ABDUL RASHEED and anothers vs BANK OF PUNJAB through Branch Manager

ORDER

' Present first appeal, filed under section 22 of Financial Institutions (Recovery of Finances)

Ordinance 2001, proceeds against judgment and decree dated 19-8-2002, whereby the learned Judge Banking Court, after finding that no serous dispute exists between the parties, for which leave to defend be allowed, dismissed appellant's application seeking leave to defend the suit and consequent thereto passed a decree for the recovery of Rs.2,68,234 with costs and mark-up, against the appellant, vide judgment and decree dated 19-8-2002, which has brought the appellants before this Court.

2. The appeal is admittedly barred by time, as such, the appellants have filed an application under section 5 of the Limitation Act (C.M. No,3-C of 2002) for condonation of delay, asserting therein, that the delay in filing the appeal is neither intentional nor deliberate. Admittedly, the period of limitation for filing the appeal under section 22 of Ordinance XLVI of 2001, is 30 days from the date of the decree. Even if the period consumed for obtaining certified copy of the impugned judgment is excluded from the period of limitation, even then appeal has been preferred after the expiry of the period of limitation. Even according to the stance of the appellants, the appeal is barred by time and that is why condonation of delay is being sought through filing an application under section 5 of the Limitation Act.

3. The prime question, which has arisen for determination by this Court, is as to whether section 5 of the Limitation Act is applicable to the facts and circumstances of the present case. Section 29(2) of the Limitation Act provides that wherein a special law or local law different periods of limitation has been prescribed, the provisions of section 5 of the Limitation Act would not be applicable. Needless to mention that under the ordinary law for filing regular first appeal, before this Court, a period of 90 days has been prescribed, while the present case is covered by the provisions of Financial Institutions (Recovery of Finances) Ordinance 2001, which is a special law and, as noted above, prescribes a period of 30 days for filing first appeal before this Court, against judgment passed by the learned Judge Banking Court. From the above narrative, it is, thus, clear that special law has provided a different period of limitation than the ordinary law, therefore, section 5 of the Limitation Act is neither applicable nor attracted in the present set of circumstanced.

4. In the above perspective, without adverting to the merits/grounds of the application in hand, the same on the legal plain is not maintainable. Provisions of section 5 of the Limitation Act are not applicable in the present case in view of the provisions of section 29(2) of the Limitation Act, as per law laid down by this Court in Bashir Ahmad and others v. Messrs Habib Bank Lt4. 1990 CLC 1105 and by the Honourable Supreme Court of Pakistan in a case reported as Allah Dino and another v.

Muhammad Shah and others 2001 SCM R 286. Being guided by the aforesaid law declared, this application (C.M. No,3-C of 2002), which has been filed under section 5 of the Limitation Act, is misconceived, incompetent and not maintainable, hence, dismissed.

5. For the foregoing reasons and with the dismissal of the aforenoted application, the appeal is, admittedly, barred by time, thus, we are constrained to hold that the appeal cannot proceed having been filed beyond the period of limitation prescribed under the relevant law, thus, the same is dismissed with no order as to costs.