' SHEIKH AZMAT SAEED, J.---Through this Execution petition, petitioner seeks the execution of decree dated 3-2-1998. Judgment-debtor No,5 objects thereto and sought dismissal of the said petition inter alia on the ground that the same is barred by limitation.
2. Counsel for the parties have been heard and the record appended with this petition perused.
3. It appears that the petitioner filed a suit for recovery against the judgment-debtors which was decreed on 3-2-1998 by this Court while exercise jurisdiction under the Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act, 1997. Contemporaneously, another creditor of judgment-debtor filed a petition before this Court in the company jurisdiction under the Companies Ordinance, 1984 seeking its winding up. Vide order dated 24-6-1998 in C.O. 75 of 1997, this Court ordered winding up of the company/judgment-debtor No,
1. It is stated in the execution petition that pursuant to aforesaid winding up of judgment-debtor No,1, decree holder/petitioner filed a claim, as a consequence whereof, payment was received which partially satisfied the decree. Present execution petition has been filed seeking execution of decree through sale of the properties of judgment-debtors other than judgment-debtor No,1.
4. While meeting the objections raised by opposite side, it is contended by the learned counsel for the petitioner that decree in question was passed under the Act of 1997 and in terms of section 18 thereof, an execution petition can be filed at any time after seven days, hence, the question of limitation does not arise in the instant case. In support of his contentions, the learned counsel relies on Muhammad Sher v. Muhammad Khan PLD 1975 Lahore 1016 and Muhammad Jalat Khan and another v. Ghulam Sarwar 1986 CLC 552.
5. Conversely, learned counsel for judgment-debtor has relied on a DB judgment of this Court reported as United Bank Ltd. Bank Square Branch Lahore v. Fateh Hayat Khan 'Tiwana and 7 others 2004 CLD 223 to contend that in view of the provisions of Article 181 of the Limitation Act, 1908 and section 48 of the C.P.C., first application for execution must necessarily be filed within three years of the decree and subsequent application(s) within six years before the Banking Court which may otherwise dismiss the execution application as being barred by limitation.
6. It is clear and obvious from the record that the decree sought to be executed was passed by this Court in the exercise of jurisdiction vested in it under Act of 1997 ibid (as the decree was passed in 1998). Section 18 of the said Act clearly stipulates that Banking Court on the written or oral application of the decree-holder shall proceed with the execution of the decree. Meaning thereby, that an overt act of the decree-holder is required for execution. By virtue of section 22 subsection
(2) of the Act of 1997, the provision of Limitation Act, 1908 are applicable to all cases instituted or filed in the Banking Court after coming into force of that Act. Accumulative reading of the aforesaid provisions of law makes it clear and obvious that decree-holder was required to make an application, (written or oral) for execution of the decree in question and the Limitation Act would apply thereto. There is no escape from the fact that such application would be governed by Article 181 of the Limitation Act of 1908 i.e , three years as has been held by this Court in its DB judgment supra. The first application for execution could have been filed by decree-holder by or before 2-2- 2001 i,e,, within three years of the decree, and thus, the right of the decree-holder to file the execution petition had lapsed during the currency of Banking Companies (Recovery of Loans)
Ordinance, 1979, prior to its repeal vide Financial Institutions (Recovery of Finances) Ordinance, 2001 on 30-8-2001. Thus, a vested right was created in favour of the judgment-debtor. There is nothing in the Ordinance, 2001 which could be pressed into service so as to extend the period of limitation.
7. For what has been discussed above, it is clear and obvious that execution petition filed in the instant case by the petitioner is barred by limitation. Hence, dismissed on this account accordingly.