Mian Hamid Farooq, J.--United Bank Limited, the appellant/decree holder, through the filing of the present appeal has called in question order dated 14.7.1994, whereby the then learned Judge Banking Court dismissed appellant's execution application being barred by limitation.
2. The appellant on 1.9.1976, filed a suit for the recovery of Rs, 42,05,177.55/-, before the Civil Courts, against the respondents, who filed the written statement and consequently issues were framed.
With the promulgation of Banking Companies (Recovery of Loans) Ordinance 1979 (hereinafter referred to as Ordinance), the suit was transferred to newly constituted Banking Courts, established under the provisions of the Ordinance by operation of law. Despite proclamation in the newspaper, the respondents failed to enter appearance before the transferee Court, therefore, the learned Special Judge Banking Court passed an ex parte decree of the aforenoted amount, against the respondents, vide judgment and decree dated 20.1.1981. Pursuant to the above, the appellant, on 27.6.1983, filed first execution application (Ex. A. No, 7-B/83) before this. Court, for the execution of judgment and decree dated 20.1.1981. During the execution proceedings, the appellant filed an application, under. Order XXI Rule 13 CPC (C.M. No, 5953-C/83), praying for the attachment and sale of certain properties, however, the said application was withdrawn by the learned counsel for the appellant on 23.11.1983. It appears from the record that during the pendency of the said execution application, the appellant, on 16.1.1989, filed another execution application. which was separately numbered as Ex. A. No, 1-B/89. When the earlier instituted execution application (Ex. A. No, 7-B/83) was listed for hearing on 7.2.1989, the same was consigned to record on the statement of the learned counsel for the decree holder on the ground that a fresh execution application has been filed. In the latter execution application (Ex. A. No, 1-B/89), it was mentioned that previous application for execution of the same decree was moved and numbered as 7-B/89. Record shows that in the earlier instituted execution application (Ex. A. No, 7-B/83) on proceedings were undertaken during the period ranging from 23.11.1983 to 7.2.1989. During the execution process, property situated at Sargodha was auctioned and the report was submitted by the Court Auctioneers. Appellant's application (C.M. No, 116/B/92), for the amendment of the execution application, so as to implead Mst. Shahzadi, daughter of late Khizer Hayat Khan Tiwana, as one of the judgment debtors, was allowed by this Court on 16.12.1992, it was permitted to file the amended execution application and in obedience thereto, the appellant, on 23.12.1992, filed the amended 'execution petition. The respondents, on 26.1.1994, filed an objection petition, inter alia pleading that as the' execution petition is barred by time, therefore, the same be dismissed. The said application was resisted by the appellant through filing the reply. As a result of amendment in the Ordinance in respect of pecuniary jurisdiction of Banking Courts, the execution proceedings were transferred from this Court to the learned Special Judge Banking who, after finding that the latest execution application (Ex. A. No, 1-B/89) was a fresh application for the execution of the decree and as the same has been filed after eight years of the passing of the decree, therefore, the same is barred by time, proceeded to dismiss appellant's execution petition, vide impugned order dated 14.7.1994, hence the present appeal.
3. As none entered appearance to represent the respondents, therefore, they were proceeded ex parte by this Court on 15.9.2003.
4. The learned counsel for the appellant, while relying upon Mahboob Khan Vs. Hassan Khan Durrani (PLD 1990 SC 778), has contended that the execution application, filed by the appellant, on 16.1.1989, was, in fact, in substitution of the earlier application (C.M. No,. 5953 of 83) and it was neither a new nor another application, therefore, the question of limitation does not arise, He has further submitted that although the earlier execution application (Ex.A. No, 7-B of 83) was consigned to record, yet the same remained alive, as it was not disposed of. He has concluded his arguments by submitting that in any case the execution application was not barred by time and the impugned order suffers from legal errors.
5. It flows from the above narrative that the decree under execution was passed on 20.1.1981, first execution application (Ex. A. No, 7-B/89) was filed on 27.6.83 subsequent execution application (Ex.A. No, 1-B/89) for the execution of the same decree i,e, dated 20.1.1981, was instituted on 16.1.1989 and the first execution application was consigned to record on 7.2.1989 at the request and the statement of the learned counsel for the decree holder.
6. So far as, the first contention of the learned counsel that subsequent execution application was in continuation of application (C.M. No, 5953 of 83) is without any substance. The said application was filed by the decree holder, under Order XXI Rule 13 CPC, with the prayer that "the property detailed and described in the schedule be ordered to be attached for subsequent auction for the satisfaction of the decree." This application was withdrawn by the appellant on 23.11.1983, so as to file an appropriate application. It is evident from the record that the appellant did not file any "appropriate application" for more than five years till the time it, on 16.1.1989, filed another execution application, which was separately numbered as Ex. A. No, 1-B/89. It is pertinent to mention here that the latest execution application was filed under the provision of Order XXI Rule 11 CPC read with Section 8(3) of Ordinance, which provisions of law, undoubtedly, deal with the filing of the application for the execution of decrees. Upon the examination of the contents of the said execution application, it amply manifests that the same meticulously fulfills the requirements of Order XXI Rule 11 (2) CPC, wherein, in Column No, 4, it has been mentioned "That the previous application for execution of the decree was moved in this Hon'bla Court and was numbered as 7- B/83." However, it was erroneously narrated in Column No, 5 "That the said application came up for hearing before his Lordship Mr. Justice Mehboob Ahmed, who was pleased to allow the plaintiff/decree holder to withdraw that application and make an appropriate application, after seeking instructions from the plaintiff holder." While in fact, at the time of the filing of the second application, the previous/first execution application was pending. It is evident from the record that the appellant, on 23.11.1983, withdrew its application filed under Order XXI Rule 13 CPC, for the attachment of the property, and not the main execution application, which was subsequently consigned to record, on 7.2.1989 at the specific request of the learned counsel for the appellant on the ground that the Bank has filed the fresh execution application. To our mind, the Bank was conscious that it is filing a "fresh" execution application, which was barred under Article 181 of Limitation Act and even under Section 48 CPC and therefore to cover up said legal infirmity and to made the execution application within the limitation period, the concerned functionaries of the Bank even took the risk of making mis-statement by saying that this Court allowed the Bank to withdraw the execution application to file fresh one, which, as noted above, was contrary to the record. Even if, without conceding, the said permission was granted to the appellant, that of course would be subject to law of limitation, as it is settled law that even a Court could not enlarge or extend the period of limitation, which is statutorily fixed. As elaborated above, the Bank for all intents and purposes filed a "fresh" execution application, on 16.1.1989, thereby complying with the requirements of. Order XXI Rule 11 (2) CPC, therefore, it cannot be legitimately argued that the subsequent application was in continuation of the previous application (C.M. No, 5953 of 83), therefore, the same is within time. On the face of it, the second execution application and aforenoted misc. application have no similarities, on the basis of which it can be urged that another execution application was a follow up measure of the misc. application. Needless to add that the subsequent execution application cannot be equated with the aforesaid misc. application, which was only for the attachment of the property, as the two applications have different dimensions.
6A. Adverting to the next contention of the learned counsel that the first execution application was not disposed of. Suffice it to say that the same was consigned to record on the specific statement the learned counsel for the decree holder. For facility of reference, order dated 7.2.1989 passed in execution application (Ex.A. No, 7-B/83) is reproduced below:- "Mr. Ayyaz Hassan, Adv. for the decree holder. States that the decree holder-Bank has filed a fresh execution application giving all the details of the properties sought to be attached and sold in execution of the decree and therefore this Ex: Application may be consigned to record. Order accordingly." It is to be noted that when the appellant filed the subsequent execution application, on 16.1.1989, it was separately numbered and therefore all the proceedings were undertaken in the subsequent execution application without any objection from the appellant, inasmuch as all the applications, even filed by the appellant, were instituted in the said fresh execution application. As appears from the above reproduction, even according to the appellant, it has filed a "fresh" execution application.
If the said application was not disposed of, as canvassed by the learned counsel, there was no occasion to file fresh execution application, as has been done by the appellant giving all the details of fresh execution application.
7. Now coming to the other limb of the argument that subsequent execution application was not a "fresh application." The appellant filed the amended execution application on 23.12.1992, of course, under orders dated 16.12.1992, passed by .the learned Executing Court. In the said amended execution application although the Bank was allowed to only correct the name of one of the judgment debtors, yet it made certain unauthorized amendments in the amended execution application, which aspect need not be dilated upon at this stage. However, significantly, the appellant, in Column No, f of the amended execution application, has unequivocally admitted that the previous execution application was withdrawn by the Bank for filing. "fresh application". For ready reference the said portion is reproduced below:
(f) Whether any, and (if any) what previous applications have been made for the execution of the decree the dates of such applications and their results,Application No, 7-B of 1983, withdrawn for filing fresh application with the leave of the Court. More importantly, the execution petition was not only signed by the two authorized officers of the Bank, but the contents of the execution application, obviously including the aforesaid portion, have also been verified on oath by them. In view of the clear admission .on the part of the Bank regarding withdrawal of previous first execution application in order to file "fresh" execution application, the contention of the learned counsel that the previous execution application was not disposed of or no fresh execution application was filed, is ill founded and misconceived.
8. Now coming to the period of limitation for filing "first" and "subsequent" or "fresh" application for the execution of the decree. Article 181 of the Limitation Act provides that an application for which no period of limitation is provided elsewhere in this schedule or by Section 48 CPC, can be filed within a period of three years when the right to sue accrues. In view of the said Article, an execution application filed after the period of three years is clearly barred by time. It is well settled by now that the first execution application would be governed by the Residuary article i,e, 181 of the Limitation Act, which provides a 'period of three years for filing the execution petition from the date of the decree and rest of the applications made thereafter will be governed by the period of six years, as prescribed by Section 48 CPC. Joint reading of Article 181 of the Limitation Act and Section 48 CPC would show that inner limitation for filing the execution application is three years, as provided by Article 181 of the Limitation Act, while the outer limitation for filing the execution petition is provided under Section 48 CPC, i,e, six years. It flows from the above that first execution application is to be filed within the period prescribed under Article 181 of the Limitation Act i,e, three years, the first execution application filed after the expiry of three years would obviously be barred by time and if the first application was filed then any number of subsequent execution applications can be filed but within a period of six years from the date of decree per force of Section 48 CPC.
While filing the first execution application the decree holder cannot avail the benefits of the extended period by Section 48 CPC. The Hon'ble Supreme Court of Pakistan, while dilating upon the interpretation of the provision of Article 181 of Limitation Act and Section 48 CPC, in a case reported as Mehboob Khan Vs. Hassan Khan Durrani (PLD 1990 SC 778), incidentally relied upon by the appellant, has held as under :- "--The effect of the amendment made by the Law Reforms Ordinance, 1971, is that the first application for the execution of the decree of a Civil Court would be governed by the residuary Article 181 prescribing a period of three years and since any subsequent or fresh application for execution would be governed by Section 48, C.P.C., it would be out of the purview of Article 181 on its express terms. In some of the Indian decisions, the expression "fresh application" has been so construed to mean application for execution after the disposal of the first execution application.
See Yadorao Wasudeorao Pathak V. Govindrao Ramji Pant AIR 1939 Nag. 245, Lekshmi Amma Kochukutty Amma and another v. Raman Pillai Kumara Pillai and others AIR 1952 Traancore-Cochin 268 and Venlappa and others V. Lakshmikant Rao AIR 1956 Hyd 7. The position that emerges from the above discussion is that, as already stated, the first application for execution of a decree would be governed by the residuary Article 181 and the rest of the applications made, thereafter, will be governed by the six years time limit prescribed by Section
48. Although the original purpose underlying Section 48, read alongwith Articles 181 and 182 of the Limitation Act, before the amendment of the law was to provide maximum limit of time for execution of a decree. But in the changed position as a result of Law Reforms Ordinance, the only effect of Section 48 would be to provide limitation for subsequent execution applications after the first one. The result would be that if no application at all is made within the period prescribed by Article 181, the execution application made, thereafter, would be barred under the said Article and as such there would be no occasion to avail of the benefits of the extended time provided by Section 48, CPC. In other words once an application for execution is made within time so prescribed, any number of applications for execution can be presented within the six years period from the date of decree. This construction, in my opinion is the only construction that can be placed on the consequent legal position arising out of the amendments made by the omission of Article 182 and substitution of six years period in Section 48, CPC otherwise the provisions for repeated applications every three years or taking steps in aid of execution provided for in Article 182, having disappeared, Section 48 would become redundant and ineffective." In another case reported as National Bank of Pakistan Vs. Mian Aziz ud Din and 7 others (1996 SCM R 759), the Hon'ble Apex Court of the Country, while replying upon the case of Mehboob Khan (supra) has approved the same principles as enunciated in the aforenoted case.
9.As noted above, according to the own showings of the appellant, after the withdrawal of the first execution application, fresh execution application was filed, therefore, now the Bank is precluded to plead that the first execution application was not disposed of.
10. In view of the above backdrop, we are of the view that the first execution application (Ex. A. No, 7-B/83) was filed by the appellant on 27.6.1983, which was within time, as the same was filed within a period of three years from the date of decree, as per Article 181 of the Limitation Act, but the same was withdrawn by the appellant on 7.2.1989 on the ground that ''fresh/subsequent" execution application was filed on 16.1.1989 and thus the first application stood disposed of. Although the first execution application, which was disposed of, as noted above, was within time, yet subsequent and fresh execution application (Ex. A. No, 1-B/89), which was filed after the expiry of eight years of the passing of the decree, was barred by time in view of Section 48 CPC. The "fresh" application was not in continuation of the misc. application, as the subsequent application for all practical purposes was for the execution of the same decree.
11.In the above perspective, we have examined the Impugned order and fined that the same is legal, unexceptionable and is not only in accordance with the record of the case but also in consonance with law on the subject, thus, we are not inclined to interfere in the impugned order, hence the same is maintained.
12.Upshot of the above discussion is that the present appeal is devoid of any merits, thus, the same stands dismissed. with no order as to costs.