RANA BHAGWAN DAS, J.--- This judgment shall dispose of the aforesaid Constitutional petition as well as First Appeal arising out of an order, dated 12-3-1984 passed by the Special Court for Banking, Karachi in Execution Application No,161 of 1991 filed by the respondent National Bank of Pakistan against the petitioners/appellants pertaining to ex parte decree passed against Karachi Properties Investment Company Limited and its guarantors inclusive of the petitioners in Suit No,95 of 1981 filed for recovery of Rs,6,90,106.90.
2. By the impugned order Special Court for Banking dismissed the objections filed by the petitioners/judgment-debtors to the execution application and directed issuance of writ of attachment against their properties as incorporated in the application for execution. Interestingly on the same day there is another order passed by the learned Banking Court dismissing the objections filed by the petitioners for the reasons that they had failed to furnish any security equivalent to the amount awarded by the decree as ordered by the Special Court on 27-1-1992.
First Appeal No,7 of 1992 was directed against the order dismissing the objections of the appellants and allowing execution application whereas in Constitutional petition also identical orders were impugned. Both the cases were filed before this Court on one and the same day i,e, 11-3-1992.
3. During the pendency of the cases but after a lapse of more than six years petitioners/appellants moved a miscellaneous application under Order I, rule 10, C.P.C. seeking an order to implead the Executive Director, Banking Policy and Regulation Department, State Bank of Pakistan, for the reasons that the Government of Pakistan had appointed the proposed respondent as the Custodian under the provisions of Rehabilitation of Karachi Hotel Project, 1985 vide para.3 of the Martial Law Order 105 authorizing the Custodian to take over the management and administration of the project with all powers to determine and discharge its liabilities. A notice was ordered on this application but the record does not indicate whether a notice was, actually issued to the proposed respondent. Learned counsel for the petitioners appears to be under the impression that since these C.M.As. Were listed for hearing before D.B.I on the last date of hearing perhaps the notice was duly served. In any event, we have heard the learned counsel on this C.M.As. as well as the main case.
4. In view of the order proposed to be passed, it is not at all necessary to implead the Executive Director, State Bank of Pakistan as respondent in the proceedings because Karachi Properties Investment Company has not come forward with any appeal or a Constitutional petition. It is only at the behest of the guarantors for the repayment of loan/finance granted for the project that the present petition as well as appeal were filed before this Court. In any event, the decree-holder is entitled to enforce the decree against the guarantors and for the time being abandon to enforce it against the principal debtor whose assets now vest in the Custodian appointed by the Federal Government.
5. Adverting to the maintainability of the First Appeal, we find that section 12 of the Banking Companies (Recovery of Loans) Ordinance, 1979 provides an appeal by any person aggrieved by any order, judgment, decree and/or sentence of a Special Court' before this Court with the only exception that no appeal shall lie from an interlocutory order which does not, dispose of the entire case before the Special Court. Needless to over-emphasize, the impugned order passed in this case has decided the fate of execution application by dismissing the objections raised by the petitioner/J.Ds. culminating in a direction for issuance of writ of attachment with regard to their properties. After passing of this order, the petitioners are left with no defiance before executing Court; therefore, for all intents and purposes, it is a final order which disposes of the execution before the Court as a whole. In our view, the order impugned before us does not tantamount to an interlocutory order barring the maintainability of an appeal. Having held above, we are of the view that since the appeal is found to be competent before this Court, petitioners cannot maintain Constitutional petition with regard to the same order as alternate and effective remedy is provided by law which has been actually availed of in this case.
6. Learned counsel for the appellants pointed out that apart from other objections taken before the Special Court main objection pertains to the bar of limitation inasmuch as the decree was passed on 29th February, 1984 whereas execution application on which the impugned order passed was filed before the Court on 22-6-1991. Mr. Tasawar Ali Hashmi, learned counsel for respondent/ decree-holder sought to agitate that First Execution Application No,42 of 1987 having been withdrawn decree-holder could maintain the fresh application under section 48, C.P.C. and it is not hit by subsection (1) of section 48, C.P.C. For the sake of proper appreciation of controversy with regard to the limitation, section 48, C.P.C. may be reproduced hereunder:-- "48. Execution barred in certain cases.--- (1) Where an application to execute a decree not being a decree granting an injunction has been made, no order for the execution of the same decree shall be made upon any fresh application presented after the expiration of six years from---
(a) the date of the decree sought to be executed, or
(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.
(2) Nothing in this section shall be deemed.--- (a) to preclude the Court from ordering the execution of a decree upon an application presented after the expiration of the said term of six years, where the judgment-debtor has, by fraud or force, prevented the execution of the decree at some time within six years immediately before the date of the application; or
(b) to limit or otherwise affect the operation of Article (183 of the First Schedule to the Limitation Act, 1908)."
7. A plain reading of the above quoted provision of law tends to show that the period of six years prescribed in this provision of law shall commence from the date of the decree sought to be executed which time is not enlarged by reason of withdrawal of the first execution application.. We are of the view that fresh application could have been maintained within an aggregate period of six years from the date of decree and not from the date of dismissal of the first application. In case it is so, the fresh/present application filed before the Executing Court is patently beyond time and hit by this provision of law. Learned counsel for the decree-holder/respondent has not been able to cite any provision to the contrary in support of his submission that the second application could be maintained within a period of six years from the date of dismissal of the first execution application.
Obviously the provisions of clause (b) of subsection (1) of section 48, C.P.C. are not attracted in the case in hand. Even the provisions of subsection (2) clause (a) cannot be invoked because no act of fraud or force preventing the execution of decree at the behest of the petitioners has been urged.
Reliance is placed on Full Bench judgment of the Supreme Court reported as Mehboob Khan v.
Hassan Khan Durrani PLD 1990 SC 778.
8. For the aforesaid facts and reasons, First Appeal No,7 of 1992 is allowed and impugned order set aside while Petition No,574 of 1992 dismissed as incompetent and improperly constituted.