AHMAD NADEEM ARSHAD J: This Execution First Appeal, (EFO) under Section 22 of the Financial Institutions (Recovery of Finances) Ordinance, 2001 (Ordinance ) is directed against an order dated 21.02.2020, passed by the learned Judge Banking Court (trial court ) on the basis of which an application filed by appellant for revival of execution petition was dismissed on the ground that it was barred by limitation.
2. Facts in brevity are that appellant instituted a suit for recovery of Rs.887340.84 (eight lacs, eighty seven thousand, three hundred and forty) against respondents, who appeared and submitted a petition for leave to appear and defend the suit. As later on they did not turn up, so they were proceeded ex-parte . Subsequently their petition for leave to appear and defend the suit was dismissed and the suit was decreed for an amount of Rs.71 1173.08 (seven lacs, eleven thousands, one hundred and seventy three) along with cost of suit as well as cost of funds vide judgment dated 13.01.2012 passed by the learned trial court. On passing the decree suit was converted into execution petition in terms of Section 19(1) of the Ordinance . During proceedings in execution, learned counsel for the decree holder/bank (appellant ) made a request that the bank had desired to auction the mortgaged property of its own under Section 19(3) of the Ordinance and requested for adjournment of the execution petition as sine-die . The learned trial court, vide an order dated 28.04.2012, instead of sine-die adjournment, dismissed the execution petition while holding that it was not pressed. However , it was observed that the decree-holder/bank may file fresh execution petition within the prescribed period of limitation under the law .
3. Thereafter , it was 13.12.2017 when an application was moved by appellant for revival of the execution petition on the ground that the judgment debtors/respondents were failed to pay the amount under the decree. Vide an order dated 14.07.2018, said application was dismissed for non-prosecution as well as for non-submission of correct/complete particulars of the case.
4. Appellant again moved an application for revival of application for execution petition on 28.01.2019 which was ultimately dismissed vide impugned order dated 21.02.2020.
5. We have heard learned counsel for the parties at length, perused the record with their able assistance and we have also gone through the precedents referred to by them.
6. Undeniably , the appellant instituted the suit under the provisions of the Ordinance and decree was passed. The Ordinance also provides a complete mechanism to carry out the execution. Section 19(1) of the Ordinance mandates that upon pronouncement of the judgment and decree by the Banking Court, the suit shall automatically stand converted into execution proceedings without filing separate application in this regard. This provision reads as under:- "Section 19(1). Upon pronouncement of the 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........."
7. The plain reading of the provisions (ibid) read with sub-Section (2) to (4) makes it clear that it empowers the decree-holder to adopt any mode for realization of its decree with or without the intervention of the Banking Court and it does not mean that on choice to satisfy the decree without intervention of the court, the doors are permanently closed for decree holder to come forward for satisfaction of the decree through the intervention of the court if it is unable to materialize the amount under the decree. For ready reference, Section 19(3) is as under:- "19. Execution of decree and sale with or without intervention of Banking Courts.- (1)....
(2)....
(3) In case of mortgaged, pledged or hypothecated property , the financial institution may sell or cause the same to be sold with or without the intervention of the Banking Court either by public auction or by inviting sealed tenders and appropriate the proceeds towards total or partial satisfaction of the decree. The decree passed by a Banking Court shall constitute and confer sufficien t power and authority for the financial institution to sell or cause the sale of the mortgaged, pledged or hypothecated property together with transfer of marketable title and no further order of the Banking Court shall be required for this purpose"
8. The learned trial court not only dismissed the execution petition against the prayer of the appellant, as demonstrated from the order dated 28.04.2012, which was adjournment of proceedings as sine-die but also wrongly turned down the application for revival of execution petition being time barred. The appellant in the given circumstances could not be penalized for the error which erupted because of act of the court.
9. The learned trial court also incorrectly applied the provisions of Article 181 and 182 of the Limitation Act, 1908
(Act) and Section 48 C.P.C while passing the impugned order . Article 181 of the Act and Section 48 C.P.C were not attracted in the instant case. There is no cavil with the proposition that Special law shall prevail over the provisions of general law. The Ordinance is a complete Code in itself and being a Special law it over rides the general law.
However , for the sake of arguments, if such provisions of law are applied in the case of appellant, even then the case was not hit by law of limitation. The suit/decree was converted into execution proceedings vide judgment dated 13.01.2012 and later on instead of adjourning it sine-die , the same was dismissed vide order dated 28.04.2012. The appellate moved first application for revival of the execution petition on 13.12.2017, which was clearly within a period of six years, that is the time provided under Section 48 C.P.C. The application was dismissed for non-prosecution as well as non-furnishing of particulars of the case. The appellant filed fresh application for revival on 28.01.2019 which too was quite within limitation of three years as provid ed under Article 181 of the Act, which says that where no period of limitation is mentioned for moving an application, then it will be three years.
10. Under Section 7(2) of the Ordinance , the court in the matters in respect of which procedure has not been provided in the Ordinance , will follow the procedure laid down in C.P .C. This provision is as under:- "7. Powers of Banking Court. - (1).....
(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)"
11. However Section 24(1) of the Ordinance allows the application of the Limitation Act, 1908, which is as under:- "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"
12. It appears from the reading of above said provisions of the Ordinance that C.P.C and the Act, will apply , where any procedure or provision is not provided in the Ordinance itself. Part II (Section 36 to Section 74) and Order XXI of the Code of Civil Procedure, 1908 deals with execution of decree. Order XXI rule 10 C.P.C. provides that where a decree-holder desires to execute its decree, he shall apply to the court which passed the decree and rule 11 describes that in a money decree, on the verbal application of the decree-holder the Court may direct the arrest of the judgment-debtor if he is within the precincts of the court, prior to the preparation of the warrant, whereas otherwise every application for the execu tion of a decree shall be in writing, signed and verified by the applicant.
But there is no such requirement in the Ordinance. As discussed above, the Ordinance is a complete code and provides absolute procedure for realization of the decree by converting the suit into execution proceedings, the moment suit is decided. The intention of the law maker is very much clear , not only to save the time but also erode the very object and purpose of this Special law from unnecessary technicalities. Under the Ordinance there is no requirement for decree holder to file separate execution petition and it is duty of the court itself to convert the suit into execution proceedings without waiting for any separate application for execution. The application filed by appellant cannot be treated as execution petition, which at the most can be pursued to trigger the machinery of the court into motion and to start the executi on proceedings for realization of decree therefore the same is not hit by law of Limitation or Section 48 of the C.P .C.
13. Admittedly , the decree has not been satisfied so far and an amount realizable involving rights and interest of the decree holder is at stake. On the other hand, the security of the judgment debtor in the shape of a mortgage property is still intact. Said mortgage cannot be redeemed until and unless the decree stands satisfied. Therefore, dismissal of the execution petition will leave both parties remediless as they cannot achieve the respective objects without completion of the execution process.
14. The impugned order in view of above discussion cannot sustain, therefore, this appeal is allowed . Impugned order is set aside and in consequence thereof, the execution petition stands revived which will now deemed to be pending with direction to the learned trial court to proceed further in the matter in accordance with law. No order as to the costs.