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Civil Appeal No. 56 of 1979, decided on 13th November, 1985.

(On appeal from the judgment of the Lahore High Court, dated 11th July, 1979, in F. A. O. No. 274 of 1976).

------S. 39. Section 39 provides a complete Code for enforcement of claim by Industrial Development Bank in so far as form of proceed ings, relief that can be claimed, procedure for trial of issues that may arise and passing o final order with specification of appealable order‑Principal debtor failed to repay outstanding amount‑Bank invoked bank guarantee and palled upon surety bank to pay liability but said surety bank declined ‑Application by Bank advancing loan, for absolute attachment of property of principal debtor‑District Judge, finding assets of principal debtor insufficient to meet outstand ing liability ordered attachment ad interim of properties of principal debtor and surety Bank under S 39 (3) (a, and restrained principal debtor as well as surety bank from removing or in any manner trans ferring said properties‑Order being interlocutory in nature, no scope was found for stretching its meaning to give quality of a final order under S. 39 (7) (a) ‑Appeal before High Court against such order, held, was not competent and High Court had no jurisdiction to review order passed by District Judge.

Principal debtor failed to repay the outstanding amount, the Indus trial Development Rank invoked the bank guarantee and called upon surety bank to pay the liability. Such bank, however, declined to accede to the request of the industrial Development Bank. Subsequently, the Industrial .Development Bank filed an application under section 39 of the Industrial Development Bank of Pakistan Ordinance, 1961, before the District Judge, for absolute attachment of the property of the principal debtor as enumerated in Schedule appended with the application of such other property of the surety described in Schedule thereof, as may*fetch on being sold sufficient amount to clear the' outstanding liability. The District Judge on entertaining the application of the appellant ordered attachment ad interim of the properties mentioned in the aforesaid 2 Schedules in purported exercise of power under subsection (3) (a) of section 39 of the Ordinance and further restrained the principal debtor as well as the surety from removing or in any manner transferring the said properties.

The tenor of the order and its form as well as its substance, clearly indicated that the same was interlocutory in nature and there appeared no scope for stretching its meaning to give it the quality of a final order under subsection (7) or subsection (9) of section 39 to make it an appealable order. A careful‑analysis of section 39 of the Ordinance shows that it provides a complete code for the enforcement of claim by the industrial Development Bank of Pakistan, in so far as the form of proceedings, the reliefs that can be claimed, the procedure for trial of issues that may arise in the said proceedings and the passing of the final order have been pro. vided for in detail. Also the orders which are appealable have been specified.

In such a situation the law governing procedure generally in respect of a court upon which such special jurisdiction is conferred, is displaced by the special procedure provided by the special enactment conferring a new jurisdiction. Section 39 of the Ordinance provides no appeal from an order such as the one passed by the District Judge disposing of the appli cation for recall of ad interim orders of attachment. The right of appeal is the creature of the statute.

It was not obligatory on the Court to order interim attachment of "property hypothecated" by debtor and the property of the surety against which loan was advanced by the Industrial Development Bank. In other words the District Judge was under a legal obligation to order attachment of all the properties that were hypothecated as well as the property of surety on the security of which the loan was advanced irrespective of its value.

Held, the appeal before the High Court was not competent and the High Court had no jurisdiction to review the order passed by the District Judge.

‑‑‑ Statute creating a new duty or imposing a new liability and pres cribing a specific remedy in case of neglect to perform duty or discharge liability, rule of interpretation of such statute, held, would be that no remedy could be taken but particular remedy pres cribed by statute itself.

Craies on Statute Law 7th Edn., @ p. 247 quoted.

Where an Act creates an obligation and enforces performance in specific manner, general rule, held, would be that performance could not be enforced in any other manner.

Doe D. Bishop of Rochester v. Bridges (1831) 1 B. & Ad. 847, quoted.

Right created by statute‑Action, held, would not be for infringe ment of a right created by statute, where another specific remedy for infringement was provided by same statute.

Stevens v. Jeacocke (1848) 11 Q B 731 quoted.

------Rule of construction‑Where Legislature had passed a new statute giving anew remedy, such remedy, held, would be the only one which could be pursued.

R. v. County Court judge of Essex (1887) 18 Q B D 704 quoted.

‑‑ Ss. 39 (1) (a) & 3 (a)‑Nature of relief that could be sought by Bank in petition under S. 39 (1) (a)‑Ad interim attachment‑Requirements.

While laying down the nature of relief that can be sought by the Bank in the main petition, section 39 (1) (a) provides for an order for the sale of property, pledged, mortgaged, hypothecated for assigned to the bank as security for the loan and any other properties, of the industrial‑concern or the properties of persons liable for the repayment of the loan including guarantor. Subsection (3) of the said sect'‑on provides that in case of an application for such relief the District Judge shall "pass an order ad interim attaching such properties referred to in clause (a) of subsection (1), as are likely in. the estimation of the Court to fetch, on being sold an amount equivalent to the sum claimed by the bank together with the costs of the proceedings taken under this action". The requirement of making an estimation with a view to extend the ad interim attachment to only such properties the sale‑proceeds of which are likely to meet the claim of bank together with cost, extends to not only other properties of the industrial concern and persons liable for the repayment of the loan, but also to the property on the security of which the loan was advanced. Therefore the foundation of the jurisdiction to order interim attachment of the property is clearly based upon an estimation of the nature laid down in subsection (3) (a) of section 39. In other words, it may be possible that in a case in which the remaining balance of the loan which is sought to be recovered is far less in value than the estimated amount of sale‑proceeds of properties upon which security is created, the Court will not be justified in mechani cally ordering the attachment of such property to its entirety.

Sardar Sami Hayat, Advocate Supreme Court and Tanvir Ahmad, Advocate‑on‑Record for Appellant.

M. Mohsin Ansari, Advocate Supreme Court, Ch. Muhammad Aslam, Advocate‑on‑Record and Malik Muhammad Qayum, Dy. A,‑G. for Respo ndent No. 1.

Date of hearing : 13th November, 1985.

This is a direct appeal by the Industrial Development Bank of Pakistan against order, dated 11^th July, 1979, by a learned Single Judge of the Lahore High Court, accepting the appeal filed by respondent No. 1, under section 39 of the Industrial Development Bank of Pakistan Ordinance, 1961 (hereinafter referred to as Ordinance).

2. There is an objection that the appeal has been filed with a delay of 30 days and is, therefore, barred by time. On behalf of the respondent reliance has been placed on rule 2 of Order XII' of the Supreme Court Rules, 1980, which prescribes a period of 30 days from the date of impugn ed judgment, decree or final order of the High Court for a direct appeal to this Court. It was submitted that the present appeal was presented in this Court with a delay of 30 days from the expiry of the prescribed period. We, however, found that the present appeal was filed on 1st October, 1979, much before the coming into force of the rules of this Court of 1980 and was, therefore, governed by the previous rules of 1956. Rule 6‑B of Order XII of the Pakistan Supreme Court Rules, 1956, reads as under :‑

"The petition of appeal shall be presented within thirty days from the date of the grant of the certificate by the High Court:

Provided that the Court may for sufficient cause extend the time."

It will be observed that this rule deals with an appeal under Article 58 (2) (a) of the Constitution of 1962, under which appeal could be directly filed in this Court by virtue of certificate of fitness issued by the High Court.

Analogous provision exists in the present Constitution under Article 185 (2) (f). However, clauses (d) and (e) of the same sub‑Article now provide for a direct appeal without such certificate of the High Court in cases involving subject‑matter in dispute the amount or value of which is not less than Rs. 50,000 if other conditions prescribed therein are satisfied. The present appeal has been filed under the aforementioned clauses of the pre sent Constitution without a certificate of the High Court. We find no period of limitation prescribed for such appeal in the 1956 Rules. When this position was confronted to the learned counsel for the respondent he abandoned the objection as to limitation. This appeal is, therefore, within time and has to be disposed of on merits.

3. The facts are that the Industrial Development Bank of Pakistan, appellant herein, sanctioned a loan in favour of Abdul Marian Omer, res pondent No. 2, in foreign exchange equivalent to Rs. 1,69,000 at the pre‑devaluation rate, for the import of machinery for setting up a printing press. There was a subsequent increase in the loan amount, which was availed of and the machinery in question was imported: The credit facility extended to respondent No. 2 was secured by hypothecation of the impor ted machinery in favour of the appellant‑bank. Additionally the Austra lasia Bank now merged in the Allied Bank of Pakistan Limited, respondent No. 1, also furnished a continuing bank guarantee in favour of the appel lant, to secure the loan. It seems dispute arose between the principal debtor and the appellant as to the terms of the credit agreement and also as the latter committed default in the repayment of the loan in terms of the repayment schedule, the appellant called for repayment of the outstanding amount against respondent No. 2 which was worked out at Rs. 12,31,984.04 including the principal and interest as on 31st March, 1976. As the principal debtor failed to repay the outstanding amount, the appellant invoked the bank‑guarantee and called upon respondent No. 1 Bank to pay the liabi lity. Respondent No. 1 Bank, however, declined to accede to the request of the appellant Subsequently, on 4th June, 1976, the appellant filed an applica tion under section 39 of the Industrial Development Bank of Pakistan Ordi nance, 1961, before the learned District Judge, Lahore, for absolute attach ment of the property of the principal debtor as enumerated in Schedule 11 appended with the application of such other property of the surety describ ed in Schedule IV thereof, as may fetch on being sold sufficient amount to clear the outstanding liability. The learned District Judge on entertaining the application of the appellant ordered attachment ad interim of the properties mentioned in the aforesaid 2 Schedules in purported exercise of power under subsection (3) (a) of section 39 of the Ordinance and further restrained the principal debtor as well as the surety from removing or in any manner transferring the said properties.

4. It may be mentioned that the property detailed in Schedule IV which was brought under attachment was the entire cash and other valu able securities lying in respondent No. 1 bank's branch at Bank Square, Lahore, together with furniture, carpets, cars, air conditioners and other articles owned by the said bank. It is stated that the writ of attachment was resisted and its execution could not take place. However, respondent No. 1 appeared before the learned District Judge and made an application for recall of the order, dated 1st June, 1976, whereby attachment ad interim was issued. The main plea raised by respondent No. 1 was that the pro ceedings could be initiated against it in its rapacity ac a surety only if the assets of the principal debtors were found to be insufficient to meet the outstanding liability.

5. The learned District Judge repelled the plea of respondent No. 1 and held that the order, dated 1st June, 1976, was ad interim in nature which did not finally determine the liability of the respondent, with the result that it will be open to respondent No. 1 to raise any pleas in its defence during the proceedings for confirmation of the ad interim order and the passing of the final order. Accordingly the application for recall of the order for interim attachment of the property was dismissed and execution of the said order was directed with police aid, vide order, dated 13th December, 1976.

6. Feeling aggrieved by the aforesaid order, respondent No. 1 filed an appeal under section 39 of the Ordinance before the Lahore High Court, Lahore. At the hearing of this appeal the present appellant raised a preliminary objection as to the competency of the appeal under section 39 of the Ordinance. It was urged that the main application before the learned District Judge was made under clauses (a) and (c) of section 39 and the learned Judge had passed an ad interim order attaching the property of the respondents before him in exercise of power vesting in him under subsection (3) of section 39, which order was not appealable and that appeal only lay under section 39(11) against an order passed under sub section (7) or subsection (9) of section 39.

7. Learned Judge in the High Court rejected the preliminary objec tion and held that the impugned order before him refusing to recall the attachment ad interim of the properties of respondent No. I was an order, for all intents and purposes, under subsection (7) of section 39 and was, therefore, appealable by virtue of subsection (11) of the said section. Additionally on the merits of the controversy the learned Judge held, on interpretation of subsection (3) of section 39, that the power of the District Judge to order ad interim attachment of the properties other than those pledged, mortgaged, hypotheticated or assigned to the bank as security for the loan, extended to such property only to the extent as in the estimation of the Court would fetch, on being sold an amount equivalent to the sum claimed by the bank together with costs of proceedings taken under the section. In other words the view taken by the learned Judge was that the power to attach the other properties of the principal debtor as well as of the surety is limited to the extent, in accordance with the estimation of the Court, of the shortfall between the amount claimed by the petitioning Bank and the value of the likely sale proceeds of the encumbered property. In the premises since the learned District Judge's order was found completely silent on this aspect of the matter, the learned Judge held that the attachment of the property of the surety was unsustainable in law. On these findings the learned Single Judge of the High Court by his order, dated 11th July, 1979, accepted the appeal, set aside the order of the District Judge and remanded the case to him for fresh decision in accordance with law.

8. Being aggrieved the Industrial Development Bank of Pakistan, the appellant herein has filed the present appeal against the aforesaid order of the High Court.

9. It has been contended by the learned counsel for the appellant that the learned Judge in the High Court has misconstrued the import of section 39 of the Ordinance; in holding that the appeal filed by respon dent No. 1 in the High Court was competent. He submitted that the order of ad interim attachment contemplated by section 39 (3) is no under subsection (11) of section 39 and the order passed by the learned District Judge on the application of respondent No. 1 for the recall of the order of interim attachment cannot by any stretch be appropriated to subsection (7) of section 39.

10. Learned counsel for respondent No. 1, on the other hand, in his argument sought to support the view taken by the learned Single Judge and contended that the appeal was competent. However, Malik Abdul Qayum, Deputy Attorney‑General, who appeared on notice to assist the Court supported the contention of the appellant that the appeal did not lie.

11. The reasons that prevailed with the learned Single Judge to hold that the appeal was competent are mentioned in the following passage of the impugned judgment:

"It is noteworthy that the learned District Judge did not issue any notice to the appellant but as observed above, the appellant, himself put in appearance in the Court and applied for recall of the order ad interim. The disposal of this application shall be deemed to have been made under subsection (7). It is correct that while acting under this subsection the District Judge has to make the order ad interim absolute and direct the sale of the attached property but no such direction has been given under the impugned order ; never the less it has the effect of making the order ad interim absolute. The right of appeal is referable to the source of exercise of power and not to the incorrect exercise of such power. It may be observed, if the reply to the show‑cause notice is frivolous or other wise untenable: the District Judge may reject it summarily and will not be bound to embark upon investigation of the claim of the Bank. Such summary rejection, will. tantamount to non‑showing of cause in contemplation of subsection (7). There is no provision for dis posal of the appellants application and it shall be deemed to have been dealt with either under subsection (7) or subsection (9) read with subsection (8) ; although the impugned order is deficient in contents both with regard to subsection (8) as well as subsection (7). The impugned order is thus appealable under subsection (11) of section 39."

12. Thus, it will be seen that the learned Judge was of the view that the order impugned before him on the application of respondent No. 1 for recall of the order for interim attachment be deemed to have been passed under subsection (7) of section 39. We are unable to agree with this view with all respect to the learned Judge. In the first place we might refer to the express terms in which the order of the learned District Judge, dated 13^th December, 1976, was couched which excludes the possi bility of holding that the order was a final older under subsection (7). The assumption that no notice was issued to respondent No. 1 also does not seem to be correct on the record placed before us. Apparently respondent No. 1 was impleaded as a party in the main petition filed by the appellant under section 39 before the District Judge. The learned District Judge on the main application passed the following orders:---

"Petition be registered. Notice to the respondents for 22nd instant with copies of the petition.

Subject to all just exceptions, I also order attachment ad interim of the property detail in Schedules 2 and 4. In terms of subsection (3) of section 39, Industrial Banks Ordinance, the respondents are also restrained from removing or transferring in any manner the above said properties."

The reading of the order passed by the learned District Judge on the application of respondent No. 1 makes it quite clear that he did not pro ceed on the basis that no cause was shown pursuant to the notice issued under subsection (6) but he obviously intended to dispose of miscellaneous application of the said respondent for recall of the order of attachment. The following unambiguous observations leave no manner of doubt that final order as contemplated by subsection (8) of section 39 was deferred to be passed at a later date :‑

"As I comprehend the provisions in subsection (3) of section 39 do not leave any option with the Court in the matter of attachment ad interim of property hypothecated by debtor and the property of the surety against which loan was advanced by the petitioner‑bank It may, however, be made clear that the order under subsection (3) is an interim order securing payment of money which the petitioner bank may be eventually found entitled to. Order of attachment .ad interim does in no way foreclose the liability of the debtor and that of the surety. This order, therefore, shall not be interpreted to have decided finally the further question whether or not the property of the respondent‑company which has already been placed under attachment shall be first utilized for sale for the purposes of repay ment of the loan."

13. The tenor of the order and its form as well as its substance, therefore, clearly indicate that the same was interlocutory in nature and there appears to us no scope for stretching its meaning to give it the qua lity of a final order under subsection (7) or subsection (9) of section 39 to make it an appealable order. A careful analysis of section 39 of the Ordi nance shows that it provides a complete code for the enforcement of claim by the Industrial Development Bank of Pakistan, in so far as the form of proceedings, the reliefs that can be claimed, the procedure for trial of issues that may arise in the said proceedings and the passing of the final order have been provided for in detail. Also the orders which are appeal able have been specified, namely, orders passed under subsection (7) and subsection (9). These subsections read as under :‑

"(7) If no cause is shown on or before the date specified in the notice under subsection (4) or subsection (6), the District Judge shall forthwith make the order ad interim absolute and direct the sale of the attached property or transfer the management of the concern to the Bank or confirm the injunction."

"(9) On completing an investigation under subsection (8) the District Judge shall pass an order‑

(a) confirming the order of attachment or directing the sale of the attached property, or

(b) varying the order of attachment so as to release a portion of the property from attachment and directing the sale of the remainder of the attached property, or

(c) releasing the property from attachment, if he is satisfied that it is not necessary in the interest of the Bank to retain it under attach ment, or

(d) confirming or vacating the injunction, or

(e) transferring or refusing to transfer the management of the concern to the Bank ;

Provided ... ... ... ... ... ... ... ... ... ... ... ... ...

Provided... ... ... ... ... ... ... ... ... ... ... ... ...".

It is well‑settled that in such a situation the law governing procedure generally in respect of a Court upon which such special jurisdiction is con ferred, is displaced by the special procedure provided by the special enact ment conferring a new jurisdiction. Section 39 of the Ordinance provides c no appeal from an order such as the one passed by the District Judge disposing of the application for recall of ad interim orders of attachment. It is also well‑established that the right of appeal is the creature of the statute. Craies on Statute Law 7th Edn., at p. 247, states the rule of inter pretation as follows :‑‑

"If a statute creates a new duty or imposes a new liability. and pres cribes a specific remedy in case of neglect to perform the duty or discharge the liability, the general rule is "that no remedy can be taken but the particular remedy prescribed by the statute. "Where an Act creates an obligation," said the Court in Doe D. Bishop of Rochester v. Bridges (1831) 1 B. & Ad. 847, 859, and enforcas performance in a specific manner, we take it to be a general rule that performance cannot be enforced in any other manner. And in Stevens v. Jeacocke (1848) 11 Q. B. 731, 741, the Court said. It is a rule of law that an action will not lie for the infringement of a right created by statute where another specific remedy for infringement is provided by the same statute." And in R. v. Count Court Judge of Essex (1887) 18 Q. B. D. 704, 707, Lord Esher M. R. said :" The ordinary rule of construction applies to this case, that where the Legislature has passed a new statute giving a new remedy, that remedy is the only one which can be pursued."

Exhypothesi, therefore, the appeal before the High Court was not competent and the High Court had no jurisdiction to review the order passed by the District Judge.

14. It may, however, be observed that the learned District Judge misconstrued the provisions of subsection (3) of section 39 in holding that it was not obligatory on the Court to order interim attachment of "pro perty hypothecated by debtor and the property of the surety against which loan was advanced by the petitioner‑Bank". In other words the learned District Judge appears to have taken the view that he was under a legal obligation to order attachment of all the properties that were hypothecated as well as the property of surety on the security of which the loan was advanced irrespective of its value. The learned Judge in the High Court disagreed with this view and observed:

"While attaching the property of the debtor and the surety, other than the one mentioned in clause (a) of subsection (3), there is, however, a rider on the powers of the District Judge, that he must satisfy himself that out of the "other property" only so much is attached, as on being sold, is likely to fetch an amount equivalent to the liability of the debtor. The attachment of one's property is a coercive measure which has to be resorted to only when essential. The District Judge's order ad interim, in respect of the "other pro perty" must disclose that he through an estimation of the value of the property has found it incumbent to proceed against so much of the "other property". By the process of reasoning it follows, if the borrower's property pledged, mortgaged, hypothecated or assigned to the creditor Bank, is sufficient to meet his liability, possibily, the proceedings for attachment of the surety's property cannot be initiated."

15. Now while laying down the nature of relief that can be sought by the Bank in the main petition, section 39 (1) (a) provides for an bide for the sale of property, pledged, mortgaged, hypothecated or assigned to the bank as security for the loan and any other properties, of the industrial concern or the properties of persons liable for the repayment of the loan including guarantor. Subsection (3) of the said section provides that in case of an application for such relief the District Judge shall "pass an order ad interim attaching such properties referred to in clause (a) of subsection (1), as are likely in the estimation of the Court to fetch, on being sold an amount equivalent to the sum claimed by the bank together with the costs of the proceedings taken under this action". While, therefore, generally agreeing with the interpretation of the learned Judge in the High Court of these provisions, we might point out that the requirement of making and estimation with a view to extend the ad interim attachment to only such properties the sale‑proceeds of which are likely to meet the claim of bank together with costs, extends to not only other properties of the industrial concern and persons liable for the repayment of the loan, but also to the property on the security of which the loan was advanced. Therefore the foundation of the jurisdiction to order interim attachment of the property is clearly based upon an estimation of the nature laid down in subsection (3) (a) of section 39. In other words, it may be possible that in a case in which the remaining balance of the loan which is sought to be recovered is fat less in value than the estimated amount of sale‑proceeds of properties upon which security is created, the Court will not be justified in mechani cally ordering the attachment of such property to its entirety.

16. As we have found that the appeal filed by respondent No. 1 was not competent in law, the impugned judgment of the High Court is liable to be set aside. Accordingly we allow the present appeal with costs. Tile result is that the order of the learned District Judge is restored and he will now proceed in accordance with law for the final disposal of the appli cation under section 39 of the Ordinance.

M. B. A. Appeal allowed.

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