or order, as the case may be, as 
arrears of land revenue or in such other 
manner as may be applied for by the 
decree-holder, 
in 
accordance 
with 
the 
provisions of the Code of Civil Procedure, 
1908 (Act V of 1908), or any other law for the 
time being in force: 
(Emphasis supplied) 
 
Provided   ……………………………………  
 
(2) 
………………………………………………… 
 
Civil Appeal No.280-L/2009 
 
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(3) 
Notwithstanding anything contained in 
this Ordinance, where a banking company holds 
any property belonging to the judgment-debtor as 
security, it may sell the same without intervention 
of Court either by public auction or private treaty 
to any person, and appropriate the proceeds 
thereof according to law towards total or partial 
satisfaction of the decree: 
 
Provided that proper account of the 
proceeds shall be filed with the Banking Tribunal 
not later than thirty days from the date of such 
satisfaction: 
 
Provided further that, where the Banking 
company wishes to sell the property by private 
treaty, it shall, before concluding the sale, give to 
the judgment-debtor, by a notice, the option to 
purchase or redeem it, as the case may be, at the 
same price within such time as the banking 
company may specify in such notice. 
 
(4) 
………………………………………………… 
 
(5) 
………………………………………………… 
 
1997 Ordinance 
 
7. Powers of Banking Courts.– (1) ……………… 
 
(6) All proceedings, including proceedings 
following the filing of an arbitration award and 
proceedings for the execution of a decree within 
the jurisdiction of a Banking Court, pending in 
any Special Court constituted under the Banking 
Companies (Recovery of Loans) Ordinance, 1979 
(XIX 1979), any Banking Tribunal constituted 
under the Banking Tribunals Ordinance, 1984 
(LVIII of 1984) or any other Court including a 
High Court shall stand transferred to the Banking 
Civil Appeal No.280-L/2009 
 
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Court having jurisdiction. On transfer of 
proceedings under this subsection, a Banking 
Court shall require the attendance of the parties 
through notice issued in accordance with the 
procedure for service of summons or notice laid 
down in subsection (2) of section 9. 
 
(7) In respect of proceedings transferred to a 
Banking Court under subsection (6) the Banking 
Court shall proceed from the stage at which 
the proceedings have been transferred and 
shall not be bound to recall and rehear any 
witness who has given evidence before the 
transfer, and may act on the evidence already 
recorded or produced before the Court or 
Tribunal from which the proceedings have been 
transferred. 
(Emphasis supplied) 
 
12. Execution of Decree.--(1) The Banking Court 
shall, on the written or oral application of the 
decree-holder, forthwith order execution of the 
decree or order and, where the decree or order 
pertains to money, may direct, that the amount 
covered by the decree or order, as the case may 
be, shall be recovered as arrears of land revenue 
in accordance with the provisions of the Code of 
Civil Procedure, 1908, or any other law for the 
time being in force or in such other manner as the 
Banking Court may deem fit. 
 
(2) Subject to subsection (3), where a banking 
company is a mortgagee of any property 
belonging to the judgment-debtor, it may, sell 
such property without the intervention of the 
Banking Court either by public auction or by 
private treaty to any person or purchase such 
property on its own account and appropriate the 
Civil Appeal No.280-L/2009 
 
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proceeds thereof towards total or partial 
satisfaction of the decree. 
 
(3) Where the judgment debtor or any person 
acting on his behalf does not voluntarily give 
possession of the mortgaged property sold or 
sought to be sold or purchased or sought to be 
purchased or purchased by the banking company 
under subsection (2), the Banking Court on the 
application of the Banking Company or the 
purchaser shall put the banking Company or, as 
the case may be, the purchaser in possession of 
the mortgaged property in accordance with the 
provisions of Order XXI of the Code of Civil 
Procedure. 
 
(4) 
………………………………………………… 
 
(5) Where the banking company wishes to sell the 
property by private treaty or to purchase it on its 
own account it shall, before concluding the sale 
give to the judgment debtor an option by a notice 
in writing for purchasing or redeeming such 
property at the price at which the banking 
company proposes to sell or purchase within such 
period as the banking company may specify in 
such notice which shall not, in any case, be less 
than seven days. 
 
(6) 
………………………………………………… 
 
(7) 
………………………………………………… 
 
(8) 
………………………………………………… 
 
23. Repeal.– The Banking Companies (Recovery 
of Loans) Ordinance 1979 (XIX of 1979), and 
Banking Tribunals Ordinance, 1984 (LVIII of 
1984) are hereby repealed. 
 
1997 Act 
Civil Appeal No.280-L/2009 
 
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“7. 
Powers of Banking Courts.– (1)………… 
 
(6) 
All proceedings, including proceedings 
following the filing of any arbitration award and 
proceedings for the execution of a decree within 
the jurisdiction of a Banking Court, pending in 
any Special Court constituted under the Banking 
Companies (Recovery of Loans) Ordinance, 1979 
(XIX 1979), or under the Banking Companies 
(Recovery of Loans, Advance, Credits and 
Finances) Ordinance, 1997 (XXV of 1997), or 
any Banking Tribunal under the Banking 
Tribunals Ordinance, 1984 (LVIII of 1984), or 
any other Court including a High Court shall 
stand transferred to, or be deemed to be 
transferred to the Banking Court having 
jurisdiction. On transfer of proceedings under 
this sub-section, a Banking Court shall require 
the attendance of the parties through notices 
issued in accordance with the procedure for 
service of summons or notice laid down in 
subsection (3) of section 9. 
 
(7) In respect of proceedings transferred to a 
Banking Court under sub-section (6) the 
Banking Court shall proceed from the stage 
which the proceedings had reached immediately 
prior to the transfer and shall not be bound to 
recall and re-hear any witness and may act on 
the evidence already recorded or produced 
before the Court or Tribunal from which the 
proceedings 
were 
transferred. 
(Emphasis 
supplied) 
 
18. Execution of Decree.– (1) The Banking Court 
shall, on the 
written application of the 
decree-holder, forthwith order execution of the 
decree or order at any time seven days after the 
Civil Appeal No.280-L/2009 
 
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passing of the decree or order and, where the 
decree or order pertains to money, may direct 
that the amount covered by the decree or order, 
as the case may be, shall be recovered in 
accordance with the provisions of the Code of 
Civil Procedure, 1908, or any other law for the 
time being in force or in such other manner as 
the Banking Court may deem fit: 
(Emphasis supplied)  
 
  
Provided that the Banking Court may, at 
the time of passing a final decree pass an order of 
the nature contemplated by subsection (1) of 
section 16 to the extent of the decretal amount. 
 
 (2) 
Subject to subsection (3), in cases of 
pledged or mortgaged property a banking 
company may sell the same with or without the 
intervention of the Banking Court either by public 
auction or by inviting sealed tenders and 
appropriate the proceeds thereof towards total or 
partial satisfaction of the decree. 
 
(3) 
………………………………………………… 
 
(4) 
………………………………………………… 
 
(5) 
Where the banking company wishes to 
sell a property by inviting sealed tenders, it shall, 
invite offers through advertisements in one 
English and one Urdu newspaper which are 
circulated widely in the city in which the sale is to 
take place giving not less than thirty days time for 
submitting offers. The sealed tenders shall be 
opened in the presence of the tenderers or their 
representatives or such of them as attend: 
 
  
Provided that before concluding the sale 
the 
judgment-debtor 
shall 
be 
given 
an 
opportunity to purchase the property at a 
Civil Appeal No.280-L/2009 
 
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matching price to be paid in cash within a period 
of thirty days. 
 
(6) 
………………………………………………… 
 
28. Repeal.– (1) 
The Banking Companies 
(Recovery of Loans) Ordinance, 1979 (XIX of 
1979), the Banking Tribunals Ordinance, 1984 
(LVIII of 1984), and the Banking Companies 
(Recovery of Loans, Advances, Credits and 
Finances) Ordinance, 1997 (XXV of 1997), are 
hereby repealed. 
 
(2) 
………………………………………………” 
 
6. 
 
With respect to the first proposition we may reiterate the 
following: a decree for the recovery of a certain amount was passed in 
this case under Section 6 of the 1984 Ordinance and an execution 
petition was filed under Section 11 of the said Ordinance. During the 
pendency of the execution proceedings, the 1997 Ordinance was 
promulgated on 4.2.1997 and the Banking Tribunals constituted under 
the 1984 Ordinance were abolished vide notification dated 11.2.1997 
after which the execution petition stood transferred to the Banking 
Court constituted under the 1997 Ordinance. The 1997 Ordinance was 
replaced by the 1997 Act which (Act) came into force on 31.5.1997. The 
1997 Ordinance was promulgated on 4.2.1997 and by virtue of Article 
89(2)(a)(ii) of the Constitution of the Islamic Republic of Pakistan, 1973 
(the Constitution), it was to stand repealed at the expiration of 120 days of 
its promulgation, i.e. on 3.6.1997. However before the expiry of 120 
days, the 1997 Ordinance was laid before Parliament under Article 
89(3)(b) of the Constitution and culminated into the 1997 Act which 
was promulgated on 31.5.1997, i.e. the day it received the President’s 
Civil Appeal No.280-L/2009 
 
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assent. The 1997 Act repealed the 1997 and 1984 Ordinances (the latter of 
which already stood repealed under the 1997 Ordinance).  
7. 
 
Accordingly, the 1984 Ordinance stood irrevocably repealed 
on 4.2.1997 by virtue of the 1997 Ordinance, ergo for all legal intents 
and purposes, the 1984 Ordinance ceased to have effect on the said 
date. The fact that there was no saving clause in the 1997 Ordinance 
(and none in the 1997 Act either) to the effect that all proceedings, rights or 
liabilities under the 1984 Ordinance would continue to be governed by 
the latter ordinance lends credence to this interpretation. Instead there 
was only a transfer provision in the form of Section 7(6) of the 1997 
Ordinance (and the 1997 Act), providing that all proceedings, including 
proceedings for the execution of a decree within the jurisdiction of a 
Banking Court, pending in any Banking Tribunal constituted under the 
1984 Ordinance (and the 1997 Ordinance) shall stand transferred to the 
Banking Court having jurisdiction under the 1997 Ordinance (and the 
1997 Act).  
8. 
 
In any event, it is indeed settled law, in line with Section 6 of 
the General Clauses Act, 1897, that any act done or any action taken or 
purported to have been done or taken under or in pursuance of the 
repealed Act, shall in so far as it is not inconsistent with the provisions 
of new Act, be deemed to have been done or taken under the 
corresponding provisions of the new Act. A litigant is provided 
protection with respect to any right, privilege, obligation or liability 
acquired or accrued under any enactment repealed. Substantive laws 
are only very exceptionally amended with retrospective effect for the 
eminently sensible reason that one does not change the goal posts mid-
game. Unless a Legislature enacts a new law (the 1997 Act) to be 
specifically retrospective, and that too with great particularity of 
language, the Courts are not to assume retrospectivity. There is nothing 
Civil Appeal No.280-L/2009 
 
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in the repealing section, i.e. Section 28 of the 1997 Act, to indicate that 
the Legislature meant for such Act to be applied with retrospective 
effect. Therefore the question of retrospective application of the 
provisions of the 1997 Ordinance (and the 1997 Act) does not arise, as the 
execution proceedings in the case at hand, though instituted under the 
1984 Ordinance, stood transferred to the Banking Court established 
under the 1997 Ordinance and then the 1997 Act, and in the absence 
of any saving clause as mentioned above, the relevant provisions of the 
1997 Ordinance (and then the 1997 Act) were to apply on the date of transfer 
of such proceedings and thereafter. The Banking Court is not required 
to proceed de novo, rather from the stage which the proceedings had 
reached immediately prior to the transfer as envisaged by Section 7(7) 
of the 1997 Act (reproduced hereinabove).  
9. 
 
Section 12 of the 1997 Ordinance dealt with execution of 
decrees and provided that where a banking company is a mortgagee of 
any property belonging to the judgment-debtor, the banking company 
may sell such property without the intervention of the Banking Court 
either by public auction or by private treaty to any person or purchase 
such property on its own account. Further, where the banking company 
wished to sell the property by private treaty or to purchase it on its own 
account it was to, before concluding the sale, give to the judgment 
debtor an option by a notice in writing for purchasing or redeeming 
such property at the price at which the banking company proposed to 
sell or purchase within such period as the banking company may 
specify in such notice which was not, in any case, to be less than seven 
days. Therefore the 1997 Ordinance clearly permitted for sale by way of 
private treaty, subject to the written notice of option to purchase being 
provided to the judgment debtor. However these provisions only came 
into effect from the date of promulgation of the 1997 Ordinance till its 
Civil Appeal No.280-L/2009 
 
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repeal, i.e. from 4.2.1997 to 31.5.1997, after which the relevant 
provisions of the 1997 Act came into force. The provisions governing 
execution of decree under the 1997 Act were contained in Section 18, 
which provided that in cases of mortgaged property a banking company 
could sell the same with or without the intervention of the Banking 
Court by inviting sealed tenders in which case the banking company 
was to invite offers through advertisements in one English and one 
Urdu newspaper having a wide circulation in the city in which the sale 
was to take place giving not less than thirty days’ time for submission of 
offers, provided that before conclusion of the sale the judgment-debtor 
was to be given an opportunity to purchase the property at a matching 
price to be paid in cash within a period of thirty days. There was a clear 
departure in the wording of Section 18 of the 1997 Act from that of 
Section 12 of the 1997 Ordinance, the former allowing a banking 
company to sell the mortgaged property by sealed tenders, and the 
latter by private treaty, thereby implying that sale by private treaty was 
no longer permissible under the 1997 Act. This was the situation 
prevailing from 31.5.1997 onwards, and this is indubitably the reason 
that the Banking Court on 10.6.1997 passed an order to the effect that 
“…For report of sale by auction or inviting tenders of the mortgaged property by the 
decree holder…”, and not “sale by auction or private treaty”. This distinction 
needs to be appreciated and it is the reason why the subsequent order 
of the Banking Court allowing the sale by private negotiation/treaty (and 
the issuance of the sale certificate) is violative of the law that existed at the 
relevant point of time. 
Notwithstanding the above stated legal position, the sale was even 
otherwise illegal on the touchstone of the 1984 Ordinance. Section 11(3) 
of the 1984 Ordinance required the bank (decree holder) in case of sale 
through private negotiation to give to the judgment debtor, by a notice, 
Civil Appeal No.280-L/2009 
 
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the option to purchase or redeem the property, as the case may be, at 
the same price within such time as the banking company may supply in 
such notice, but this option, a right conferred upon the judgment-
debtor, was never afforded to him. Therefore, the sale was not made as 
per the law and cannot be sustained even by virtue of the repealed 1984 
Ordinance. It is settled that where law requires an act to be done in a 
particular manner it has to be done in that manner alone and such 
dictate of law cannot be termed a mere technicality. 
10.  
In the case of Asma Zafarul Hassan (supra) leave was refused 
to challenge the order of the Sindh High Court whereby the court 
dismissed an application for setting aside a sale of property in execution 
proceedings. The relevant facts are that after two attempts to sell the 
property through public auction failed, the court allowed the sale 
through private offer arranged through the Nazir’s personal efforts. It 
must be kept in mind that these events occurred during 1977 i.e. before 
the promulgation of special banking laws and hence the relevant 
provisions of the CPC would have been applicable. Through the leave 
refusing order this Court, inter alia, held that the High Court gave its 
“tacit consent” to the “private offer” mode of sale and by ineluctable 
inference that it was not necessary to pass a specific order to this effect 
and further that unless a procedure was specifically barred it may be 
adopted by the court for serving the ends of justice. This finding is not 
in consonance with that of Muhammad Attique’s case (supra) wherein 
this Court upheld the order of the Lahore High Court remanding the 
challenge/objections to the auction of a property in execution 
proceedings to the Banking Court for decision afresh. The sale of the 
property in question had been effected through a purportedly flawed 
public auction. For our purposes the relevant finding of this Court was 
that the provisions of the Financial Institution (Recovery of Finances) 
Civil Appeal No.280-L/2009 
 
- 20 -
Ordinance 2001 (FIO 2001) allow the Executing Court to choose the mode 
of execution in accordance with the CPC or any other law in force but 
“once it has chosen the mode as provided in the Civil Procedure Code, 
then it cannot be permitted to divert that mode at subsequent stage 
without conscious application of mind” (emphasis supplied). The 
conundrum before us is this; is the Executing Court simply required to 
give its “tacit consent” to a new/different mode of sale or must it do so 
through “conscious application of mind”?  
11.  
In execution proceedings the court of law must always 
proceed to employ the principles of balancing and proportionality in 
order to accomplish a state of affairs where the rights of both the 
decree-holder and those of the judgment debtor are secured. In the 
same manner the court must be conscious of protecting a third party 
such as the auction purchaser. Proportionality1 analysis involves 
different steps, each involving a test. First, in the “legitimacy” stage, the 
Court confirms that the action has been taken by a person authorized to 
do so. The second phase – “suitability” – is devoted to judicial verification 
that, with respect to the act in question, the means adopted are rationally 
related to stated objectives. The third step, called “necessity,” is to ensure 
that the measure does not curtail the right of a party any more than is 
necessary for achievement of stated goals. The last stage, “balancing in 
the strict sense,” requires that the court weighs the benefits of the act 
against the costs incurred by infringement of the right, in order to 
determine which right shall prevail, in light of the respective importance 
of the values in tension, given the facts. The principles of proportionality 
outlined above are increasingly defining jurisprudence across the globe. 
For our purposes the court is to achieve the purpose of the execution 
                                                   
1 Essay, March 2008, Proportionality Balancing and Global Constitutionalism by Alec Stone Sweet, Yale 
Law School and Jud Mathews, Yale Law School. 
Civil Appeal No.280-L/2009 
 
- 21 -
viz. the recovery of money owed to the decree holder through sale of the 
judgment debtor’s property; to this end the court holds the rights of 
every litigant equally dear. The ideal manner of sale of the judgment 
debtor’s property is indeed through public auction and the open 
manner in which this may be effected has been aptly defined in Lanvin 
Traders, Karachi Vs. Presiding Officer, Banking Court No.2 (2013 
SCMR 1419) per our learned brother, Justice Anwar Zaheer Jamali. 
But sale(s) of property in execution proceedings are essentially distress 
sales and the circumstances are far from ideal. Therefore the legislature 
in its wisdom has allowed alternative means of sale. The court may 
depart from a preferred mode of sale if the circumstances warrant such 
departure. But when it does depart therefrom it must be through a 
conscious application of mind because it must itself be convinced that a 
less “ideal” mode of sale is necessitated by the circumstances prevailing 
and these must be set out in order to reassure all the parties that the 
sale proceedings are open and transparent and the court is conscious of 
its solemn duty. Tacit consent would not meet the standard of openness 
required of the executing court. It is its reasons for so doing (adopting an 
alternative method) which shall inspire confidence.    
12.  
In the case reported at National Bank of Pakistan Vs. 
Paradise Trading Company (2015 CLD 366) this Court has held that, 
 
“Now it is admitted fact that in execution 
proceeding the Banking Tribunal has adopted the 
procedure of selling of the mortgage property by 
public auction. Once such procedure for selling 
the mortgage property through public auction is 
adopted by the Banking Tribunal then no other 
mode or procedure is permissible for selling of 
mortgage property except by public auction”. 
 
Civil Appeal No.280-L/2009 
 
- 22 -
With the greatest of respect we are constrained to state that the 
aforesaid judgment is per incuriam and not good law for the reason that 
the court was not assisted properly and appears not to have considered 
Muhammad Attique’s case (supra) which lays down the correct law i.e. 
the executing court may indeed adopt a different method of sale if 
required, the only proviso being that such change in course must be 
after due application of mind by assigning justifiable reasons. To hold 
otherwise is to shackle the court in an undesirable manner and hold it 
hostage to its own earlier orders.  
13.  
Our attention has been drawn to a recent judgment of this 
Court cited at Zakaria Ghani Vs. M. Ikhlaq Memon (PLD 2016 SC 
229) in support of the proposition that the executing court may adopt a 
different method of sale without a specific order to this effect. The said 
judgment is authored by myself and I have given anxious consideration 
to the aforesaid proposition and whether the said judgment indeed 
supports such a rendering of law. The question before this Court in the 
said case was not whether or not an executing court was to adopt a 
different method of sale after due application of mind (or otherwise) but 
the more fundamental question of whether or not the court could 
change the course or mode adopted at all? It was this latter question 
that the court answered in the affirmative through the said judgment by 
holding that, 
 
“…………This finding is also sufficient to 
dispose of the accompanying submission which 
was to the effect that once an order has been 
passed stipulating that the sale is to be made 
under the CPC it is not open to the court to 
switch over to any alternative procedure. 
Although the correctness of this assertion is 
Civil Appeal No.280-L/2009 
 
- 23 -
even otherwise doubtful in view of the case law 
including several judgments by this court, to 
which reference is made in a subsequent part 
herein, the contention is ill founded on a factual 
plane.” 
(Emphasis supplied) 
 
Hence this judgment does not stand in the way of our present finding 
which is that an executing court may change the mode of sale after due 
application of mind and giving reasons as mentioned above; the manner 
in which it was to adopt a new course was a moot point in the said 
judgment. 
14.  
The answers to the questions devised in the earlier part of 
this opinion can thus be summarized as follows: 
 
(i) 
The law applicable on 8.5.1997, 23.9.1998 and 
2.10.1998, (when the Banking Court allowed the property to be sold 
by the bank through private treaty, the offer of the appellant was 
accepted by the bank and the confirmation of the private sale in favour of 
the appellant respectively) was the 1997 Ordinance on the 
first of said dates and thereafter the 1997 Act; 
 
(ii) 
The order dated 8.5.1997 passed by the Banking 
Tribunal was not superseded by the Banking Court 
vide its order dated 10.6.1997 for the reason that the 
latter order was illegal for the reasons outlined in the 
earlier part of this opinion; 
 
(iii) 
Under the 1984 Ordinance or the 1997 Ordinance/Act 
both being special laws, the Banking Tribunal/Court 
in execution proceedings could adopt any procedure it 
deemed fit for the sale of the mortgaged property other 
than the one (the procedure) prescribed by the said two 
laws; 
 
Civil Appeal No.280-L/2009 
 
- 24 -
(iv) 
Having once adopted a mode of execution as set out in 
the CPC, an executing court can deviate therefrom 
with due application of mind and upon assigning 
justifiable reasons; 
 
(v) 
The sale was even otherwise illegal on the touchstone 
of either of the special laws; 
 
(vi) 
The correct law has been laid down in the case of 
Muhammad 
Attique 
(supra) 
and 
the 
judgment 
delivered in Asma Zafarul Hassan (supra) is not the 
correct law. 
 
 
  In light of the above, subject to the reasons assigned in this 
opinion while upholding the impugned judgment, this appeal is 
dismissed with the consequence that the private sale made in favour of 
the auction purchaser (predecessor-in-interest of the appellants) as confirmed by 
the Banking Court stands set aside. However, keeping in view the 
peculiar facts and circumstances  of the case, particularly that the 
auction purchaser has paid an amount of Rs.6,16,038/- as sale 
consideration which amount has been received (wholly or partly) by the 
decree holder in satisfaction of its decree and has no further claim in 
this behalf; and as the real contest is between the appellants and the 
judgment debtor, thus in order to safeguard the interest of both the 
parties and keeping in view the rule of justice, equity and fairplay we 
direct that the property in question should be put to open auction and 
out of the sale proceeds the appellants should be returned the amount 
paid by them to the decree holder (or any further amount if deposited in the court 
after satisfying the decree) along with 10 percent yearly profit (note:- not on 
compound basis) as compensation on such amount; besides the appellants 
should be refunded the amount of utility bills paid by them (subject to 
Civil Appeal No.280-L/2009 
 
- 25 -
proof) along with the profit at the rate mentioned above and the balance 
amount should be given to the judgment debtor/respondent No.3. Both 
the parties may participate in the auction. 
 
 
Chief Justice 
 
 
Judge 
 
 
Judge 
 
 
Judge 
 
 
Judge 
Announced in open Court  
on 29.9.2016 at Islamabad 
 
 
 
 
Approved For Reporting 
Ghulam Raza/*  
 
 
 
 
 
 
 
 
Judge 
  
