In this appeal the decree-holder bank (United Bank Limited) has challenged order, dated 3-9-1990 of the Special Court Banking Companies N: W.F.P., Peshawar whereby the Execution Petition of the decree --holder Bank was dismissed with no orders as to costs.
2. The facts of the case in brief are that a consent decree was passed in terms of compromise for Rs.12,28,000 on 12-5-1977 by the Senior Civil Judge, Peshawar against the respondents with future interest at the rate of 4% above the bank rate at a minimum of 13% per annum with quarterly rests in favour of the appellant bank. In case of default in payment of instalments as stipulated in the compromise a decree for additional interests at the rate of 2% per annum on the overdue amount was also granted. The-decree-holder Bank preferred execution petition bearing Number 102/10 on 28-9-1977 which was dismissed in default on 22-11-1983 by the Special Judge Banking Companies.
The decree---holder Bank also instituted a fresh execution petition Na.31/10 on 4-4-1984. The judgment-debtors submitted an objection petition before the executing Court on 31-1-1988 praying for dismissal of the execution petition as barred by time apart from other pleas. The execution proceedings were kept in abeyance and the decree-holder Bank was directed to submit its reply.
The decree---holder Bank in its reply raised a preliminary objection that the objection petition was not maintainable in view of the provisions contained in Order 21, Rule 23-A, C.P.C. As the judgment- debtors had not deposited the decretal amount in Court. The learned Special Judge Banking Companies vide his order dated 1-8-1989 maintained the objection of the decree-holder Bank by holding that the judgment-debtors had not deposited the decretal amount nor asked for furnishing any security for its payment. The objection petition was dismissed as not maintainable.
However, the learned Special Judge directed the counsel of the parties to argue. The point of limitation and ultimately vide the impugned order dated 3-9-1990 dismissed the execution petition as time---barred holding that under section 48 of the C.P.C. The maximum time for the execution of a decree was six years and after the expiry of such period a fresh execution petition could not be entertained as according to the learned Court the execution petition was instituted on 4-4-1984 after the expiry of the six years of the passing of the decree on 12-5-1977. The decree-holder Bank feeling aggrieved has preferred the present appeal. We have heard the counsel for the parties and gone through the record with their assistance.
3. Counsel for the appellant Bank argued that the question of limitation raised firstly by the respondents judgment-debtors and ultimately by the learned Executing Court was not decided in accordance with law. The learned executing Court has relied on section 48, C.P.C. Which prescribes a period of six years for execution of money decree. In the impugned judgment a plethora of case- law has been referred which was relied upon by both the parties, but the judgment of this Court published as 1988 CLC Peshawar page 30 found favour with the learned Special Judge and relying thereon the execution petition of the appellant Bank instituted on 4-4-1984 was dismissed for the reason that the decree was passed on 12-5-1977 and as such the petition was time-barred.
Counsel for the appellant Bank argued that this judgment was not applicable to the facts of the present case because the decree in the present case was passed on the basis of a compromise and was to be paid in instalments as set down in the compromise deed available on the file of the original case bearing No.170/1. He further argued that section 48-B, C.P.C. Was applicable and that according to the terms of compromise the last instalment was to be paid by the judgment- debtors in March/April 1979 in addition to the further payments on account of the future interest.
Calculating the period of limitation he contended that even if the time of six years is reckoned from March 1979 the period of six years would have expired in March 1985 whereas the last executing petition was instituted on 4-4-1984 and was therefore well within time. In support of his contention he relied on the judgment reported in PLD 1968 Karachi page 31 and PLD 1961 Peshawar page 5.
The counsel for the appellant Bank also took us through subsection (2) of section 48, C.P.C. And argued that on account of the conduct of the judgment-debtors the decree could not be executed for a long time and, therefore, Court was not precluded from execution of the decree after the expiry of the term of six years. In this context he referred us to an application submitted by the judgment-debtors in Execution Petition No. 102/10 on 6-6-1978 praying that the judgment-debtors be given time to make objection petition against attachment proceedings and that further proceedings regarding execution of the decree be stopped. The executing Court stopped further proceedings and ultimately dismissed the application of the judgment-- debtors on 14-5-1979 holding that about one year opportunity was given to the judgment-debtors but no objection petition was preferred. It was further pleaded that since the objection petition was unnecessarily delayed, as such a notice of the auction of the attached property was ordered to be issued.
The counsel for the appellant Bank finally argued that 22-11-1983 was in fact not the date of hearing in the execution proceedings as on the previous date the case was adjourned on Reader's note and no one was present on that date and, therefore, there was no obligation for any one to appear in the Court on 22-11-1983 and the order of dismissal in default passed on this date was non- existent in the eyes of law and even on this account the impugned order and order dated 22-11- 1983 passed in Execution Petition No.102/10 were liable to be set aside and the execution petitions should have been treated as pending.
4. From perusal of the order-sheet in execution proceedings bearing No.102/10 it would transpire that another objection petition had also been preferred and on 27-10-1979 it was ordered that the execution petition should come up for hearing along with the objection petition on 9-12-1979. On 9- 12-1979 in view of the promulgation of the Banking Companies (Recovery of Loans) Ordinance, 1979 the execution file was transferred to the Court of Mr. Muhammad Alam Khan Kundi, Special Judge and the parties were directed to appear before that Court.
According to the order-sheets of the Special Judge, Peshawar the execution petition was adjourned from one date to another along with the objection petition until 28-7-1980 when the said proceedings were transferred to the Court of Mr. Azam Khan appointed as Special Judge Banking Companies, and the file was thus transferred on 18-9-1980 to that Court.
The Special Judge issued notices to the parties. The decree-holder was represented on 13-10-1980 and ultimately on 3-12-1980 the terms of auction in respect of Universal Flour Mills were issued. The notice could not be served for several dates when ultimately Jamaat Ali Shah judgment-debtor appeared before the executing Court and conceded to settle the payment of the decretal amount.
On 28-2-1981 the counsel for the judgment-debtors agreed that House No.42, Nishtarabad already attached be auction and process in this respect was issued. According to the order-sheet of 26-3- 1981 the notice of auction was served but on that date one Salahuddin real brother of Zia Farhat Awan judgment-debtor No.2 who is also brother-in-law of judgment-debtor No.1 filed an objection petition claiming the attached house to be his property. The execution petition was again adjourned without any further proceedings along with objection petition to 6-4-1981 and similarly the execution proceedings, remained pending without any progress until 8-7-1981 when the objection petition was allowed to be withdrawn and it was directed that application for auction be made before the next date. The application was, however, submitted on 18-7-1981 and the auction of the property was ordered through official auctioneer Mr. Abdul Qayyum Mazhar, Advocate.
4. From perusal of file No.8/11 we have also observed that Mr. Salahuddin preferred yet another objection petition on 26-7-1981 challenging the attachment of house No.42, Nishtarabad. This 'objection petition was contested and was ultimately dismissed by Special Judge Banking Companies on 17-11-1981 fixing cost of pleader as Rs.500.
5. According to the order-sheet dated 31-8-1981 the auction could not be held and the auctioneer suggested that the proclamation be issued by beat of drums and through publication in the daily Mashriq. Accordingly the learned Special Judge made similar orders and fixed the date of auction as 8-10-1981. As per the report of the auctioneer. The auction could not take place and fresh orders for auction were passed on 17-10-1981 fixing the date of auction as 24-11-1981 on the spot. According to the order-sheet dated 2-12-1981 again the auction did not take place and fresh auction orders were issued on 2-12-1981 with the direction that the auction be publicised through Daily Mashriq, Peshawar, Daily Khyber Mail Peshawar and Daily Jang Rawalpindi, for 23-1-1982. Even then the auction did not take place and according to the order---sheet of 25-1-1982 it was directed that the auction should be held at the Court premises as nobody comes to the spot because the judgment-debtors arc influential persons as was reported by the auctioneer. The date of auction at the Court premises was fixed as 4-3-1982 and this time again publicity was to be made of the auction in Daily Mashriq Peshawar and Daily Nawa-i-Waqt, Rawalpindi. The auction did not take place even on this date as is evident from the order-sheet dated 6-3-1982. In the meantime the Presiding Officer was transferred and the case was adjourned on Reader's note until 13-2-1983 when the new Presiding Officer summoned the parties for 5-3-1983. According to the order-sheet of 12-4-1983 the judgment-debtors were served but did not attend the Court and Mr. Salahuddin submitted the address of the judgment debtors at Lahore. However, the learned Judge again ordered the auction of the attached house on 18-5-1983. On 23-5-1983 the learned Special Judge recorded his order that nobody participated in the auction and that Mr. Salahuddin has also filed an objection petition. It was further observed that the proceedings in the execution are stayed and the execution petition was ordered to come up along with the objection petition on 30-5-1983. The execution petition was adjourned on several dates along with the objection petition. However, on 12-9-1983 the objection petition of Salahuddin was dismissed and fresh order for auction of the attached house was issued for 5-11-1983 through the beat of drum and publication in Daily Mashriq and case was adjourned on Reader's note. No one was present from any side on that date.
However, it was recorded by the Reader that warrant of auction was returned unserved and the case was adjourned to 22-11-1983. On that date the learned Special Judge dismissed the execution petition in default as no one was present at the time of hearing.
6. It is interesting to note that another objection petition by one Mst. Shireen Taj was instituted on 6- 7-1978 and available in file No.3/11 claiming that the was owner of half of the attached property.
This objection petition remained pending uptill 15-12-1983 and was accepted and half of the attached property situated at Dabgari Bazar, Peshawar was ordered to be released. This objection petition remained pending even after the dismissal of the execution petition in default on 22-11- 1983. The counsel for the appellant decree-holder Bank argued that the conduct of the judgment- debtors, their relatives and others has in fact delayed the progress in the execution proceedings which amounted to playing fraud upon the Court. The time spent in such objection has to be deducted from the time limit of six years for execution of a decree. He also relied on PLD 1967 SC page 344 wherein it has been held that Court was not precluded from ordering execution presented after requisite time. In this judgment the word fraud used in subsection (2) of section 48, C.P.C. Has also been explained and held that fraud includes any improper means resorted for preventing execution.
Reliance can also be made on a D.B. Judgment reported in AIR 1955 Madras page 67 wherein it has been held that pending an application for execution of a decree if a third party claimant puts in a claim petition on the ground that the property attached does not belong to the judgment-debtor, the decree cannot be executed and the pendency of the petition operates as stay of the execution of the decree in order to attract section 15 of the Limitation Act.
7. The learned counsel for the judgment-debtors supporting the impugned order, argued that the decree was passed on 12-5-1977 and the latest execution petition was instituted on 4-4-1984 which was absolutely time-barred as it was instituted after the expiry of six years of the decree.
Regarding the decree being a decree payable by instalments, the learned counsel for the respondents argued that as the decree-holder Bank had opted to execute the decree much prior to the last due instalment, therefore, the concession contained in section 48, subsection (2), C.P.C.
Was no more available in favour of the appellant decree-holder Bank.
The learned counsel relied on a D.B. Judgment of Karachi High Court published in 1985 CLC page
679. He referred to the citation on page 685 saying that since the decree was for payment of the amount by instalments the time would run from the day when the first instalment became due and payable. It was held by the Court that the proposition cannot be accepted for in a case where the decretal amount is payable by instalments in case of default the whole decretal amount becomes due and payable on each default the time would run from the date of such default unless there is waiver or condonation of default. In that case, however, time for payment of instalment would run from the date of each default and, therefore, to recover the instalments under the decree the application must be filed within the time provided under the law from the date of each default, for, if, it is held otherwise it would have the effect of extending the period of limitation for the whole decretal amount or the instalment in default, as the case may be, beyond the prescribed period for which there is no warrant in the Limitation Act. The learned Judges of the Karachi High Court ultimately held that in case of default in payment of any two instalments the whole decretal amount would become payable at once. Indeed it was pursuant to this provision that the appellant has filed the execution application on 11-10-1968 and 18-12-1968. The appeals were allowed and the case was remanded to the Single Judge for decision on merits in accordance with law.
The judgment cited by the learned counsel for the respondents is not applicable to the facts of the case as narrated above which clearly establishes that the learned Executing Court had not properly applied its mind to decide the point of limitation considering the provisions of section 48 and ignoring subsection (2) of section 48 which is enabling provision for a Court of law. Moreover, the learned counsel for the respondent judgment-debtors has not been able to rebut the argument of the counsel for the appellant Bank regarding the time spent in delaying tactics by the judgment-debtors, their relatives and third parties. The decree was passed on 12-5-1977 and could have been executed uptill 11-5-1983 even if we take the delay of execution by the conduct of the judgment-debtors when they applied to the executing Court on 6-6-1978 that the judgment- debtors wanted to file objection petition and prayed for postponment of the execution proceedings and the judgment-- debtors did not file any objection petition and the learned Executing Court dismissed the said plea of the judgment-debtors on 14-5-1979. Now if we ignore the other objection petitions and consider the time spent at the instance of the judgment-debtors which comes to about 11 months and 10 days and give this concession to the decree-holder Bank the time limit of six years expiring on 11-5-1983 will be extended uptill 21-4-1984 and as such the execution petition instituted on 4-4-1984 shall be well within time. It is pertinent to observe that in the case reported as 1985 CLC page 679 no such situation was involved and it was a case strictly on the point of limitation in view of default in instalments only and would not be attracted to the facts of the present case.
8. There is no dispute that under section 48, C.P.C. No order for the execution of a decree shall be made upon any fresh application presented after the expiration of six years from (a) the date of decree sought to be executed; (b) where the decree or any subsequent order directs any payment of money or the delivery of any property to be made at a certain date or at recurring periods, the date of the default in making the payment or delivery in respect of which the applicant seeks to execute the decree. The term "an application to execute a decree" has been held to be a substantive application under Order 21, Rule 11, C.P.C. Or any other application whereupon proceedings in execution are commenced. It has been consistently held that the application referred to in the said section does not refer to ancillary or incidental applications and, therefore, any application made in continuation or with reference to an application for execution of the decree would not be hit by the principles of limitation if the substantive application for the execution of the decree has been made within the prescribed limitation. In this view reference may be made with advantage to Surrendra Nat Datta v. Mohini Mohan Chakarwarti (AIR 1954 Calcutta 73). Similarly in B. Sheewa Shankar Dass and others v. Mufti Syed Yousaf Hassan AIR 1934 Allahabad 481 a Full Bench of the Court held that a subsequent application filed beyond 12 years of the decree was not a fresh application but was in continuation of the original application. A similar view was expressed in Thaker Parsad v. Faqirullah in the case reported as (106 PC 1894) holding that the first application notwithstanding that the order striking it off had been made was not annulled but afforded a fresh starting point for limitation. In the case in hand we have given our considerable thoughts to the point involved regarding limitation and we are firm in our view that since the original application for the execution of the decree had been made within time and was dismissed for default, the subsequent application moved for the execution of the same decree was the continuity of the previous proceedings and the subsequent application being an ancillary one would not be hit by the limitation.
9. However, what we have observed with pains is the manner in which the application for the execution of the decree was dismissed for default. It so happened that the learned Special Judge on 12-9-1983 that only counsel for the decree-holder was present that he dismissed the Objection Petition No.10/11 and ordered the auction of the property attached which was to be held by the Nazir of the Court on 5-11-1983 after due publicity by beat of `drum' in the locality and publication in the daily Mashriq Peshawar and it was ordered that the report of the auction shall be submitted before the Court on 12-11-1983. On 12-11-1983, however, the learned Presiding Officer was on tour and the Reader of the Court recorded the following note:-- "None present from the both sides. Warrant of auction returned unserved. The Presiding Officer is on tour therefore, the case adjourned to 22-11-1983."
On 22-11-1983 the learned Special Judge made the following order:-- "None present. Waited up to 12-30 p.m. Auction could not be held as nobody came forward to bid, hence dismissed in default. To be consigned after completion:"
The question that falls for determination is whether the date earlier fixed by the Court i.e. 12-11-1983 was a date fixed for hearing because on that date only the report of the auction was to come up before the Court. Secondly, whether dismissal of the petition for default of the parties to appear in Court on the note of the Reader was a legal order and can be upheld. No doubt, the provisions of Order 9, C.P.C. Have been consistently held not to be made applicable to the execution proceedings because the law provides for submission of a fresh application even after the period of limitation as explained above, but the basic principles and scheme of the Civil Procedure Code cannot altogether be ignored where once the Court comes to the conclusion that the order was passed in an unmindful and mechanical manner ignoring all the procedural requirements of the Code. Be that as it may whether the date fixed by the Special Judge for 12-11-1983 was the date of hearing and whether the provisions dealing with this aspect of the matter are applicable or not.
The astonishing feature of the matter is that the date on which the petition for execution was dismissed was not the date fixed by the Court. Instead as already observed the date of 22-11-1983 was fixed by the Reader of the Court. Under Rule 5 of Order XVII, C.P.C. When on any day the Presiding Officer of the Court is absent by reason of illness or any other cause, the parties to the suit or proceeding set down for that day (notwithstanding the knowledge that the Presiding Officer would be absent) shall appear in the Court in the Court House on that day and the ministerial officer of the Court authorized in that behalf shall hand over to the parties slips of paper specifying the other date fixed for proceedings with the suit or proceeding and signed by him. In the case in hand as would appear from the note of the Reader none of the parties was present. On the earlier date i.e. 12--9-1983 only counsel for the decree-holder was present. There is nothing in the order of the Special Judge dated 12-9-1983 that notice was issued to the other party. On the other hand the Reader recorded the absence of both the sides. Thus no date had been given to the parties by the Reader of the Court much-less in the manner prescribed by Rule 5 of Order XVII, C.P.C. Nor he issued notices to the parties for the next date of hearing i.e. 22-11-1983. In Nosheri Khan appellant v.
Said Ahmed Shah respondent, 1983 SCMR 1092 it was held that "in this case admittedly the appellant was not present either on 4--9-1976 when the case first came up for hearing nor was he present on 8-9-1976 when the Moharrir fixed the case for 16-9-1976. In this situation, there was consequently no question of any slip being handed over to the appellant specifying the next date fixed for hearing of the case. Thus, Rule 5 of Order XVII, C.P.C. Was not complied with and the order of the District Judge dismissing the suit for non-prosecution on 16-9-1976 was illegal". It was further observed "However, since the learned District Judge was absent on 4-9-1976 and only the Moharrir was present who obviously could not dismiss the appeal, but required the parties to come on a future date when the learned District Judge was expected to be in attendance and deal with the matters. The date given by the Reader might have become the "date fixed for proceedings with the suit or proceedings if the parties were handed over the slips of paper specifying the said other date. Without complying with this condition, which was of mandatory nature, it was not possible to dismiss the appeal on the ground that the appellant had failed to appear on the date fixed for the hearing of the appeal".
10. In the present case as well it is clear from the note of the Reader that none of the parties were in attendance and the question of handing over to parties slips of paper specifying the other dale fixed for proceedings did not arise and in the absence of compliance of the mandatory requirements of Rule 5 of Order XVII, C.P.C. Did not authorize the learned Special Judge to dismiss the execution petition for default of the parties. The order of the learned Special Judge dismissing the execution petition for default is also not warranted by law on another aspect as well. The date on which the Presiding Officer was absent and the next date which was fixed by the Reader of the Court were meant for the filing of the report of auction. At the most on the date so fixed the Court may conduct the same proceedings as scheduled on the date Judge was absent and the case adjourned. As has been observed earlier the date was fixed for the report of the Nazir regarding auction. The learned Court could, therefore, dispense with the said report but not to proceed to dismiss the petition. In Ziaul Haq Hashmi v. Faiz Ahmad and another 1984 CLC 1491 it was held that "therefore, notwithstanding the fact that the Reader had adjourned the suit to 1-10-1978 for the making of an appropriate order by the Presiding Officer, the said date would be deemed to be the date for filing of written statement and thus not the date of hearing. If a contrary view is taken it will amount to clothing the ministerial staff with an authority to defeat the said provisions of law by making order like the one involved in this case".
In view of the above we shall accept this appeal with costs and setting aside the impugned order dated 3-9-1990 hold the Execution Application No.31/10 by the appellant Bank within time. We rather further hold that Execution Petition No. 102/10 had been filed within time and was wrongly and illegally dismissed in default on 22-11-1983 and we shall consequently hold that the said Execution Application No. 102/10 continues to be dormant and pending and to be continued and there was no legal obligation on the appellant Bank to submit a fresh execution application.