' KHADIM HUSSAIN M. SHAIKH, J.---Through the captioned 1st appeal, filed under section 22 of Financial Institutions (Recovery of Finances) Ordinance, XLVI of 2001, the appellant has called in question the ex parte judgment dated 13.02.2014 and decree dated 19M2.2014, passed by the learned Banking Court-I, Sukkur, decreeing Suit No,74 of 2012 against the appellant and 2 others for Rs,5,50,042/- with costs and cost of funds to be determined under section 3(2) of Financial Institutions (Recovery of Finances) Ordinance, 2001 from the date of default till realization of the decreetal amount.
2. Briefly the facts of the case are that on 11.09.2012 the respondent-bank (plaintiff-bank) filed Suit No,74 of 2012 against Syed Ghulam Ali Shah and 2 others, for recovery of Rs,5,50,042/-. The case of the plaintiff-bank was that at the request of the defendant No,1, the plaintiff-bank had initially extended and disbursed running finance facility amounting to Rs,0.300 millions to the defendant No,1 in the year 2000 and the defendants Nos.2 and 3 stood as guarantors of the defendant No,1; the defendants had executed the finance documents including equitable and registered mortgage deed of the property bearing Khata No,16/147 Khatoni Nos.22, 29, 8532 shares measuring 3 marlas- 2 Sarsahi of Mohaal Mouza Dou Wala Sadiqabad as disclosed in paragraphs-6 and 7 of the plaint; the finance facility was renewed from time to time and lastly it was renewed vide sanction advice dated 1.7.2008 and the same was repayable on or before 30.06.2009; the defendants availed of the above finance facilities, but failed to re-pay the liability of the finance facilities, hence the plaintiff- bank filed the aforesaid suit.
3. The summons were issued against the defendants through all modes and service against them was held good, but they failed to appear and/or to file application for leave to defend the suit and thus the aforementioned suit was ordered to proceed ex parte vide order dated 15.01.2013, passed by the learned Banking Court-I, Sukkur and ultimately the suit was decreed for Rs,5,50,042/- vide judgment dated 13.02.2014 and decree dated 19.02.2014.
4. The appellant has filed the instant appeal on 16.04.2014 i,e, after 61 days of the impugned judgment dated 13.02.2014 and 56 days of the impugned decree dated 19.02.2014. However, on 26.11.2015 i,e, after more than 19 months of filing the instant appeal, the appellant has also filed an application under Section 5 of Limitation Act, 1908, (which hereinafter will be referred to as the Act for the sake of brevity), seeking condonation of delay in filing the appeal.
5. Learned counsel for the appellant reiterating the sole ground urged in his application under Section 5 of the Act, has contended that the appellant was not in knowledge about the impugned judgment and decree, passed by the learned Banking Court-I, Sukkur and due to this reason he could not file the instant appeal in time. He, therefore, prays that the delay in filing appeal may be condoned.
6. The remedy of appeal against the judgment and decree, passed by the Banking Court, in a suit, is provided under section 22 of the Ordinance, which reads as under:- "22. Appeal. (1) Subject to subsection (2), any person aggrieved by any judgment, decree, sentence, or final order passed by a Banking Court may, within thirty days of such judgment, decree, sentence or final order prefer an appeal to the High Court.
(2) The appellant shall give notice of the filing of the appeal in accordance with the provisions of Order XLIII, Rule 3 of the Code of Civil Procedure (Act V of 1908) to the respondent who may appear before the Banking Court to contest admission of the appeal on the date fixed for hearing.
(3) The High Court shall at the stage of admission of the appeal, or at any time thereafter either suo motu or on the application of the decree-holder, decide by means of a reasoned order whether the appeal is to be admitted in part or in whole depending on the facts and circumstances of the case, and as to the security to be furnished by the appellant:"
7. A plain reading of the above provisions of law reveals that subsection (1) of section 22 of the Ordinance provides period of thirty days for filing the appeal by any person aggrieved by any judgment, decree, sentence, or final order, passed by a Banking Court, to the High Court.
8. Section 29 of the Act, which is the relevant provision of law regarding applicability of certain provisions of the Act, when a special law or statute itself provides period of .Limitation for filing any suit, appeal or application, is reproduced herein below, so as to appreciate, if the provisions of section 5 of the Act, would be applicable to the case in hand:- "29. Savings (1) Nothing in this Act shall affect section 25 of the Contract Act, 1872 (IX of 1872).
(2) Where any special or local law prescribes for any suit, appeal or application a period of limitation different from the period prescribed therefor by the First Schedule, the provisions of section 3 shall apply, as if such period were prescribed therefor in that Schedule, and for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law--
(a) the provisions contained in section 4, sections 9 to 18 and section 22 shall apply only in so far as, and to the extent to which, they are not expressly excluded by such special or local law; and
(b) the remaining provisions of this Act shall not apply."
9. A bare reading of the above provisions of law, reveals that for the purpose of determining period of Limitation prescribed for any Suit, Appeal or Application by any special or local law, the provisions contained in section 4, sections 9 to 18 and 22 of the Act shall apply only in so far as, and to the extent to which, they are not expressly excluded by such special or local law; section 29(2)
(b), provides that the remaining provisions of the Act, shall not apply.
10. In view of the above, we are of the considered opinion that the provisions of section 5 of the Act, are not applicable to the appeal filed under section 22 of the Ordinance as the Ordinance, which is a special law, itself provides period of limitation for filing the appeal to the High Court against the judgment, decree, sentence or final order, passed by the Banking Court. Reference can be made to case of Messrs S. Malik Traders and another v. Saudi Pak Leasing Company Ltd. (2009 CLD 171), wherein the Hon'ble Division Bench of this Court dismissed the appeal under section 22 of the Ordinance with the following observations:- "2. Today, we have heard the learned counsel for the appellant and with his assistance gone through the certified copy of the judgment and decree placed on record by the appellant. It shows that if the period of limitation is computed from the date of signing of decree and the period consumed in obtaining certified true copy of the judgment and the decree i,e, two days is also excluded still the appeal is time-barred by one day. This being the position and considering the fact that section 5 of the Limitation Act is also not applicable to this appeal, having been preferred under a special statute, it is dismissed being time-barred."
' In case of Allah Dino and another v. Muhammad Shah and others (2001 SCM R 286), the Hon'ble Supreme Court has held that:- "5 where the law under which proceedings have been launched prescribes itself a period of limitation__ then benefit of section 5 of the Limitation Act cannot be availed unless it has been made applicable as per section 29(2) of the Limitation Act, ' In case of Messrs Khan Tractors, Alipur Road, Khan Garh District Muzaffargarh through Proprietor and 2 others v. Habib Bank Limited, Railway Road Branch, Muzaffargarh through Manager (2013 CLD 177), the Hon'ble Division Bench of Lahore High Court, dismissed the application under section 5 of the Act, being not maintainable and the appeal as barred by time with the following observations:- "7. Learned Division Bench of the Karachi High Court dealing with the same proposition in "Messrs S. Malik Traders and another v. Saudi Pak Leasing Company Ltd." (2009 CLD 171) also held that provisions of section 5 of the Limitation Act, 1908, cannot be made applicable in an appeal, having been preferred under a special Statute i,e, the Financial Institutions (Recovery of Finances)
Ordinance, 2001.
8. Pursuant to above discussion and in view of settled proposition of law, provisions of section 5 of the Limitation Act are not attracted to the appeal preferred under section 22 of the Financial Institutions (Recovery of Finances) Ordinance, 2001 (XLV1 of 2001) and as such the application being not maintainable is dismissed."
11. Moreover, from a perusal of the certified copies of the impugned judgment and decree annexed with the appeal, it would be seen that the impugned judgment was passed on 13.02.2014 and decree was drawn on 19.02.2014 and copies thereof were applied for by the appellant on 27.02.2014 i,e, within 07 days of passing the impugned decree dated 19.02.2016 and whereas the copies were delivered to the appellant on 28.02.2014, but the instant appeal was filed on 16.04.2014, which is barred by 25 (twenty five) days as the appeal was required to be filed on or before 22.03.2014.
Furthermore, the contention of the learned counsel for the appellant that the appellant was not in knowledge of passing the impugned judgment and decree, passed by Banking Court-I, Sukkur, and hence, he could not be able to file the instant appeal in time is patently absurd and misconceived, as the appellant had filed the instant appeal even after 46 days of receiving the certified copies of the impugned judgment and decree, moreover, such an assertion of the learned counsel could hardly be a ground for the appellant to seek condonation of delay of 25 days in filing the appeal even in a case attracting provisions of section 5 of the Act as the delay of each and every day with justification was to be explained in such a case in view of well settled law, what to say about the case one in hand in which the provisions of section 5 of the Act, are inapplicable as discussed by us in paragraph-10 supra.
12. In view of what has been discussed above, we are of the considered view that the instant application bearing C.M.A. No, 665 of 2015 under section 5 of the Act, being not maintainable is liable to be dismissed and resultantly the instant appeal being time barred also deserves to be dismissed.
13. Foregoing are the reasons of the short order announced by us on 28.09.2016, whereby application under section 5 of the Act was dismissed and resultantly the appeal being time barred was dismissed in limine along with other listed application bearing C.M.A. No,187/2014 with no order as to costs.