BASHIR AHMAD And Others vs Messrs HABIB BANK LTD.

MUNIR A. SHEIKH, J.--This appeal is directed against the judgment and decree dated 27-10-1981 passed by the Special Judge Banking, Lahore.

2. The appeal is barred by time. The appellants have moved an application under section 5 of the Limitation Act for condonation of delay.

3. We have heard learned counsel for both the parties. The impugned judgment and decree was passed by the learned trial Court on 20-10-198. The period of limitation prescribed for appeal under the Banking Companies (Recovery of Loans) Ordinance, 1979, is 30 days. Application for obtaining certified copies of judgment and decree under appeal was made on 16-12-1981 i.e. Long after the expiry of period of limitation.

4.Learned counsel for the appellants submitted that Khurshid Ahmad deceased who was impleaded as one of the defendants being one of the partners of the Firm had died on 24-12-1978 whereas in the suit filed on 29-9-1981 he was impleaded as one of the defendants. According to him even the deed of pledge was alleged to have been executed by him on 26-12-1978 i.e. After his death, therefore, the appellants as his legal heirs when came to know about the passing of the decree made an application for copies and filed the appeal. The question which arises for consideration is whether section 5 of the Limitation Act is applicable to this case. Section 29 of the Limitation Act, provides that where under a special or local law a different period of limitation has been prescribed, the provisions of section 5 of the Limitation Act, would not be applicable. Under the ordinary law of limitation for regular first appeal before this Court a period of 90 days has been prescribed. The present case is governed by the provisions of Banking Companies (Recovery of Loans) Ordinance, 1979, which is a special law A and prescribes a period of 30 days for regular first appeal before this Court against judgment and decree passed by the Court established under the Ordinance. It is, therefore, a case where special law has prescribed a different period of limitation, as such, by operation of provisions of section 29 of the Limitation Act, section 5 of the Limitation Act is not applicable. The application of the appellants under section 5 as such is not maintainable.

5.Confronted with this difficulty learned counsel for the appellants tried to overcome it by arguing that since the decree has been obtained against the appellants through fraud and misrepresentation and that it was a case of concealment, therefore, benefit of section 18 of the Limitation Act be given to the g appellants and their application be considered as if made under section 18. Section 18 is applicable only to suits and applications and not to appeals. We have also noticed that the suit was filed against M/s. Bodla Cotton Ginning and Pressing Factory and M/s. Bodla Ice Factory both partnership firms alongwith respondents Nos.2 to 4 and Mian Khurshid Ahmad who were impleaded as partners of these firms. In addition to his being partner of the said firms Mian Khurshid Ahmad deceased was also alleged to have pledged his property for payment of the amount obtained by the said firms as loan from the Bank. Both the firms have been joined by the legal representatives of Mian Khurshid Ahmad as appellants in this appeal. There is no sufficient ground for not preferring the appeal by the said two firms within prescribed period of limitation of 30 days.

6. For the foregoing reasons we hold that the appeal is barred by time which is hereby dismissed as such. There will be, however, no order as to costs. It may be observed that the legal representatives of Mian Khurshid Ahmad if they are so minded may seek any other remedy available to them under the law on the ground of alleged fraud.