' This is an Execution First Appeal filed under section 22 of the Financial Institutions (Recovery of Finances) Ordinance, 2001 ("the Ordinance"), for setting aside the order dated 1-6-2006 passed by the learned Judge Banking Court No,1, Gujranwala ("the Executing Court"), whereby the objection petition of respondent No,2 filed under section 19 of the Ordinance was accepted and the sale of the mortgaged property was set aside in the execution proceedings filed by the appellant in pursuance of the judgment and decree dated 12-12-1993 passed in its favour and against respondent No,1 by the learned Banking Tribunal, Lahore.
2. At the outset, the learned counsel appearing on behalf of respondent No,2 has called into question the maintainability of the appeal by inter alia submitting that it is barred by time and the appellant cannot seek condonation of delay by invoking the provisions of section 5 of the Limitation Act, 1908 ("The Act"), as the appeal has been filed under the Ordinance, which is a special law and the provisions of section 5 of the Act, have not been made applicable to an appeal filed under section 22 of the Ordinance. Further submits that the impugned order was passed on 1-6- 2006, the appeal was filed on 1-7-2006. The appeal was noted by the learned counsel for the appellant for 18-7-2006. The office raised certain objections and the appellant was required to remove the said objections within 3 days. The appellant removed the objections and re-filed the appeal on 24-7-2006 i,e, beyond the period of 3 days. Thereafter certain other objections were raised by the office and the appellant was given 3 days-time to remove those objections. The appeal was finally re-filed on 18-6-2007, .Which was beyond the period of the 3 days and the prescribed period of limitation. This fact has been accepted by the appellant as it has filed an application under section 5 of the Act for condonation of delay. Contends that the Ordinance is a special law and by virtue of the provisions of section 29 of the Act unless the provisions of section 5 of the Act are made applicable to appeals filed under the Ordinance, the appellant cannot involve the provisions of section 5 of the Act. The Ordinance has not made section 5 applicable to appeals filed under section 22 thereof. Hence the application for condonation of delay filed by the appellant is not maintainable. The appeal is time barred and the delay in its filing, 'therefore, cannot be condoned. Relies on "Bank of Punjab v. Punjab Labour Appellate Tribunal Lahore and 2 others" (PLD 2010 Lahore 666), "Allah Dino and another v. Muhammad Shah and others" (2001 SCMR 286), "Muhammad Anwar and others v. Mst. Iluas Bequm and others" (PLD 2013 Supreme Court 255), "Protein qnd Fats International (Pvt.) 20131Bankers Equity Limited v. Decent 1783 Industries (Pvt.)
Limited Limited through Chief Executive and 2 others v. Capital Assets Leasing Corporation Limited through Manager" (2005 CLC 857), "Messrs Khan Tractors, Alipur Road, Khan Garh District Muzaffargarh through. Proprietor and 2 others v. Habib Bank Limited, Railwaus Road Branch, Muzaffargarh through Manager" (2013 CLD 177).
3. The learned counsel for the appellant controverts the contentions of the learned counsel for respondent No,2 and submits that the appeal was filed within time. In support of his contention submits that the impugned order was passed on 1-6-2006 the appeal was filed on 1-7-2006 under Diary No,5910, that is within the prescribed 30 days. The appeal was noted for 18-7-2006. The office raised certain objections which were of minor nature, such as furnishing of better copies of certain documents. The appellant was neither informed by the office regarding the objections nor any notice was given. However, on coming to know of the objections the appellant received back the file and re-filed the appeal on 24-7-2006 after removing the objections. Thereafter the matter kept pending and the office neither informed the appellant nor gave any notice regarding further objections having been raised vis-a-vis the appeal. The appellant kept on visiting the office time and again but was informed that the matter is pending and the appellant shall be informed of the fixation of the appeal in due course. Finally on 7-6-2007 the appellant learnt that there are certain further objections which are required to be removed. The appellant received the file and when the file was re-presented to the office on 18-6-2007 the office took the view that the appeal was time barred. The appellant was, therefore, required to file an application for condonation of delay under section 5 of the Act. The appellant filed the application even though the appeal was within time. It was on the insistence of the office that the application under section 5 of the Act was filed.
Contends that in the facts and circumstances of the case the appeal is within time. Relies on "Mst.
Sabiran Bi v. Ahmad Khan and another" (2000 SCMR 847), "Shazia Munawar v. Punjab Public Service Commission through Secretartj, Lahore" (PLD 2010 Lahore 160) and "Province of Punjab through District Collector Lodhran and 6 others v. Muhammad Khalid Khan" (2005 CLC 1083) to contend that unless a notice is given by the office to a party regarding the objections raised the appeal if filed within time cannot be held to be barred by limitation for non removal of the office objections. In the instant case the appellant did not receive any notice and was not informed of any further objections despite the appellate having approached the office from time to time.
4. We have gone through the record 'with the able assistance of the learned counsel for the parties and have also considered the arguments addressed at the bar. The sequence as given by both learned counsel so far as the dates are concerned is one and the same. It is also common ground that the appeal was initially filed on 1-7-2006 and which date was within the prescribed 30 days period of limitation. The point of divergence arises where the appellant has been made to explain the alleged delay in re-filing the appeal once the office objections had been removed.
5. It is contended by the learned counsel for respondent No,2 that there is an inordinate delay in removing the objections. The appellant has been unable to explain the delay between 24-7-2006 when further objections were raised and re-filing of the appeal on 18-6-2007. A period of almost 11 months is unexplained. The learned counsel for respondent No,2 has laid great stress on the provisions of section 29 of the Act and section 22 of the Ordinance to contend that since the provisions of section 5 of the Act have not been made applicable to appeals under section 22 of the Ordinance the appellant cannot seek condonation of delay. Assuming without conceding, that the appellant's application for condonation of delay is competent even then the appellant has been unable to explain the delay in filing the appeal as each and every day's delay has to he explained which the appellant has failed to do.
6. On the other hand, the learned counsel for the appellant has contended that once the initial objections were removed by the appellant the appeal was re-filed on 24-7-2006, however, thereafter the office never informed the appellant about raising of any further objections. The file was not traceable and no notice was given to the appellant regarding raising of further objections.
As and when the appellant learned of raising of further objections it received back the file on 7-6- 2007 in order to remove the objections and re-filed it on 18-6-2007. The learned counsel for the appellant submits that the parties cannot be penalized for non removal of objections within the prescribed period unless notice thereof is given to the party by the office. In this respect the learned counsel for the appellant has placed reliance on the judgment reported as "Mst. Sabiran Bi v. Ahmad Khan and another" (2000 SCMR 847).
7. We have carefully examined the record. There is nothing to show whether or not notice was given to the appellant by the office to remove the further objections upon refilling of the appeal on 24-7- 2006 after, removal of the initial objections. The contention of the learned counsel for the appellant that the appellant had no notice of the further objections having been raised by the office, therefore, lent credence. Similarly there is nothing on the record to show as to why the appeal was not fixed for hearing in motion due to non-removal of the further objections by the appellant.
8. In a recent judgment of the Hon'ble Supreme Court reported as "Farman Ali v. Muhammad Ishaq and others" (PLD 2013 SC 392) the Hon'ble Supreme Court has inter alia held that:-- "...However, all these actions are within the exclusive authority of the High Court, which cannot and have not been delegated to the office and the office (DR) has no authority and the empowerment that of his own to declare a petition, which has been filed within prescribed period of limitation as time barred, only because the office objection has not been met in time; the D.R. Also in such a situation cannot require the petitioner to file an application for the condonation of delay. It may be emphatically held that such a revision petition, which was filed within time prescribed by law, but was deficient in some respect, and such deficiencies were not supplied and made up in the given time, cannot be termed to be barred by time. It may be pertinent to mention here that where the revision petition is beyond limitation, the DR can point out to the petitioner this aspect and caution him, but has to fix the matter before the Court for its decision on the question of limitation leaving it for the petitioner to seek the indulgence of the Court on the question of limitation or otherwise. Be that as it may, we may like to refer here a verdict of this Court which has nexus to the matter i,e, "Mst. Sabiran Bi v. Ahmad Khan and another" (2000 SCMR 847) holding that:- "Thus, in view of above discussion we are inclined to hold that once a suit, appeal or revision has been presented before the authorized officer of the Court within the prescribed period of limitation, it cannot be treated barred by time for the reason that the office has noted defects in the proceedings which have not been removed by the concerned party or his Advocate, and in such like situation the Presiding Officer of the Court at the best can consider the maintainability of proceedings in view of the provisions of Order VII, Rule 11 or identical provisions available in the Code of Civil Procedure or the law under which the proceedings were instituted. It is also important to note that parties within the stipulated period prescribed by the concerned authorized officer subject to the condition that specific notice has been served upon the party or Advocate to do the needful. Even if after notice the defect is not removed the case shall be listed for non- prosecution before the Presiding Officer who may in his discretion allow time to comply with objections of office."
6. The upshot of the above discussion is, that where a revision petition has been filed within time, but the office objection(s) points out certain deficiencies in respect of the institution, for all intents and purposes, it shall be deemed to have been instituted within the period of limitation and where the petitioner does not remove the office objections and make up the deficiencies in the time provided by the office, the matter shall be placed before the Court on the judicial side and the Court shall decide about the fate of the petition in accordance with law, and as per some of the guidelines provided in the preceding part of this judgment. In the instant case, an error has been committed at both the levels, i,e, the office, where an impression was caused that the revision petition of the appellant is rendered time barred on account of the lapse of the period due to the failure on part of the appellant to make up the deficiencies in the time specified by the office and requiring the petitioner to file the application for the condonation of delay, and also at the stage of hearing when the learned High Court has not adverted to the fact of the case, the relevant law, quoted above, but has simply dismissed the petition as being time barred due to the non- application of section 5 of the Limitation Act, 1908 to the revision petitions. Therefore, the impugned judgment cannot sustain which is hereby set aside and the matter is remanded to the learned High Court for the decision afresh on merits..."
9. Whilst considering the facts of the instant appeal on the basis of the above judgment of the Supreme Court one cannot help but come to the conclusion that apparently there has been a lapse on the part of the office in not informing the appellant about further objections having been raised. As mentioned above there is nothing on the record to show that due notice had indeed been given to the appellant for removal of the objections and upon receipt of the notice the appellant had failed to do so within the time prescribed. The office further erred in requiring the appellant to file an application for condonation of delay under section 5 of the Act, given the fact that the appeal was filed within time.
10. Under the circumstances following the ratio of Farman Ali's case (supra) we feel that the appellant cannot be penalized for the inaction of the office, therefore, we hold the appeal to be within time and the objection of the learned counsel for respondent No,2 that the appeal is barred by time is accordingly overruled.
11. The office is directed to list out the main appeal for a date after the summer vacation.
Objection overruled.