' ABID AZIZ SHEIKH, J.---This appeal is filed under section 22 of the Financial Institutions (Recovery of Finances Ordinance 2001, against the order dated 1-12-2009 passed by the learned Banking Court No,1 Multan, whereby the application of the appellant for dismissal of the execution petition, was dismissed.
2. Briefly the facts in this case are that respondent No,1 filed a suit against the defendants including the appellant (defendant No,1) which was decreed on 10-10-2001 for an amount of Rs,7,53,341.48 along with markup, however, the judgment-debtors including the appellant were allowed time to deposit the decretal amount by 10-2-2002. The judgment debtors failed to deposit the decretal amount, therefore, the respondent No, 1 /decree holder bank filed an application on 16-10-2008 for the conversion of the decree dated 10-10-2001 into execution. The appellant/judgment debtor filed an application dated 27-2-2009 for setting aside the execution proceedings being barred by time.
The said application was dismissed vide impugned order dated 1-12-2009, hence, this appeal.
3. The learned counsel for the appellant argued that as per the judgment and decree dated 10-10- 2001, the decretal amount was payable by 10-2-2002, therefore, under Article 181 of the Limitation Act 1908 (Limitation Act) and section 48 of Civil Procedure Code, 1908 (C.P.C.), the execution petition could only be filed within a period of three years and second execution petition within six years. Submits that the application dated 16-10-2008 for conversion of a decree into execution was grossly barred by time, therefore, the impugned order is liable to be set aside.
4. The learned counsel for respondent No,1 /decree holder bank argued that once a decree is passed it was to be converted automatically into an execution under section 19 of the Financial Institutions (Recovery of Finances) Ordinance, 2001, therefore, the application for conversion of decree into execution is not barred by time. Submits that the impugned order is legal and valid.
5. We have given our anxious consideration to the arguments of the learned counsel for the parties and have also gone through the record.
6. The judgment and decree in this case was passed under a special law i,e, the Financial Institutions (Recovery of Finances) Ordinance 2001 (Ordinance 2001). The Ordinance 2001 is a complete Code in itself and being a special law it excludes the provisions contained in general law.
The primary legal question, which need determination in this case is whether Article 181 provided in the Schedule of the Limitation Act and section 48 of the C.P.C. Are applicable in the present case.
Article 181 provided in the Schedule to the Limitation Act, prescribed limitation of three years for filing an application for execution of a decree made by the Courts other than the High Court, whereas section 48 of the Civil Procedure Code 1908, (C.P.C.) provides that no fresh execution application be entertained after the expiry of six years from the date of decree. Under section 7(2) of the Ordinance 2001, the Banking Court in the matter in respect of which procedure has not been provided in the Ordinance, will follow the procedure laid down in C.P.C., whereas under section 24 of the Ordinance 2001, save as otherwise provided, the provisions of Limitation Act will apply to all cases filed under Ordinance 2001. The provisions of sections 7(2) and 24 of the Ordinance 2001, are reproduced for ready reference, as under:-- "7(2) A Banking Court shall in all matters with respect to which the procedure has not been provided for in this Ordinance, follow the procedure laid down in the Code of Civil Procedure, 1908 (Act V of 1908), and the Code of Criminal Procedure 1898 (Act V of 1898).
24. Application of the Limitation Act, 1908 (Act IX of 1908)---(1) Save as otherwise provided in this Ordinance, the provisions of the Limitation Act, 1908 (Act IX of 1908) shall apply to all cases instituted or filed in a Banking Court after the coming into force of this Ordinance.
(2) A suit under section 9 may be entertained by a Banking Court after the period of limitation prescribed therefore, if the plaintiff satisfies the Banking Court that he had sufficient cause for not filing the suit within such period."
(underlining is by us to emphasize)
7. The bare reading of both these provisions shows that C.P.C. And LiMitation Act will apply only in the matters, where procedure and provision is not provided in the Ordinance 2001 itself. The provision of Ordinance 2001 provide a special procedure for the execution of decrees passed under the Ordinance 2001. As per provisions of section 19 of the Ordinance 2001 upon pronouncement of judgment and decree by Banking Court the suit shall automatically stands converted into the execution petition without filing of separate execution application. For ready reference the provisions of section 19(1) are reproduced, which reads as under:-- "19. Execution of decree and sale with or without intervention of Banking Court.---(1) Upon pronouncement of judgment and decree by a Banking Court, the suit shall automatically stand converted into execution proceedings without the need to file a separate application and no fresh notice need be issued to the judgment-debtor in this regard. Particulars of the mortgaged, pledged or hypothecated property and other assets of the judgment- debtor shall be filed by the decree-holder for consideration of the Banking Court and the case will be heard by the Banking Court for execution of its decree on the expiry of 30 days from the date of pronouncement of judgment and decree: ' Provided that if the record of the suit is summoned at any stage by the High Court for purposes of hearing an appeal under section 22 or otherwise, copies of the decree and other property documents shall be retained by the Banking Court for purposes of continuing the execution proceedings. "
8. The special procedure provided under section 19(1) of the Ordinance 2001, for execution of decrees passed under the Ordinance 2001, will exclude the general provisions of Article 181 of the Limitation Act and section 48 of the C.P.C. It is settled proposition, that special law shall exclude the provisions in the general law. In this context reliance is placed on the cases reported as Nazir Ali M.
H. Ganaii v. Commissioner of Income Tax, Companies-/ Karachi (1994 PTD 958), Messrs N. A.
Industries Karachi v. Commissioner of Income Tax, Central Zone "A" Karachi (1993 PTD 45), Collector of Sales Tax (East) Karachi v. Customs, Excise, Sales Tax Appellate Tribunal, Karachi and another (2003 PTD 1477), National Bank of Pakistan and 7 others v. Emirates Bank International Limited and another (1993 CLC 2009), Habib Bank Limited v. Messrs Alma Corporation and others (2000 CLC 1425).
9. The objects and reasons for enacting the law of the Financial Institutions (Recovery of Finances)
Ordinance 2001 was to provide a single forum to the financial institutions as well as to the customers against a default in fulfillment of their obligation towards each other with regard to any finance. The Ordinance 2001, being a special law takes care of various situations itself and application of general laws will not only amount to circumvent the provisions of this special law, but will also erode the very object and purpose of this special law. Under the Ordinance 2001, there is no requirement for decree holder bank to file separate execution petition and it is the duty of the Court itself to convert the decree into execution without waiting for separate application for execution from the decree holder. In the present case the decree was passed on 10-10-2001 and it was for the learned Court to convert it into execution under provisions of section 19(1) of the Ordinance 2001 ibid. In our view the application filed by the respondent-Bank for conversion of a decree into execution is merely an application to trigger the machinery of the learned Banking Court into motion for implementation of the mandatory provisions of section 19(1) ibid, which the Court was otherwise required to follow. Such application cannot be treated as an execution petition, therefore the same is not barred by time under Article 181 to the Schedule of the Limitation Act or section 48 of the C.P.C.
10. In view of the above discussion, we find no illegality or infirmity in the impugned order dated 1- 12-2009, therefore, this appeal has no force and the same is hereby dismissed, with no order as to costs.