Mian Hamid Farooq, J.--Khalid Latif, the appellant/judgment debtor No, 6, through the instant appeal, has challenged order dated 2.3.2000, whereby the learned Judge Banking Court dismissed appellant's two applications.
2. Briefly stated facts of the case, as discernible from the available record, are that the then Special Judge Banking Court passed a decree; for recovery of Rs, 5,46,055/54 together with interest @ 4% per annum, against M/s. Khan Traders and 10 others, including the appellant, vide judgment and decree dated 22.6.1981. Pursuant thereto, the decree holder/respondent bank, on 11.6.1983, filed the first execution application, however, the same was dismissed. It appears from the record that the decree holder bank, instead of resurrecting the proceedings in the first execution petition, filed a fresh execution petition, on 17.4.1990, for the execution of same decree dated 22.6.1981. Thereupon the appellant filed two applications, one for stay of execution proceedings and other for dismissal of the execution petition on various grounds including the one that the petition, filed in the year 1990, for execution of iecree dated 22.6.1981, is barred by time in view of provisions of Section 48 CPC. Both the petitions were resisted by the decree holder bank and ultimately the learned Judge Banking Court, after finding that the execution petition is within time, proceeded .to dismiss both the applications, vide impugned single order dated 2.3.2000, hence the present appeal.
3. Respondent bank was proceeded ex-parte, vide order dated 18.10.2005, while on 10.4.2006, the appeal was dismissed as against Respondents Nos, 2 to 5.
4. Learned counsel for the appellant has contended that the second application, filed on 17.4.1990, for the execution of the decree dated 22.6.1981, is barred by time in view of provision of Section 48 CPC, therefore, the impugned order is not sustainable and the execution petition deserves to be dismissed. He has relied upon K.M. Munir and 2 others vs. National Bank of Pakistan and others (1999 CLC 555).
5. We have heard the learned counsel and examined the summoned record. Admittedly, Bank's suit for recovery was decreed on 22.6.1981, the decree holder bank filed the "first execution application" on 11.6.1983, which was dismissed on 2.9.1989 due to non-furnishing of "Fard Talika", and the "Second execution application" was submitted on 17.4.1990 for the execution of the same decree. According to the stance of the decree holder, as incorporated in the impugned order, as the "first execution application" was filed on 11.6.1983 and was within time, therefore "second execution application" filed on 17.4.1990, is also within time. It appears appropriate to reproduce portion of the impugned order, which reads as follows:- "Counsel for the respondent has vehemently denied this fact and has pleaded that the first execution petition was filed on 11.6.1983 and was within time which has compelled the decree holder/respondent to file the present execution petition on 17.4.1990 and even otherwise, it is admitted by the petitioner judgment debtor that the present execution petition was filed as the year 1990."
6. As noted above, the "first execution application" was filed on 11.6.1983 for execution of the decree dated 22.6.1981, which was dismissed and subsequently, the decree holder filed a "fresh execution application", on 17.4.1990, for execution of the same decree. It is well settled law by now that "first execution application" would be governed by residue Article 181 of the Limitation Act, which provides a period of three years and the rest of the applications, made thereafter, would be governed by the period of 6 years as prescribed by Section 48 CPC. Joint reading of Article 181 of the Limitation Act and Section 48 CPC would show that the inner limit for filing execution application is three years (Refer to Article 181 of the Limitation Act), while the outer limit for filing execution petition is prescribed by Section 48 CPC i,e, 6 years. It flows from the above that if no execution application is filed within a period of 3 years, from the date of decree, the first execution application filed after the expiry of 3 years would obviously be barred by time. In such an eventuality, while filing the "first execution petition" the decree holder cannot avail the benefit of the extended period provided by Section 48 C.P.C. However, if the first execution application was filed within a period of three years and the same was dismissed due to any reasons, thereafter a decree holder is permitted to file any number of execution applications within a period of six years and any such application filed beyond a period of six years would be barred by time. If any case law is needed, judgments reported as Mahboob Khan vs. Hassan Khan Durrani (PLD 1990 S.C. 778) and National Bank of Pakistan vs. Mian Aziz ud Din and 7 others (1996 SCM R 759) can be referred.
7. In this case, although the "first execution application" was filed within a period of three years from the date of the decree, yet the second/fresh application, submitted on 17.4.1990, for the execution of the same decree dated 22.6.1981 was clearly barred by time. Under the facts of the present case, when the "first execution petition" was filed within time, any number of subsequent execution applications could have been filed uptil 21.6.1987, thus, the fresh execution petition, filed on 17.4.1990, was out of time.
8. In the above backdrop, we have examined the impugned order and find that the learned Judge Banking Court, while holding that the "second execution petition" filed on 17.4.1990 is within time, has committed grave illegality inasmuch as the law declared by the Hon'ble Supreme Court of Pakistan has completely been ignored. Thus we are constrained to reverse the impugned order.
9. Upshot of the above discussion is that the present appeal is allowed, the impugned order dated 2.3.2000 is set aside and the execution petition filed by the decree holder bank stands dismissed qua the appellant. No order as to costs.