2005 PLP 1571 (CLD)

This appeal is directed against the Order dated 9-4-2004, passed by the Banking Court No.II, Karachi in Execution No.87 of 2003, whereby the learned Court allowed attachment of the property of the appellants. The respondent filed Suit No.218 of 2001 against the appellants in the Banking Court No.II, Karachi for recovery of Rs.23.474 million. On an application under section 151, C.P.C. filed by the defendant No.1 in the said suit, admitting his liability to the extent of payment of amount of principal. On basis of admitted documents the Court determined the amount at Rs.23,473,669 vide order dated 13-9-2003, followed by interim decree dated 20-9-2003. Thereafter an execution application was filed, bearing No.87 of 2003. Plaintiff (respondent herein) moved an application for attachment of the property which was allowed vide the impugned order dated 9-4-2004. It is against this order that the present appeal has been filed. Mr. Nasir J.R. Shaikh, learned Advocate for the respondent, while opposing the present appeal, submitted that although order dated 9-4-2004 is an interlocutory order but not one envisaged under subsection (6) of section 22 of the Financial Institutions (Recovery of Finances) Ordinance, 2001. He contended that the question of liability to the extent of determination of the principal amount has been admitted and settled by the learned trial Court on the strength of admission of appellant No.1 and admitted documents. It is a final adjudication to that extent and falls within the definition of interim decree within the meaning of section 11 of the Financial Institutions (Recovery of Finances) Ordinance, 2001. With regard to such interim decree the plea that it was an interlocutory order is not maintainable as against defendant No.1 being contrary to the express provisions of section 11(2). He submitted that final order and decree has been passed in Suit No.218 of 2001 and the appellants have already filed an appeal against the said final order and decree, therefore, this appeal is liable to be dismissed on this ground as well. He further submitted that the interim decree was not challenged in time and it attained finality. Mr. Riaz Kadir Brohi, learned counsel for the appellants, has submitted that the appellants could not approach this Court earlier as the order dated 13-9-2003 was an interim order against the defendant/appellant No.

1. It attracts the provisions of section 22(6) and therefore, it was not appealable. We have heard the learned counsel and have perused the record. We also called for the R and Ps of Suit No.218 and Exh. No.87 of 2004. For consideration of the order dated 13-9-2003 we may refer to section 11 which is reproduced as under:-- "

11. Interim Decree:-- (1) If the Banking Court on a consideration of the contents of the plaint, the application for leave to defend of the defendant and the reply thereto, is of the opinion that the dispute between the parties does not extend to the whole of the claim, or that part of the claim is either undisputed, or is clearly due, or that the dispute is mainly limited to a part of the principal amount of the finance or to any other amounts relating to the finance, it shall, while granting leave and framing issues with respect to the disputed amounts, pass an interim decree in respect of that part of the claim which relates to the principal amount and which appears to be payable by the defendant to the plaintiff. (2) The interim decree passed under subsection (1) shall, for all purposes including appeal and execution, be deemed to be a decree passed under this Ordinance, and any amount covered thereby or recovered in execution thereof shall be subjected at the time of final decree. Provided that . The above section specifically refers to part of the claim that is undisputed between the parties. In the instant case the principal amount was admitted by defendant No.1 in his application and on the strength of the admitted documents the learned trial Court ordered for payment of the amount of claim to the extent of Rs.23,473,

669. The specific order was passed on the basis of the admission made in writing in the application moved by defendant No.1 himself and based on the admitted documents. The order was only with respect to the aforesaid amount while the remaining claim kept pending for further adjudication. In view of this position, the order falls within the definition of interim decree as envisaged in section 11(2). Therefore, it would attract provisions of subsection 2 of the aforesaid section and is an appealable order. The appeal against such order is to be filed within 30 days as provided under section 22 of the aforesaid Ordinance. A perusal of the impugned order reveals that this Order passed on 13-9-2003 followed by interim decree on 20-9-2003. These are appealable under provisions of section 11(2) of the Financial Institutions (Recovery of Finances) Ordinance, 2001 and a period of 30 days is provided by the Statute for preferring the appeal. The order attained finality and cannot be disturbed in the present appeal presented on 18-5-2004 by circumventing the period of limitation, after moving a subsequent application during proceedings in Execution No.87 of 2003 and then approaching this Court in appeal. Even otherwise the impugned order dated 9-4-2004 cannot be treated as a final order as envisaged under the provisions of section 22(1) and (6) of the Ordinance, no appeal lies against such an interlocutory order. Accordingly, this appeal is dismissed in limine together with the pending applications. M.B.A./N-68/K Appeal dismissed.