C.M.No.212/B-2016 & Main Case This objection petition is on behalf of judgment debtors under section 7 & 19 of the Financial Institutions (Recovery of Finances) Ordinance, 2001 (Ordinance) read with section 48 and 151 of Code of Civil Procedure, 1908 (CPC) for dismissal of second execution application (Ex.A.No.15-B-2013) being barred by limitation.
2. Learned counsel for the applicant submits that suit for recovery was decreed on 19.09.2003 and first execution application (Ex.A.No.53/B-2003) was filed on 21.11.2003, however, first execution application was dismissed for non-prosecution on 01.12.2008 and restoration application was also dismissed on 25.02.2014. Contends that instant second execution application (Ex.A.No.15-B/2013) filed on 09.09.2013 is barred by limitation prescribed under Article 181 of the Limitation Act, 1908 (Act) and also beyond period of six years from the date of decree, prescribed under section 48 of CPC. He submits that execution application being barred by limitation, is liable to be dismissed.
3. Learned counsel for the decree holder bank filed reply and submits that decree dated 19.09.2003 passed by this Court under the Ordinance was in capacity of Ordinary Original Civil Jurisdiction, therefore, limitation prescribed under Article 183 of the Act, will be applicable. He submits that after passing of decree, judgment debtors entered into out of Court settlement agreement dated 31.07.2007 with the decree holder bank but they defaulted in their commitment, therefore, the second execution application is within period of six years from the date of said default as prescribed under Article 183 of the Act and section 48(2)(b) of CPC. Reliance is placed on Victory Corporation and others vs. Emirates Bank (PLD 1999 Karachi 391), Dr. Mrs. Tallat Khan and another vs. Mrs. Sara Shafqat and 6 others (2000 SCMR 184), Pakistan Fishers Ltd., Karachi and others vs. UBL (PLD 1993 SC 109), Adamgee Insurance Co. Ltd. and others vs. M.C.B. Ltd. and others (2005 SCMR 318) and Brothers Steel Mills Ltd. vs. Mian Ilyas Miraj and 14 others (PLD 1997 SC 543). He further submits that limitation period of six years for second execution application under section 48 CPC is to be reckoned from dismissal of first execution application and not from the date of decree. He placed reliance on Mehboob Khan vs. Hassan Khan Durrani (PLD 1990 SC 778). He concluded that execution is within limitation under section 48(1)(b) of CPC.
4. I have heard the learned counsel for the parties and perused the record.
5. To facilitate an easy analysis of legal questions raised, deem it necessary to briefly narrate the undisputed facts at the first instance. The suit for recovery (COS No.4/2002) was filed by decree holder bank against judgment debtors on 09.12.2002. The judgment and decree was passed on 19.09.2003 by this Court under the Ordinance.The first execution application (Ex.A.No.53/2003) was filed on 21.11.2003. The said first execution application was dismissed for non-prosecution on 01.12.2008. On 29.06.2012, decree holder bank filed application (C.M.No.513-B of 2012) for restoration of first execution application. On 25.02.2 014 restoration application was dismissed and this order was not challenged by decree holder bank any further before higher forum. The instant second execution application (Ex.A.No.15-B/2013) was filed on 09.09.2013. It is relevant to note that during this time, the decree holder bank entered into agreement dated 31.07.2007 without intervention or approval of Court with judgment debtors. As per assertion of decree holder bank, the judgment debtors defaulted under the aforesaid settlement agreement.
6. The issue need examination is whether in the given circumstances, the instant second execution application is barred by limitation or not. Under Article 181 of the Limitation Act, for application, in which no period is provided elsewhere in the schedule or section 48 CPC, the limitation period of three year is available from the date when the right to apply accrues. Section 48 CPC prescribed limitation of six years for filing of any fresh execution application from the date of decree or date of default in making payment as prescribed in the decree or subsequent order of Court. In present case, no doubt, the first execution application against the judgment and decree dated 19.09.2003 was filed on 21.11.2003, within period of three year, however , after dismissal of said execution for non-prosecution on 01.12.2008, the second execution application was filed on 09.09.2013, which was much beyond period of six years from the date of decree as prescribed in section 48 CPC. Main argument of learned counsel for the decree holder bank is that as judgment and decree dated 19.09.2003 was passed by this Court in ordinary original civil jurisdiction, therefore, Article 183 of Limitation Act, will apply and period of six year will be reckoned from the date of default in payments, under settlement agreement dated 31.07.2007. I have carefully examined the aforesaid arguments. There is distinction between original civil jurisdiction and ordinary original civil jurisdiction of the High Court. The original civil jurisdiction can be conferred on High Court through statute, whereas ordinary original civil jurisdiction is conferred by CPC. The august Supreme Court in Brothers Steel Mills Ltd.'s case (PLD 1996 SC 543) highlighted the above difference in following terms:- "Similar view seems to have been taken in Pakistan Fisheries Ltd. therefore, seems to be a consistent view that the High Court besides jurisdiction already conferred on it may be vested with any jurisdiction including original civil jurisdiction by a statute. Under such original civil jurisdiction the proceedings are to initiate and conclude before the High Court. The Ordinance likewise confers such original civil jurisdiction on the High Courts, which completely different from the ordinary original civil jurisdiction conferred the Code of Civil Procedure. Mr. Muhammad Farooq the learned A.S.C. has contended that the jurisdiction exercised by the Company Judge is special original jurisdiction and not original civil jurisdiction as the original civil jurisdiction is exercised under the Code of Civil Procedure. We are unable to subscribe to this contention as under the Ordinance the Court is required to adjudicate upon rights and liabilities of the parties which are civil in nature. Such jurisdiction conferred by a statute has sometimes been termed as special or statutory jurisdiction, but it possesses all the attributes of original civil jurisdiction and remains nothing but the original civil jurisdiction as distinguished from the appellate jurisdiction."
The august Supreme Court in judgment (supra) further held as under:- "A close scrutiny of the judgments holding that the Court under the Ordinance does not exercise original civil jurisdiction shows that they are based on the observation made in Ahmed Khan (supra), in which Cornelius, C.J. has specifically mentioned that the ordinary original civil jurisdiction is confined to trial of suits. Although in some judgments the word 'ordinary' has not been used, yet where the proceedings are initiated by filing a plaint as provided by the Code of Civil Procedure, it should be termed as ordinary original civil jurisdiction and not merely original civil jurisdiction. To clearly understand the meaning and impact of the term "original civil jurisdiction"' it is necessary to differentiate between these two terminologies. The original civil jurisdiction cannot be restricted to proceeding initiated by filing plaint which in my view is ordinary original civil jurisdiction of a Court, as jurisdictions are conferred on the High Courts by statutes which provide for initiating proceedings before the High Court itself."
7. The original civil jurisdiction can be of two types; ordinary and extra ordinary. The Hon'ble Supreme Court of Pakistan in Brother Steel Mills (supra) noted that Lahore High Court does possess extra -ordinary original civil jurisdiction and as a matter of fact the only High Court which enjoys ordinary civil original jurisdiction is the Sindh High Court. In said judgment it was further held that since the High Court exercises civil jurisdiction under the Companies Ordinance 1984 (Companies Ordinance), therefore,section 117 CPC shall apply. The reasoning advanced in this case was that since the Companies Ordinance redresses civil rights hence the High Court when exercising jurisdiction under the Companies Ordinance is in fact exercising original civil jurisdiction. The term original civil jurisdiction was explained in detail by Honourable Supreme Court in said judgment as being a jurisdiction where the court is empowered to entertain suit and proceeding of civil nature which are initiated before the court as a court of first instance. The jurisdiction can be conferred on any Court including a High Court by a statute such as Companies ordinance or Ordinance, which may provide for initiating the proceedings in that Court as a Court of first instance having power to entertain and decide it. Such Court will thus be vested with original jurisdiction and if such jurisdiction relates to civil dispute it will be termed as original civil jurisdiction.
8. Similar to Companies Ordinance, the High Court while exercising jurisdiction under the Ordinance, also adjudicate upon civil rights and liabilitie s of the parties, hence it may be termed as special jurisdiction but it possesses all attributes of original civil jurisdiction. However , High Court under the Ordinance, does not exercise ordinary original civil jurisdiction conferred by CPC. This fact is also evident from the decree sheet dated 19.09.2003 itself, where it is specifically recorded that the said decree was passed in original civil jurisdiction.
Article 183 of the Limitation Act, is only applicable when judgment and decree of any High Court is passed in exercise of its ordinary original civil jurisdiction but not where decree is passed in original civil jurisdiction.
In the case law relied upon by the learned counsel for the petitioner i.e. Pakistan Fisheries' case (supra) , Dr. Mrs. Tallat Khan' s case (supra) and Adamgee Insurance Companies' case (supra) it was also held that High Court under various statutes exercise original civil jurisdiction. In none of these judgments passed by august Supreme Court, it was held that High Court under statute exercise ordinary original civil jurisdiction. In (PLD 1998 Karachi 391), the Honourable Sindh High Court though while relying upon Pakistan Fisheries' case (supra), held that under statute, High Court exercise ordinary original civil jurisdiction, however , this finding is not in consonance with the judgment by august Supreme Court relied upon, where it was held that High Court exercise original civil jurisdiction. This conclusion is supported by the fact that Honourable Supreme Court in another judgment Habib Bank Ltd. vs. Zulfiqar Ali Khan and others (2002 CLD 1758 ) while relying upon Pakistan Fishers Ltd., Karachi'case (supra) held as under;- "It is clear from the above section that when a Judge of the High Court is nominated by the Chief Justice for expeditious disposal of the cases under the Act, he acts as Banking Court and any order passed by him as such Court would be in the capacity of a Banking Court and not the High Court in its ordinary jurisdiction."
"In Messrs. Tri Star Polyester Limited and another v. Citibank 2001SCMR 410), this Court has held that the High Court acting as Banking Court under section 2(f) of the Act was similar to a Special Court and any such order passed by it was in its capacity as a Banking Court and not the High Court in its ordinary jurisdictio n."
In M/s. Tri-Star Polyester Ltd. and another vs. Citi Bank Ltd. (PLD 2001 SCMR 410), the Honourable Supreme Court held as under:- "High Court was constituted as a Banking Court and while trying a suit filed under the Act, it was not a High Court in its ordinary meanings exercising jurisdiction as such, whereas on the other hand it was exercising special jurisdiction having been constituted as a Banking Court."
"It was held that the Banking Court as defined in the Act was similar to a Special Court as defined in section 2(f)of the Banking Companies (Recovery of Loans), Ordinance, 1979 as regards nature of jurisdiction in banking cases, therefore, any order passed by a learned Judge of the High Court as such was in the capacity of a Baking Court and not the High Court in its ordinary jurisdiction."
The above discussion leaves no doubt that High Court jurisdiction under the Ordinance is original civil jurisdiction and not ordinary original civil jurisdiction, therefore, provisions of Article 183 of Limitation Act and section 48(2(b)
CPC are not attracted.
9. The next contention of learned counsel for the decree holder bank is that period of six years of limitation prescribed under section 48 (1) CPC for second execution application is to be reckoned from the date of dismissal of first execution application, hence this execution application is within time. This argument is also misconceived.
Bare reading of section 48 of CPC shows that no order for the execution of decree shall be made upon any fresh application presented after expiration of six years from the date of decree sought to be executed. The provision of section 48 CPC is clear and express in term and it will be fallacy to hold that six years limitation for fresh execution will be from the date of dismissal of first execution application and not from the date of decree. The case of Mehboob Khan (supra), relied upon by the learned counsel for the decree holder bank is not applicable to the facts and circumstances of this case. In said case, the second execution application was filed after five years from the date of decree and the question was whether Article 181 of Limitation Act will apply or fresh execution application will be governed under section 48 CPC. The Honourable Supreme Court held that first execution will be governed under Article 181 of Limitation Act whereas any subsequent or fresh application for execution will be governed by section 48 CPC. It was nowhere held in said judgment that limitation of six years under section 48 CPC will be counted from the date of dismissal of first execution application and not from the date of judgment and decree.
10. Learned counsel for the decree holder bank stressed hard on the argument that the parties entered into settlement agreement dated 31.07.2007 and judgment debtors committed default in payments under said agreement, therefore, as per section 48(1)(b) CPC, period of limitation is to be calculated from the date of said default. The said argument has also no basis. As per provision of section 48(1)(b) CPC, where decree or subsequent order direct any payment of money or delivery of any property to be made at a certain date or at recurring period, the limitation of six years will run from the date of default in making payment or delivery of property . In the present case, no such direction was passed either in judgment and decree dated 19.09.2003 or in the subsequent orders passed by the Court. The agreement dated 31.07.2007 was admittedly without intervention and approval of the Court, therefore, default of payments under said agreement will not amount to default of payments under the decree or any subsequent order passed by the Court. For above reasons, the provisions of section 48(1)(b) are not applicable and period of limitation for filing second execution application was to be calculated from the date of decree dated 19.09.2003 under section 48(1)(a) CPC.
11. The facts, circumstances and law discussed above, lead to the ineluctable conclusion that this second execution application filed on 09.09.2013 to execute judgment and decree dated 19.09.2003, is barred by limitation for period of 3 years 11 month and 21 days. Accordingly , this application is allowed. The necessary corollary and effect is that execution application i.e. (Ex.A.No.15-B/2013) is dismissed being barred by time.