HABIB BANK LTD. vs ZULFIQAR ALI KHAN and others

' A suit filed by the petitioners-Bank against respondents Nos. 2 to 6 for recovery of Rs,4,19,436.17 was decreed in favour of the petitioners by a learned Special Judge, Banking Court, Lahore on 20- 6-1981 while a final decree was passed on 30-9-1981. On 30-5-1997 the petitioners filed an execution petition and made an application to the learned Executing Court to issue a process for execution of the decree. Vide order, dated 23-7-1997 the learned Executing Court refused to issue the process and to dismiss the execution application as time-barred.

2. Learned counsel for the petitioners contends that the learned Executing Court acted without lawful authority inasmuch as the provisions of section 22 of the Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act, 1997 have been ignored. According to the learned counsel the said provisions of law had the effect of doing away with the limitation prescribed for filing of an application for execution of the decree and as such the execution petition could not have been dismissed as barred by time. No one has turned up for the respondents despite service.

They are proceeded against ex parte.

3. When called upon to explain as to why the Bank did not file an appeal against the impugned order, dated 23-7-1997, learned counsel refers to the cases of Messrs Chenab Cement Product (Pvt.) Ltd. And others v. Banking Tribunal Lahore and others (PLD 1996 Lahore 672) and Messrs Shahzad Ice Factory and 2 others v. Special Judge Banking (II), Lahore and another (PLD 1982 Lahore 92) to urge that notwithstanding the said remedy being available, the writ petition would be competent.

4. As stated by me above, the decree was passed on 30-9-1981 while the execution petition was filed on 30-5-1997. I find that in the execution petition (copy Annexure B) it has been stated in reply to Question No,6 that another application had been filed which was dismissed. However, no particulars of such application have been given, particularly the date of institution and the date of decision. Similar is the case with the writ petition where no such particulars have been given.

Learned counsel is also unable to give the said particulars. Be that as it may, I will assume that the first application was filed within the time prescribed by law for the first application which is three years commencing from the date of decree. Now the limitation for the second application for execution is not prescribed by the Limitation Act but is prescribed by section 48, C.P.C. The said provision of law prohibits a Court from making an order for execution of a decree on any fresh application that is presented after the expiry of six years from the date of the decree sought to be executed. I may note here that the case squarely falls within section 48(a) of C.P.C. As no grounds stand laid within the meaning of section 48(b) or subsection (2) of section 48, C.P.C. This being so, there is no force whatsoever in the said contention of the learned counsel as section 22(1) does away with the application of Limitation Act, 1908 and not the provisions of section 48, C.P.C. Which a Banking Court is bound to follow by virtue of section 7(2) of the said Act, 1997.

5. This writ petition even otherwise is not competent. The impugned order has the effect of preventing the sale of property by a Banking Court and is appealable under section 21(1) of the said Act. So far as the said judgment in the case of Messrs Shahzad Ice Factory is concerned, the same refers to interference with interlocutory orders arising from proceedings effecting the jurisdiction of the Court or Tribunal. Present is not such a case. The observations in the said Full Bench case of Messrs Chenab Cement Product (Pvt.) Ltd. Have been made with reference to the conditions contained in section 21(1) of section 9 of the Banking Tribunals Ordinance regarding condition of deposit. Needless to state that in the present case there is neither any such condition for admission of appeal nor was the Bank required to make any deposit as a precondition for hearing of the appeal provided in section 21(1) of the said Act of 1997.

6. For all that has been stated above, this writ petition D is found to be without any force and is accordingly dismissed. No orders as to costs.