Facts of the case necessary for the disposal of the instant appeal, are that the appellant filed a suit for recovery of Rs. 13,25,932/- against the respondents in the Banking Court-IV, Lahore. The respondent contested the suit through filing within the stipulated period, the petition for leave to defend the suit. Learned Banking Court considering that availing of the loan facility was not categorically denied, dismissed the application for leave to defend the suit and decreed the suit on 27.11.1997, as prayed for in the plaint. The appellant filed the execution petition No. 2Q1/E/2003 on 18.10.2003, seeking the-execution of the decree through attachment and sale of the property of the judgment-debtors.
2. Judgment-debtors filed objection petition on 18.11.2003, praying therein for the dismissal of the execution petition, being barred by limitation. Appellant contested the objection petition. Learned Executing Court, after hearing the parties, vide order dated 13.09.2005 dismissed the execution petition. Hence this appeal.
3. Learned counsel for the appellant has contended that the decree was passed under the provisions of Banking Companies (Recovery of Loans, Advances, Credits, and Finances) Act, 1997 (now repealed). The provisions thereof do not provide for any period of limitation, for filing the execution petition. Section 22(2) makes the provisions of Limitation Act, 1908 (Act IX of 1908) applicable to all cases instituted or filed in the Banking Court, after coming into force of the Act.
Learned counsel laid emphasis that the phraseology used in the Section 22 (ibid) is "all cases instituted or filed in the Banking Court", which means that the provisions of Limitation Act, are made applicable only to the suits and not to the execution petition, lt was further argued that according to provisions of Section 24(2) of Financial Institutions (Recovery of Finances) Ordinance, 2001, the execution application can be entertained on showing the sufficient cause. He then submitted that the execution application could not be filed earlier as the detail of the property of the judgment- debtors came to the knowledge of the appellant subsequently. The application for execution of the decree was filed soon on getting the knowledge of the properties, without any delay.
4. Heard learned counsel for the appellant and examined the record.
5. Learned Banking Court passed the decree on 27.11.1997 wherein the decretal amount was ordered to be recovered from the assets, properties and persons of the defendants. The justification for filing the execution petition at a belated stage was attributed to the non-availability of Information, as to the assets and properties of the judgment- debtors. The justification is of no avail to the appellant as the Trial Court has ordered the execution of the decree from the persons of the judgment-debtors besides their properties and assets. The appellant could have resorted to the execution of the decree through arrest and detention of the judgment-debtors. The arguments of the learned counsel for the appellant that law of Limitation is not applicable to the execution application, has no force, lt has been provided in Section 22(1) that provisions of the Limitation Act shall apply to suit, application or other proceedings subject to subsection (2). Term "all cases" referred in sub-section' (2) relates to any suit, application or other proceedings filed or transferred to a Banking Court, under the repealed Act. The term "all cases" is hot restricted to suits only and includes execution application as well. The period of limitation for filing the execution application is three years, under Article 181 of the Limitation Act, 1908 (IX of 1908). The Hon'ble Supreme Court in the case of "Mehboob Khan v. Hassan Durrani" (PLD 1990 SC 778), has held that first application for execution of decree would be governed by Article 181 of the Limitation Act and rest of the applications made thereafter, would be governed under Section 48, C.P.C, for which a period of six years is prescribed under Article 183 of the Limitation Act. If no application for execution of decree was made within the period of three years prescribed by Article 181, any application, made thereafter, would be barred under said article and no benefit under Section 48, C.P.C, can be availed in such cases. This view was reaffirmed by the apex court in the case of "National Bank of Pakistan v. Mian Aziz-ud-Din and 7 others" (1996 SCM R 759).
6. We do not see any infirmity or illegality in the impugned order, which learned Executing Court has passed in accordance with law, following the dictum of the judgments passed by the superior Courts. The appeal is without any force and is dismissed accordingly.
7. Before parting with this Order we cannot ignore the conduct of the bank officials, which is highly negligent and appears to be mala fide. The Bank officials have acted carelessly and in this illegal exercise, made the execution of decree in executable. Such conduct is regrettable, which requires a proper action to be taken against the delinquent bank officials. Regional Head of the Bank is directed to hold an inquiry and impose upon the guilty officials a penalty, which is permissible under the service rules. A copy of this judgment be delivered to the President of the Bank for necessary action.