2009 PLP 371 (CLC)

This appeal under section 22 of the Financial Institutions (Recovery of Finances) Ordinance, 2001 is directed against the order dated 31-8-2007 passed by the banking Court No.1 at Karachi in Execution Application No.5 of 2002, whereby an application moved by the appellants under Order XXI, rule 89, and section 151, C.P.C. was dismissed, so also another application under Order XXIII, rule 1, and section 151, C.P.C. moved by the respondent No.1. It will not be out of place to mention here that the respondent No.1 has not challenged such order of the Banking Court and it is only the appellants, who are judgment-debtors in the execution proceedings, who have assailed this order.

2. In a nutshell, relevant facts of the case are that a suit for recovery of Rs.5,158,815 being Suit No.56 of 1993, instituted by the respondent No.1 against the appellants, was decreed by the Banking Court vide its judgment dated 9-7-1995, followed by final decree dated 20-7-2001.

3. On filing of Execution Application No.5 of 2002 by respondent No.1, during its proceedings the mortgaged property of the appellants was put to auction for the first time on 21-6-2003, when highest bid of Rs.1,73,00,000 was received. However, on the application of the appellants, wherein plea was raised that the highest bid was less than the market value of the auctioned property, the said bid was stayed for some period and in the meantime the bidder withdrew his offer. The mortgaged property was, however, again put to auction for the second time on 15-1-2004 when the highest bid of Rs.1,64,00,000 was received from respondent No.2, which was later on enhanced to Rs.1,73,25,000 and accepted. The appellants being aggrieved by such proceedings in the Execution Application, on 27-3-2004 preferred 1st Appeal No.17 of 2004 before the High Court of Sindh, wherein interim order was passed on 30-3-2004, staying further proceedings in Execution Application No.5 of 2002. However, ultimately after detailed hearing, this appeal was dismissed vide short order dated 2-2-2006, followed by detailed reasons which seem to be recorded in the month of October, 2006.

4. It will be pertinent to mention here that during the pendency of this appeal, an application under Order XXI, rule 89, C.P.C. read with section 151, C.P.C. (C.M.A. No.166 of 2005) was filed by the appellants on 10-2-2005, which too was dismissed by the High Court with the observation that it was not maintainable and also barred by limitation. After the order passed in the 1st Appeal No.17 of 2004, when the matter further proceeded before the Executing Court, an application under Order XXI, rule 89, C.P.C. read with section 151, C.P.C. was again moved by the appellants before the Executing Court in December, 2006. The Banking Court in its impugned order examined, in detail, relevant facts of the case, particularly, the effect of the judgment of the High Court in 1st Appeal No.17 of 2004, which had attained finality, and came to the conclusion that the sale in favour of respondent No.2 and its confirmation on 22-3-2004 was, precisely, legal as well as a past and closed transaction, and thus for valid reasons the application of the appellants was dismissed.

5. Mr. Asim Mansoor Khan, learned counsel for the appellants has vehemently argued that the application under Order XXI, rule 89, C.P.C. read with section 151, C.P.C. moved before the Executing Court in December, 2006 shall be deemed to have been filed within the prescribed period of thirty days, as provided under Article 166 of the Limitation Act, as the earlier order of sale in favour of respondent No.2 was stayed by the High Court vide its order dated 30-3-2004, and soon after the dismissal of the appeal and receipt of copy of its reasons in November, 2006, such application was moved before the Banking Court in the month of December, 2006. Learned counsel is, however, unable to give the exact date on which the said application was submitted before the Executing Court in the month of December, 2006. He is also unable to give any plausible reason for non-filing of such application before the Executing Court within thirty days from 17-1-2004, when sale of property had taken place or within thirty days from 22-3-2004 when such sale was confirmed by the Banking Court in favour of respondent No.2.

6. Before proceeding with the merits of the application, dismissed by the Banking Court by its impugned order, it will be appropriate to examine its maintainability on the ground of limitation. Even the High Court in its detailed order passed in 1st Appeal No.17 of 2004, copy whereof was received by the appellants in the month of November, 2006, had observed that the said application submitted before the Banking Court was barred by limitation.

7. There is no cavil to this legal proposition that the period of limitation for filing of such application is governed by Article 166 of the Limitation Act, which provides 30 days time for this purpose. In the instant case sale of the property had taken place on 17-1-2004 and it was confirmed on 22-3-2004, while the application under Order XXI, rule 89, C.P.C. read with section 151, C.P.C. was moved before the Banking Court in the month of December, 2006 i.e. after almost twenty three months from the date of sale and more than twenty one months from the date of its confirmation.

8. Mr. Irfan A. Memon, learned counsel for respondent No.2 has cited the following judgments of the superior Courts in respect of his arguments that the application under Order XXI, rule 89, C.P.C. moved by the appellants was barred by limitation. (1) United Bank Limited v. Heryana Asbestos Cement Industries (Ltd.) and 20 others 2006 CLC 1272, United Bank Limited v. Messrs A.Z. Hashmi (Pvt.) Limited and 8 others 2000 CLC 1438 and Muhammad Ikhlaq Memon v. Zakaria Ghani and 6 others PLD 2005 SC 819.

9. Making reference to the earlier judgment of this Court in 1st Appeal No.17 of 2004, on the principle of res judicata, learned counsel has also placed reliance upon the case of Messrs New Rahat Engineering Works through its Proprietor and 4 others v. National Bank of Pakistan 2003 CLD 382.

10. We have carefully considered the arguments advanced by the learned counsel as referred above and find force in the submission of Mr. Irfan A. Memon that the application under Order XXI, rule 89, C.P.C. read with section 151, C.P.C. moved by the appellants before the Banking Court in the month of December, 2006 was hopelessly time barred and thus on this account alone the Banking Court was justified in dismissing the said application. The Banking Court has, however, taken care of all other contentions of the appellants on merits and has also discarded it for valid reasons as recorded therein. Besides, the judgment in the case of Hudaybia Textile Mills and others v. Allied Bank of Pakistan Ltd. and others PLD 1987 SC 512 gives a complete guideline to the Executing Courts in such circumstances. It lays down the principle that once sale in favour of auction-purchaser has been confirmed, such sale cannot be got cancelled/set aside at the instance of decree-holder or the judgment-debtor, who may be willing to settle their matter in or outside the Court on certain terms. For these reasons the dismissal of the application under Order XXIII, rule 1, C.P.C. moved by the respondent No.1 was also justified.

11. For the foregoing reasons, we find no substance in this appeal, which is accordingly dismissed in limine. S.A.K./A-182/K Appeal dismissed.