1. WAJIHUDDIN AHMED, J: -C.MA. 530/93 is an application of the appellants whereby in terms of section 12(5) of the Banking Companies (Recovery of Loans) Ordinance, 1979, security is sought, to be furnished in the sum of Rs.22,69,130.77 instead of the purported decretal amount of Rs.36,72,30&27. Section 12(5) ibid runs as under:-- "12(5): -No appeal shall be admitted for hearing unless the appellant deposits in cash with the High court and amount equivalent to the judgment debt or, at the discretion of the High court, furnishes security equal in value to such amount."
2. The controversy both as to facts and law is rather involved and would require to be dilated upon in some detail. This High Court Appeal filed by appellants, Larkana Sugar Mills Limited and the Pakistan Industrial. Development Corporation Limited, assails the order dated 10-5-1987 passed by a learned Single Judge sitting on the Original Side of this Court in Suit No. 353 of 1983 whereupon a decree in the amount of Rs.36,72,308.27 plus accruing interest at 14% per annum with quarterly rests was passed against the appellant No. 1 but the suit was allowed to proceed against the appellant No.2, both appellants being defendants in the suit. The present appeal was presented on 3-8-1987 and on 22-9-1987 a month's time was granted to the appellant No.1 to furnish the requisite security. However, the two appellants chose to prefer a Petition for Leave to Appeal in the Supreme Court of Pakistan, which later was converted into Civil Appeal No. 52-K of 1988 and wherein on 3-11-1987 an order of stay in relation to the directive issued on 22-9-1987 was passed.
3. During the pendency of the Supreme Court Appeal on 10-11-1987 the present High Court Appeal was adjourned sine die. On 14-11-1992 the Supreme Court dismissed the appeal but left the appellant(s) to furnish security if the relative appellant was of a mind to do so in this Court. Hence the above-referred application.
4. The question in controversy before us is as to what is meant by the expression "judgment debt" as that expression occurs in section 12(5) of the Banking Companies (Recovery of Loans) Ordinance, 1979 and whether such expression has any nexus with the time an appeal under the main provision of section 12 ibid comes up for admission.
5. Now the language of section 12(5) which in terms is mandatory, essentially enjoins that, as a condition for admission of an appeal under the earlier part of section 12, the appellant would be.
6. Required to "deposit" the "judgment debt", or alternatively at the discretion of the appellate Court, furnish security in lieu. This obviously is to be done at the time the appeal comes up for admission, payment or security as the case may be crystallizing then and, accordingly, the words "judgment debt" would have to be clothed with meanings, as applicable on the date the relevant appeal comes up for admission. It is the amount represented under that concept which would be required to be paid/deposited or alternatively security in lieu thereof, at the discretion of the Court, would come to be furnished.
7. However, section 12(5) is, in a manner of speaking, penal provision and has to be construed strictly and wherever benefit of doubt is required to be allowed such benefit must go to the appellant. In the circumstances of this case, it is no doubt true that the appeal is coining up for admission at this somewhat belated stage but then such has come to transpire in a definite background arising from a plausible controversy. The appellants' case was that no security or payment could be sought in relation to this appeal as the appeal did not arise from any judgment as such but from a mere order. That question was sorted out ultimately at the level of the Supreme Court though, as said, the finding went against the appellants. Nonetheless the fact remains that it was on 22-9- 1987 that due security was first required to be furnished and that obviously was done at a time when this appeal had initially come up for admission in accordance with section 12(51 aforesaid.
8. That the security was not furnished in time was occasioned on account of the litigation that followed and if security had been furnished then a non-controversial and obviously much lesser amount would have satisfied the conditions of the law. It is also not inconsequential that from 3-11- 1987 to 14-11-1992 the order requiring the appellant(s) to furnish security was subject to a stay in the Supreme Court. We, therefore, are of the view that the order dated 22-9-1987 still stands and holds the field. All that has happened is that the time within which the security was to be furnished has expired and we, in cases of hardship, are fully competent to A extend the time.
9. Accordingly, in the light of the foregoing discussion, we extend the time granted on 22-9-1987 by another month and require the relevant appellant or both of them, if they so choose, to furnish the requisite security of the amount due as on 22-9-1987, details whereof would be furnished by the learned counsel for the respondent within two weeks' time, the period allowed to the appellants) commencing from the date such details are furnished with advance: -copies to them. C.M.A.
10. 530/93 is in consonance disposed of.
11. Some argument was raised as regards C.MA. 801/93, which is an application under Order 41, Rule 5, C.P.C. For stay of execution pending appeal, and it was contended by Mr. Mansoorul Arfin, for the respondent, that if a stay of execution was to be granted that will have to be against security for the entire decretal amount, as on the date of grant of stay and such amount would be considerably larger than that for which we have directed the appellant(s) to furnish security under section 12(5) ibid. That may be so because sub-rule (3)(b) of Rule 5 in Order XLI, C.P.C. Makes it a requirement of law that no order for stay of execution would be made under sub-rule (1) or sub- rule (2) of the rule unless security is given by the appellant for due performance of the decree.
12. However, this application we are not disposing of today because notice thereof has not gone to the respondent and the application is not ripe. Let the office issue due notice on such application.