NATIONAL BANK OF PAKISTAN vs Mian AZIZ-UD-DIN and 7 others

' MAMOON KAZI, J.---This petition, for leave to appeal, calls into question the order of the Lahore High Court dated 9-4-1995, dismissing an appeal under section 12 of the Banking Companies (Recovery of Loans) Ordinance, 1979, filed by the petitioners.

2. Brief facts of the case are that, a suit for recovery of Rs,3,39,171.95, filed by the petitioners against the respondent, who is now represented by his legal heirs, was decreed ex pane on 18-1-1968. An application for setting aside the ex parte decree filed on behalf of the respondent was also dismissed on 24-11-1969. On 13-1-1973 an application for execution of the ex parte decree, dated 18- 1-1968 was filed on behalf of the petitioners, first before the District Judge, Lahore which was however, transferred to Special Court constituted under the Banking Companies (Recovery of Loans) Ordinance, 1979 on promulgation of the said Ordinance on 16-11-1980. The execution application was however dismissed by the Special Judge Banking vide order dated 6-12-1982, as time-barred.

3: Before the High Court, the contention on behalf of the petitioners was that the question as to limitation for filing an application for execution of a decree would be governed by section 48, C.P.C.

Which provided for a period of six years for execution of a decree. If such contention had been accepted the application for execution filed on 13-1-1973 would have been well within time, being filed within six years, but the contention was repelled by the High Court holding that the period of limitation, as originally applicable, would apply in the case, which was three years, and consequently the order of the Appellate Court was upheld.

3. It may be pointed out that before the Law Reforms Ordinance (XII of 1972) came into force, the question as to limitation for execution of a decree or order of a Civil Court was governed by Article 182 of the Limitation Act which provided for a period of three years for the same. An exception had however, been made in case of applications to which section 48 of the C.P.C. Applied. Section 48 had originally provided for a period of twelve years within which a fresh application for execution of a decree could be filed, but under the Law Reforms Ordinance, the said period of twelve years was substituted by six years and Article 182 was also deleted from the Limitation Act at the same time.

The position which emerged after coming into force of the Law Reforms Ordinance was that, no specific provision existed in the Limitation Act which could govern the period of limitation for filing an application for execution of a decree of a Civil Court. But section 48, C.P.C., as amended by the Law Reforms Ordinance, continued to occupy the field. However, reference to Article 181 of the Limitation Act shows that a period of limitation of three years is provided by the said Article for applications for which no period of limitation has been provided elsewhere in the said Act or by section 48 of the Code of Civil Procedure, 1908. It, therefore, follows that the question as to limitation for execution of decree of a Civil Court could only lie governed under Article 1,81 of the Limitation Act in cases where section 48, C.P.C. Does not apply. But in cases where section 48, C.P.C. Applied, the question would be governed by the said section.

4. It may be pointed out that a question as to interpretation of the said provisions had arisen before this Court in Mahboob Khan v. Hassan Durrani (PLD 1990 SC 778) and it was held as under:-- "As section 48, C.P.C. Is mentioned in Article 181 by way of exclusionary provisions obviously this Article has to be read with section 48, C.P.C., although the two provisions are independent and parallel provisions, with different scopes,' and objects. With the disappearance of Article 181 obviously no other Article of the Limitation Act is specifically attracted to the application for execution of the decree of a Civil Court, other than High Court. On the plain language of section 48, C.P.C. The object underlying that section was to provide an outer limit of time and prohibit the making of an order for execution of a decree on a "fresh" application "presented" after expiration of six years from the date of the decree etc. In order to see whether in the present case the limitation contained in section 48 is attracted or. Not it is necessary to determine whether execution was sought on a fresh application presented after the said period. The word "fresh" has been defined in the Oxford English Dictionary, Volume IV, to mean, inter alia, "New, recent" or "newly made". It, therefore appears that the application within the contemplation of the prohibition contained in section 48 was not the first execution application but any subsequent application, after such first application, which was presented beyond the prescribed period of six years. Construed in this light, and reading the two provisions together, it would appear that the effect of the amendment made by the Law Reforms Ordinance, 1972, is that the first application for the execution of the decree of a Civil Court would be governed by the residuary Article 181 prescribing a period of three years and since any subsequent or fresh application for execution would be governed by section 48, C.P.C., it would be out of the purview of Article 18.1 on its express terms. In some of the Indian decisions the expression "fresh application" has been so construed to mean application for execution after the disposal of the first execution application. See Yadorao Wasudeorao Pathak v. Govindrao Ramji Pant AIR 1939 Nag. 245, Lekshmi Amma Kochukutty Amma and another v. Raman Pillai Kumara Pillai and others AIR 1952 Travancore-Cochin 268 and Venlappa and others v. Lakshmikant Rao AIR 1956 Hyd.

7." #TBS [Vol. XXIX #TBE ' It was consequently held that the first application for execution of a decree would be governed by residuary Article 181 of the Limitation Act and rest of the applications made, thereafter, would be governed by the six years period of limitation prescribed by section 48, C.P.C. As would appear from the above observations, the expression "fresh application" occurring in section 48, C.P.C. Was also interpreted as not including the first execution application but any subsequent application, after the first application, that was presented before the Court. It, therefore, clearly follows that if no application for execution of a decree was made within the period of three years prescribed by Article 181, any application made thereafter, would be barred under the said Article and no benefit under section 48, C.P.C. Can be availed by the applicant in such a case. It is only after the first application is made within the period prescribed by Article 181 of the Limitation Act, that subsequent applications can be filed within the period provided by section 48, C.P.C. Consequently, the view taken by the High Court and the Special Court that the execution application filed by the petitioners beyond the period of three years was time-barred, is not open to exception.

5. In the result, leave is refused.