Main case and C.M. No.1-C of 2020 This appeal filed under section 22 of the Financial Institutions (Recovery of Finances) Ordinance, 2001 (the Ordinance) calls into question order dated 18.07.2014 passed by the banking court whereby the applications filed by the judgment debtors were allowed.
2. During the, course of proceedings in this appeal, the appellant filed an application under Order XLI, Rule 20 of the Code of Civil Procedure, 1908 (C.P.C.) for adding the name or Malik Abdul Waheed as respondent No. 3 to this appeal who was a defendant in a suit filed by the appellant bank. Reply to this application has been filed by Malik Abdul Waheed in which a prayer has been made for dismissal of this application as well as the main appeal for the failure of the appellant to implead the necessary party .
3. The facts of the case in brief are that a decree was passed by the banking court in a recovery suit filed by the appellant against which two appeals bearing R.F.As. Nos. 112 and 379 of 2004 were filed. During the pendency of the said appeals, a compromise was agreed upon between the parties, the terms whereof were mentioned in the settlement letter requiring the judgment debtors to pay the suit amount together with costs of funds. The appeals were disposed of by holding that the decree of the banking court shall stand modified in terms of the settlement letter . The judgment debtors have admittedly made payment of the suit amount.
4. The judgment debtors filed applications before the executing court under section 47, C.P.C. claiming that they have paid excess amount of Rs.1,071,77 0/- which the appellant bank is liable to return and that the securities of judgment debtors be released. The banking court allowed the said applications through the, impugned order holding that the decree has been satisfied and directed the appellant bank " to refund the excess amount by submission of Pay Order within one month in the name of the court for disbursal to the judgment debtors according, to their respective payments and also release the property and to discharge the guarantee of judgment debtor No.2 forthwith."
5. The present appeal filed by the appellant did not cite Malik Abdul Waheed who was defendant No.2 in the suit as a respondent herein. C.M. No.1-C of 2020 was accordingly filed for adding the name of Malik Abdul Waheed as respondent No.3 in this appeal.
6. Learned counsel for Malik Abdul Waheed placed reliance on the law laid down by the Hon'ble Supreme Court in the case of Mst. Murad Begum and others v. Muhammad Rafiq and others PLD 1974 SC 322 and Mst. Baqbool Begum and others v. Gullan and others PLD 1982 SC 46 in which it was< held that the non-impleadment of necessary parties including defendants against whom decree was passed jointly and severally would make the appeal incompetent.
7. Learned counsel for the appellant in response placed reliance on the judgment of the Supreme Court in the case of Mst. Sardar Begum v. Muhammad Anwar Shah and others 1993 SCMR 360. In this case, the legal representatives of a party which were impleaded in the suit were omitted to be impleaded in the appeal and instead of deceased defendant was arrayed as a respondent. An application was accordingly filed under Order XLI, Rule 20 read with Order I, Rule 10, C.P.C. for impleading the legal representative of the deceased respondent. The application was dismissed and also the appeal. The Hon'ble Supreme Court held: We are inclined to hold that there is marked distinction between adding or subs tituting a party and bringing on record legal representatives of a decease d party . The provision of section 22 of the Limitation Act which provides that if a party is added to a pending suit as a defendant, the suit so far as he is concerned for the purpose of limitation, shall be deemed to be instituted on the date when he is impleaded, cannot be pressed into service in case when legal representatives of a deceased plaintif f or defendant are to be brought on record under Order XXII, C.P.C. We may further observe that prior to the promulgation of the Law Reforms Ordinance, 1972 (Ordinance XII of 1972) hereinafter referred to as the Ordinance, by virtue of Rules 3 and 4 of Order XXII, C.P.C., the effect of omission to bring the legal representatives of a deceased plaintif f or defendant was that the suit used to abate against him. But this has been done away by the Ordnance and, therefore, alter the enforcement of the Ordinance, no suit can abate on the above ground. The Legislature in its wisdom thought it proper not to allow abatement of a suit on account of omission to bring legal representatives of a deceased plaintif f or defendant on record. Now a valid decree can be passed even in the absence for the legal representatives of a deceased defendant. This is subject to the right conferred on the legal representatives to apply for setting aside judgment/decree under sub-rule
(2) of Rule 9 of Order XXII, C.P.C. Furthermore, newly added Rule 26 of Order VII, and Rule 13 of Order VIII,C.P .C. enjoin a plaintif f and a defendant to file a list of his legal representatives and to give the same and address of the person, who would intimate to the Court about the death, while presenting plaint and filing of written statement, respectively .
This judgment is however not applicable to the facts of the present case as it was concerned with substitution of legal representatives rather than addition of a party that was omitted to be impleaded in the first place. This judgment of the Hon'ble Supreme Court was also considered by a learned Division Bench of this Court in judgment reported as Shoaib Ahmed Faridi v. United Bank Limited 2007 CLD 835 which concluded that it was not applicable to a case when a necessary party was not impleaded in the appeal. It was held as follows: Having gone through the cited precedent we find the same to be clearly distinguishable on facts. In the said case, the legal representatives of a deceased plaintif f were omitted from the array of parties. In the present appeal it is the defendents themselves [not their legal representatives] who are sought to be impleaded. It was observed by the honourable Supreme Court in the cited case that there is a marked distinction between adding or substituting a party and bringing on record the legal representatives of a deceased party ." The case of Mst. Sardar Begum supra therefore, cannot be accepted as authority for deciding this case.
8. Section 22 of the Limitation Act, 1908 is clear that limitation starts to run against a newly added respondent on the date when he .is so impleaded. In the present case, the appeal was filed on 21.07.2014 whereas C.M. No. 1-C of 2020 was filed after a delay of almost six years when the appeal against Malik Abdul Waheed had become barred by limitation, Malik Abdul Waheed was a necessary , party as the impugned order by the banking court was passed in his favour with a direction to the appellant bank to release his personal guarantee as well as property .
9. C.M. No 1-C of 2020 cannot be allowed by virtue of the fact that the limitation period for filing of appeal against Malik Abdul W aheed has run out This application is accordingly dismissed.
10. In the absence of Malik Abdul Warme d, the impugned order cannot be set aside as he is the beneficiary of the said order , In this view of the matter , the main appeal is also liable to be dismissed in view of the law laid down in Mst. Murad Begum and others v. Muhammad Rafiq and others PLD 1974 SC 322 and Mst. Maqbool Begum and others v . Gullan and others PLD 1982 SC 46 . This appeal is accordingly dismissed.