HABIB BANK LIMITED vs MUHAMMAD ABBAS and 2 others

ORDER

' SAIDUZZAMAN SIDDIQUI, ACTG. CJ.----The petitioner is seeking leave to appeal against the judgment of learned Division Bench of High Court of Sindh, dated 18-6-1998, whereby H.C.A. No.16 of 1991 filed by the petitioner-Bank was dismissed and the judgment of learned Single Judge passed in Suit No.597 of 1983 declining to pass a final decree in the suit instituted under Orders XXXIV and XXXVII, C.P.C., read with Banking Companies (Recovery of Loans) Ordinance, 1979 (hereinafter to be referred as 'the Ordinance'), was upheld.

2. The relevant facts of the case are that the petitioner brOught a suit for recovery of Rs.11,22,262.13 under the Ordinance. The respondents applied for grant of leave to defend the suit under Order XXXVII, C.P.C. Which was refused and accordingly, preliminary decree was passed in the suit on 29- 1-1984. Under the preliminary decree, the defendants were allowed 6 months' time to pay the decretal amount. It appears that in spite of the default committed by the defendants no application was filed by the petitioner for passing final decree until 5-11-1988 when C.M. No.545 of 1989 was filed praying for passing of a final decree against the respondents. The learned Single Judge after hearing the parties, came to the conclusion that the application for passing final decree having been made after expiry of a period of 3 years from the date fixed under the preliminary decree, for payment of the amount, the application was time-barred and accordingly, refused to pass final decree in the case. The appeal preferred by the petitioner before the learned Division Bench of the High Court also failed giving rise to the present petition.

3. Mr. A.R. Akhtar, the learned Advocate Supreme Court for the petitioner contended before us that the learned Judges of the Division Bench failed to take into account that in terms of Rule 4 of Order XXXIV, C.P.C., the Court is fully empowered, on good cause being shown and upon terms to be fixed by the Court from time to time at any time before the final decree is passed, to extend the time fixed for payment of the amount under the preliminary decree. It is further contended by the learned counsel that the learned Judges failed to take into account that the petitioner having applied for passing of final decree in the year 1988, will be deemed to have condoned the default and in any case, the respondents having made the payment from time to time, it could not be said that the time fixed in the preliminary decree could not be extended. Mr. A.R. Akhtar also contended that reading Rules 4 and 5 of Order XXXIV, C.P.C. Together, it is quite clear that no time limit is applicable for making an application of passing of a final decree in a case where a preliminary decree has been passed and as such the conclusion of the learned Judges that under Article 181 of Limitation Act, the application filed by the petitioner was time-barred, is totally erroneous and based on misconception. It is further contended by the learned counsel that after passing of the preliminary decree, the proceedings in the suit did not terminate or come to an end and the suit remained pending till such time a final decree is passed, and therefore, the question of Article 181 of Limitation Act being applicable to the application filed by the petitioner did not arise.

' The contentions raised by the learned counsel for the petitioner require examination and we, accordingly, grant leave to appeal to consider the same.