SABIHUDDIN AHMED, J.---The above three appeals directed against different orders passed by learned Single Judge of this Court have been heard together and are being disposed of together as they involve a somewhat common question of law. Before addressing the aforesaid question, however, it may be necessary to capitulate the basic facts relevant for understanding the controversy.
2. H.C.A. No,10 of 1994 arises out of an order of a learned Single Judge dated 20-12-1993 in favour of the respondent No,
1. It appears that the respondent No,1 had borrowed some money from the appellant Bank against the security of mortgage of immovable property. They filed Suit No,95 of 1977 on the original side of this Court under Order 34, Rule 4, C.P.C. And in the alternative for recovery of Rs,102,472.95 together with costs and interest. Judgment was pronounced in favour of the appellant on 22-3-1982 which was followed by a preliminary decree. A final decree was passed on 20-4-1986. The appellants, however, filed an application for execution only on 5-8-1991 i,e, more than 5 years after final decree. This application came to be dismissed vide impugned order dated 20-12-1993 on the ground of being time-barred which has been called in question through this appeal.
3. First Appeal No,69 of 1995 arises from Suit No,29 of 1984 which was filed by the appellant Bank against the respondent for recovery of Rs,499,043 in the Special Court (Banking) for Sindh and the respondent No,1 applied for leave to defend the same. The leave application of the respondent was dismissed by the learned Presiding Officer and consequently a final decree was made in favour of the appellants on 29-10-1987. About .5 years thereafter i,e, in October, 1992, the appellant applied for execution of decree, but the aforesaid application was also dismissed vide order of the Banking Court dated 13-7-1995, on the ground that it was barred by limitation. Aggrieved by the said order the appellant has preferred this appeal.
4. The facts of H.C.A. No,146 of 1995 appear to be that the appellant had advanced some money to the respondent No,1 and upon a suit for recovery of the aforesaid amount (Suit No,384 of 1983) obtained a final decree of Rs,2,754,971 against the respondent No,1 from this Court on 7-9-1988. The respondent failed to make payment despite attempts on the part of the appellant to recover and eventually the appellant preferred Execution Application No,53 of 1994 on 19-5-1994 i,e, after more than 5 years of the decree. The office raised an objection that it was barred by limitation, but such objection was overruled by a learned Single Judge on 18-9-1994, However, upon an application for review by the judgment-debtor the same learned Judge after detailed consideration of the legal position reviewed his earlier order on 17-4-1995 and dismissed the application on the ground that it was barred by limitation. This order has been called in question through the above appeal.
5. It may be observed that in all the above three appeals a common question of law i,e, whether the execution applications were rightly dismissed on account of statutory bar of limitation is involved. Admittedly such applications were filed after three years of the decree, but within six years thereof. In other. Words the common question involved appears to be whether Article 181 or Article 183 of the Schedule to the Limitation Act is applicable, in the circumstances.
6. Against the above-stated background it may be observed that the facts of 1st Appeal No,69 of 1985 are somewhat distinguishable from those in the other two appeals. Admittedly the decree was passed by the Presiding Officer Special Court (Banking) for Sindh and the execution application was also preferred before the same Court. Article 183 of the Schedule to the Limitation Act prescribes a period of six years for filing an application for execution of a decree of the High Court in the exercise of its "ordinary original civil jurisdiction" from the date when the right to enforce judgment, decree or order of the Court accrues. The other Article i,e, 182 relating to enforcement of decrees or orders of Courts other than this Court, prescribing six years' limitation was deleted from the statute book in 1973 upon the enforcement of Law Reforms Act, 1972. An amendment was made in section 48, C.P.C. Which provides that no fresh application presented after the expiration of six years from the date of decree shall be entertained.(b) Civil Procedure Code (V of 1908)--- A Five Members' Bench of the Honourable Supreme Court in the case of Mehboob Khan v. Hassan Khan Durrani PLD 1990 SC 778 has, however, authoritatively laid down that section , 48 does not apply to the first application for execution of a decree and the residuary Article 181 of the Schedule to the Limitation Act providing for a three years' limitation period is applicable to decrees made by Courts other than High Court. In the circumstances there could be no doubt that limitation for the A purpose, of making an application for execution could only be governed by Article 181 and no other provision of law. As such the application was plainly barred by limitation and rightly dismissed. This appeal, therefore, must fail.
7. With respect to the two other appeals, Mr. Sajjad Halai emphatically argued that the decrees having been made by this Court in the exercise of its "ordinary original civil jurisdiction" the appellants were under an honest and bona fide belief that Article 183 was applicable and an application for execution of a decree could be filed within six years of the date of decree. Learned counsel argued that the aforesaid Article continues to remain on the statute book and could not be assumed to be redundant.
8. Mr. Halai is indeed correct to the extent that Article 183 to the, Limitation Act still forms part of the law operative in Pakistan. The question, however, is whether the impugned decrees can be held to have been made by this Court in the exercise of its "ordinary original civil jurisdiction".
9. The above-quoted expression has been the subject-matter of a substantial amount of forensic controversy in different contexts through various judgments of superior Courts including this High Court and the Honourable Supreme Court of Pakistan. Indeed certain observations in judgments of this Court including Razzak v. Usman PLD 1975 Kar. 944; State Life Insurance v. S.A. Aziz Rizvi PLD 1986 Kar. 79 and of the Hon'ble Supreme Court in Ahmed Khan v. Chief Justice and Judges of the High Court of West Pakistan PLD 1968 SC 171 tend to support Mr. Halai's point of view. Nevertheless as correctly pointed out by Mr. Shafat Hussain learned counsel for the respondent No,1 in H.C.A. No,146 of 1995 the controversy has been put to rest by the Honourable Supreme Court in Mian Akbar Hussain v. Aisha Bai PLD 1991 SC 985 which is directly applicable to the matter in issue. In the aforesaid case their Lordships have held in unequivocal terms that while trying suits where the subject-matter exceeds a certain pecuniary value in the Districts of Karachi this Court exercises District Court jurisdiction as distinguished from the "ordinary original civil jurisdiction" of the High Court. Therefore, Article 183 is not applicable to applications for execution of such decrees; Article 182 having been repealed and section 48, C.P.C. Being not applicable to first application, the first application for execution of a decree must be filed within three years from the date of the decree in terms of the residuary Article 181. In view of the above authoritative pronouncement of the Honourable Supreme Court, which is binding on us, we must hold that the application in Suit No,99 of 1977 on the original side of this Court was filed beyond the prescribed period of Limitation. H.C.A.
No,10 of 1994, therefore, must be dismissed.
10. As regards Mr. Halai's contention that the appellants were under an honest and bona fide belief that the law provided a six years' limitation period for filing an execution application it could have perhaps been possible to condone the delay on the basis of bona fide mistake of law in view of the reported decisions some of which are at variance with each other. This, however, could have been possible only if a power to condone delay was available under the law and has been duly invoked.
Admittedly section 5 of the Limitation Act has not been extended to applications for execution of decrees C nor was Mr. Halai in a position to urge so.
12. The position in Suit No,384 of 1983, out of which H.C.A. No,146 of 1995 arises, however, appears to be somewhat different. Though this suit was also field on the original side of this Court the Banking Companies (Recovery of Loans) Ordinance, 1979 had come into existence by that time. Under section 6 of this Ordinance, a claim by Banking Companies against a borrower in respect of or arising out of a loan was triable exclusively by a Special Court. The expression "Special Court" has been defined in section 2(t) and in respect of cases where the outstanding amount of loan exceeds Rs,1 million has been stated to be "the High Court in the exercise of its original civil jurisdiction". Evidently, therefore, the matter could be tried by the High Court, not in its capacity as the principal Civil Court of original jurisdiction for the Districts of Karachi, but, as a Special Court under the Ordinance which was competent to try banking suits exceeding the pecuniary value of Rs,1 million for the entire province. The judgment of the Honourable Supreme Court in Mian Akbar Hussain's case PLD 1991 SC 985 would, therefore, not be applicable to this particular matter; Moreover, in view of the fact that jurisdiction was conferred by the Ordinance upon the High Court and not upon Judge acting as persona designate the decree was passed by this Court in the exercise of its original civil jurisdiction. We are, therefore, of the view that Article 183 would be attracted to the facts of this particular case.
13. In view of the above discussion H.C.A. No,10 of 1994 and 1st Appeal No,69 of 1995 are liable to be dismissed and H.C.A. No,146 of 1995 is liable to be allowed and the impugned judgment therein is recalled. The execution application in the last-mentioned case may be decided by the learned Single Judge on merits.