ZARI TARAQIAYATI BANK LTD. through Manager Versus ZAFAR PERVAIZ
ORDER
A suit for recovery of money filed by the appellant‑Bank was decreed against the respondent on 21‑1‑1996. On 17‑5‑2001 the first execution application was filed. This application has been dismissed by the learned Executing Court being barred by time vide order, dated 15‑9‑2004.
2. Learned counsel for the appellant contends that in the judgment in the case of United Bank Limited Bank Square Branch; Lahore v. Fateh Hayat Khan Tiwana and 7 others 2004 CLD 223 relied upon by the learned Executing Court, a Division Bench had held that the limitation for the first application would be three years whereas in the case of National Bank of Pakistan v. Messrs, Riaz Ahmad & Sons (Regd.) through Managing Partner and 2 others 2002 CLD 787, a Division Bench of this Court had held that the said limitation would be six years. The precise contention is that the conflict needs to be resolved.
3. We have given some thought .to the contention of the learned counsel. It will be seen that before the Executing Court, it was stated that the application could not be filed within three years as the appellant was not so advised. The plea holds little water and has not been reiterated by the learned counsel.
4. Now, admittedly, the decree was passed on 21‑1‑1996 and the first application was filed for its execution on 17‑5‑2001. Fortunately, a judgment delivered by a Bench comprising of five Honourable Judges o If the Honourable Supreme Court of Pakistan in the case of Mahboob Khan v. Hassan Khan Durrani PLD 1990 SC 778 is available. The leading opinion was recorded by Mr. Justice Zafar Hussain Mirza, J. (as his Lordship then was). The contention before the Honourable Supreme Court was that the appellant was insisting that section 48, C.P.C. would govern the first application as well and the limitation would be six years. C. The contention was rejected and it was laid down in absolutely unambiguous term (at page 786 of the report) as follows:‑‑
"The position that emerges from the above discussion is that, as already stated, the first application for execution of a decree would be governed by the residuary Article 181 and the rest of the applications made, thereafter; will be governed by the six years time limit prescribed by section 48. Although the original purpose underlying section 48, read along with Articles 181 and 182 of the Limitation Act, before the amendment of the law was to provide maximum limit of time for execution of a decree. But in the changed position as a result of Law Reforms Ordinance, the only effect of section 48 would be to provide limitation for subsequent execution applications after the first one. The result would be that if no application at all is made within the period prescribed by Article 181, the execution application made, thereafter, would be barred under the said Article and as such there would be no occasion to avail of the benefits of the extended 'time provided by section 48, C.P.C."
5. Since no, application for execution was filed within three years prescribed by Article 181 of the, Schedule to the Limitation Act, 1908, the application filed by the appellant‑Bank after the expiry of the said period would be barred by time and section 48, C.P.C. would have no application Whatsoever. The E.F.A. is accordingly dismissed inn limine.
M.I./Z‑59/L E.F.A. dismissed.