MIAN HAMID FAROOQ, J.--Muslim Commercial Bank, through the filing of the present appeal, under section 21 of the Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act.
1997. (hereinafter referred to as Act XV of 1997). has called in question order dated 27-2-1999, whereby the learned Judge Banking Court dismissed its execution petition.
2. Instant appeal is admittedly. barred by time as such the appellants have filed the application (C.M. No.1-C of 1999) for condonation of delay. The only ground urged In the said application is that the delay in filing the appeal is bona fide and due to the reason that the office did not inform the appellant or its learned counsel about the objections raised by it.
3. Firstly. the aforenoted application for condonation of delay is adverted to. Learned counsel for the appellants, in support of the said application, has reiterated the contents of the application to submit that there is sufficient cause for condonation of delay in filing the appeal. Wheri the learned counsel for the appellant was asked to show as to how section 5 of the Limitation Act is applicable under the present set of circumstances replied that the appellant bank was not negligent, therefore, the delay may be condoned.
4. In the above perspective, to our mind, the prime question, which has arisen for determination by this Court is as to whether section 5 of the Limitation Act is applicable in the present case. Section 29 of the Limitation Act provides that where in a special or local law different periods of limitation have been prescribed, the provisions of section 5 of the Limitation Act are not applicable. It may be noted leave that under the ordinary law, a period of 90 days has been prescribed for filing the first appeal, under Article 156 of the Limitation Act, before this Court, while the present case is governed by Act XV of 1997, which is a special law and section 21(1) of the aforesaid Act provides a period of 30 days for filing first appeal, before this Court, against the final order passed by the Judge Banking Court.
5. From the above it is, thus, clear that special law has provided different period of limitation, for filing the first appeal in this Court than the ordinary law, therefore, section 5 of the Limitation Act is neither applicable nor attracted in the present set of circumstances, as per law laid down in the cases of Allah Ditta v. Farooq Ahmad and 3 others PLD 1979 Lahore 917; Bashir Ahmad and another v. Messrs Habib Bank Ltd. 1990 CLC 1105; Messrs Conoco Industries (Pvt.) Ltd. and 3 others v. United Bank Limited, Lahore and another 2004 CLD 472 and Sheikh Muhammad Kashif v. Askari Leasing Limited through Manager/Chief Executive of Branch/Recovery Officer 2004 CLD 1645 and by the Honourable Supreme Court of Pakistan in the reported cases of All Muhammad and another v.
Fatal Hussain and others 1983 SCMR 1239 and Allah Dino and another v. Muhammad Shah and others 2001 SCMR 286. Being guided by the aforesaid law declared, the application in hand, which has been filed under section 5 of the Limitation Act is misconceived, incompetent and not maintainable. Needless to add that the contentions raised by the learned counsel in this regard are devoid of merits in view of the law declared by the Honourable Supreme Court of Pakistan, which as per Article 189 of the Constitution of the Islamic Republic of Pakistan is binding upon all the Courts.
6. Even if it be taken that the appeal in hand is within time, the appellants have got no case on merits. Admittedly, the appellant bank filed the execution application, as far back as, on 26-2-1983, but despite best efforts undertaken by the Banking Court, the same could not be executed on account of acts and omissions on the part of the appellant bank and its functionaries. It is evident from the record that when the Banking Court tried to execute the decree through the arrest and detention of the judgment-debtors, the appellant bank failed to provide the correct address of the judgment-debtors, resultantly no notice under Order )0U, rule 37, C.P.C. could be issued to them.
Additionally, despite various reports of the bailiff of the Court that the judgments-debtors are not available at the given address, the appellant-Bank persisted that they are living on the same address inasmuch as an application was filed agitating therein that the address furnished by the appellant bank is correct. The order of the learned Judge, regarding providing of fresh address of the judgment-debtors, was also frustrated by the ,appellant bank by not providing the address of the respondents on numerous occasions as noted by the Banking Court in the impugned order.
Finally the appellant bank filed an application for demarcation of the property, which application was itself misconceived and misdirected. It is discernible from the available record that the appellant bank was disinterested in executing the decree, however, wanted to drag the matter at the cost of the public time one way or the other. It would be appropriate to reproduce relevant portion of the impugned order, which really clinches the matter and reads as under:-- Fresh mode has not been provided on 22-12-1989,1-2-1999 and 18-2-1999. Now an application has been made that the property be got demarcated, which is none of the business of this Court particularly when representative of the decree-holder has itself admitted that the property had already been purchased by Messrs Cool Industries" from the judgment-debtors who disappeared and there address is not available to the decree-holder. No further opportunity can be afforded for providing fresh mode. Likewise, prayer for demarcation of the property cannot be granted. The non-. compliance of the order entails the dismissal of execution petition and accordingly the execution petition is dismissed."
Upshot of the above discussion is that the present appeal is barred by time and devoid of merits, hence, dismissed on both the counts.