HAFIZUR REHMAN and 2 others vs Messrs FRESH FARMS (PVT.) LTD. and 6

ORDER

' ANWAR ZAHEER JAMALI, J.---This appeal, under section 22 of the Financial Institutions (Recovery of Finances) Ordinance, 2001, (hereinafter referred to as the "Ordinance of 2001"), preferred against the order dated 16-3-2005 passed by the Banking Court No,1 at Karachi, in Execution No,75 of 2003, is accompanied with an application under section 5 of the Limitation Act (C.M.A. No,932 of 2005) as admittedly the appeal is barred by limitation.

2. Mr. Khawaja Shamsul Islam, learned counsel for the appellants did not dispute that the certified true copy of the impugned order passed by the Banking Court on 16-3-2005 was supplied to the appellants on 17-3-2005, but no appeal was preferred by them within the prescribed period of limitation, as provided by section 22 of the Ordinance of 2001. In the application, C.M.A. No,932 of 2005, no explanation whatsoever has been offered on behalf of appellants for non availing of the remedy of appeal within the prescribed period of limitation but the plea urged is that the impugned order is void, thus no limitation will run against such order.

3. Mr. Khawaja Shamsul Islam, while arguing the listed application under section 5 of the Limitation Act has made reference to the previous litigation in the form of Suit No,512 of 1998 and contended that the Decree-holder/respondent No,2 had no authority to seek the disposal of execution application No,75 of 2003 by recording its satisfaction with the Judgment-debtor No,1, who was s stranger to such proceedings as held in the earlier litigation. He advanced his further arguments in line with the contents of the listed application in an attempt to make out a case that the impugned order is a void order, thus, the delay in the filing of appeal is liable to be ignored and the appeal is to be heard and decided by this Court on merits. In support of his arguments that period of limitation will not run against a void order, he placed reliance on the following cases:--

(1) National Bank of Pakistan v. Khairpur Textiles Ltd. And others (2001 CLC 1187)

(2) Jehan Khan v. Province of Sindh and others (PLD 2003 Kar.691)

(3) Ali Muhammad v. Hussain Bakhsh and others (PLD 1976 SC 37)

4. On the other hand, Mr. Muhammad Rasheed Khan, learned counsel for the respondent No,2, has supported the impugned order and submitted that the respondent No,2 Bank was not concerned with the internal disputes of respondent No,1, its Directors/management, and it was only concerned with the execution and satisfaction of the decree passed in its favour in Suit No,50 of 2002, which was subject-matter of execution application No,75 of 2003. He contended that once under the State Bank of Pakistan's package the decretal amount was paid to respondent No,2 bank, a statement to this effect was made by the counsel of respondent No,2 before the executing Court on 16-3-2005, whereupon the impugned order recording satisfaction of decree was passed, without reference to any of the directors/management/personnel of respondent No,1, thus the present appellants cannot be permitted to agitate or re-agitate I heir internal disputes before this Court in the form of present appeal or before the executing Court, which had limited jurisdiction confined to the satisfaction of the decree under execution.

5. We have considered the arguments advanced by the learned counsel and perused the case record.

6. Before we proceed further to examine the contention of Mr. Khawaja Shamsul Islam, with reference to the application of the appellants, under section 5 of the Limitation Act, it will be useful to reproduce hereunder the contents of the application under Order XXI, rule 2 C.P.C. Submitted by respondent No,2/Decree-holder before the Banking Court on 16-3-2005 and the impugned order passed thereon by the Banking Court, which read thus:-- "In the Banking Court No,1 at Karachi Ex.No,75 of 2003 --- ZTBL----D./Holder Versus ' Fresh Farms (Pvt.) Ltd. J/Debtor Application under Order (XXI), R.2 C.P.C.

' It is respectfully prayed that this honourable Court may kindly be pleased to record satisfaction of decree as the J/D No,1 under SBP package paid the entire amount as per agreement enclosed herewith.

' Karachi Advocate for the Decree-holder Dated: 16-3-2005 Order 16-3-2005 ' I have heard Mr. Muhammad Rasheed Khan Advocate for the Decree-Holder who has moved an application under Order XXI rule-2 C.P.C. For recording the satisfaction of the decree as the. J/d No,1 under State Bank of Pakistan package paid the entire decretal amount as per agreement. It has also been submitted by the Decree-Holder Advocate that Mr. Kaleem Ahmed Siddiqui, Manager of the Decree Holder has also signed the application under Order XXI rule-2 C.P.C. With regard to the entire decretal amount received by the Decree-Holder/bank. Such being the factual position on record and keeping in view that the Decree-Holder has received the entire decretal amount from the Judgment Debtor No,

1. I, therefore, allow the prayer made in the application under Order XXI rule-2 C.P.C., with the result the Execution Application No,75 of the 2003 stands disposed of as the decretal amount has been received by the Decree-Holder/bank.

(Sd.)

(Syed Yamin Yousuf)

' Judge"

7. A plain reading of the contents of the application dated 16-3-2005 and the order dated 16-3- 2005 would show that there is no reference of any Director of the respondent No,1 /Judgment- debtor either in the application or in the order and the satisfaction of the decree has been recorded by the Banking Court on the sole statement of the Decree-holder Bank to the effect that the decree in its favour has been satisfied by respondent No,1 under the State Bank of Pakistan's package. In such circumstances from no stretch of imagination, it can be said that the impugned order is a void order, so as to enable the appellants to overcome the fatal defect in their appeal, being barred by limitation. This is well settled principle of law that the executing Court has limited jurisdiction which revolves around ensuring the satisfaction of the decree under execution and no other extraneous dispute, having no nexus to the object of execution and satisfaction of decree can be agitated examined or adjudicated by it. Thus, the plea raised by the appellants in the application with the mala fide object of labeling the impugned order as void order has no nexus to the execution proceedings, nor can it be accepted by this Court for holding the impugned order as void.

8. In our view, when the Decree-holder Bank has appeared before the Banking Court with an application for seeking disposal of its execution application being satisfied through respondent No,1, the executing Court had no option but to pass an order in line with the one passed in the form of impugned order dated 16-3-2005. Thus, submission of Mr. Khawaja Shamsul Islam that the order dated 16-3-2005 be considered as void order, has no force. As regards the case-law cited by Mr. Khawaja Shamsul Islam, we may observe that indeed there is no cavil to the proposition of law propounded in these judgments, but in the facts and circumstances discussed above, these judgments have no applicability and the same will not come for the rescue of the appellants to overcome their negligence whereby their appeal against the impugned order became time barred. Admittedly, no other ground whatsoever has been urged by the appellants for seeking condonation of delay of more than five days in the filing of instant appeal, knowing well that delay of each and every day is to be explained to the satisfaction of this Court. Thus, there is no question of considering the request for grant of listed application on any other ground. This being the position, C.M.A.No,932 of 2005 is dismissed.

' Foregoing are the reasons for our short order passed today.