1998CLC812 (PLP)

3. I have further noticed that the decree, dated 4‑5‑198 prepared in pursuance of the judgment contains the following:‑‑‑ "That the defendants Nos. l, 2 and 3 do pay to the plaintiff jointly and . severally a sum of Rs.1,03,74,360.27 (Rupees one crore three lac seventy four thousand three hundred sixty and paisas twenty‑seven only) with interest at the rate of 14 % per annum with quarterly rests from the date of suit viz. 9‑11‑1980." However, the judgment, dated 4‑5‑1987, on the basis whereof, the said decree is passed, is to the following effect: "I, therefore, decree the plaintiff's suit against the defendant No.2 also with future interest from the date of the filing the suit till the payment is made." The judgment, dated 4‑5‑1987 was, thus, passed against defendant No.2 alone and by virtue of Order XX, Rule 6, C.P.C. the decree is required to be drawn in conformity with the judgment. It is obvious that as against judgment‑debtors Nos. 1 and 3 the proceedings had come to an end when the suit was partly decreed on 25‑3‑1984. It was for the decree‑holder to file an application for execution of the decree prepared in pursuance of judgment, dated 25‑3‑1984 against judgment‑debtors Nos. 1 and 3 within the time prescribed by law.

4. This now brings me to the question as to what shall be the period of limitation applicable to the present proceedings. While Mr. Gulbahar Korai has raised a preliminary objection to the effect that the judgment‑debtor No.3 can?not be heard in aid of any objection without complying with the requirements of Order XXI, Rule 23‑A, C.P.C., the learned counsel could not offer reply after being confronted with section 3 of the Limitation Act which makes it obligatory upon the Court to dismiss any proceedings instituted beyond limitation.

5. Mr. Shafaat Hussain, the learned counsel for the judgment debtor No.3 has referred to a number of judgments to the effect that the High Court of Sindh while hearing civil cases in exercise of original civil jurisdiction acts as District Court for Karachi, and therefore, Article 181 of the Limitation Act, after omission of Article 182, applies to applications for execution of judgment and decree passed by this. Court. The learned counsel, in support of his submission, has referred to the cases of Mahboob Khan v. Hassan Khan Durrani PLD 1990 SC 778, Mian Akbar Hussain v. Mst. Aishabai and others PLD 1991 SC 985, Pakistan Atomic Energy Commission v. M.S. Khalid PLD 1994 Kar. 317 and two unreported judgments in Execution Application No.3 of 1992 Habib Bank Limited v. Remifar (Pakistan) Limited and others and Execution Application No.53 of 1994 Muslim Commercial Bank Limited v. Ahmed Haji Habib. In all the said cases it is held that application for execution of decree passed by this Court in exercise of extraordinary original civil jurisdiction would be governed by Article 182 of the Limitation Act and has to be filed within a period of three years. Such position remains unchanged even after omission of Article 182, and would now be governed by Article 181 of the Limitation Act. However, Mr. Shafaat Hussain has very candidly referred to section 2(f)(ii) of the Banking Companies (Recovery of Loans) Ordinance, 1979 and also section 6 thereof. The learned counsel has further submitted that the decree, execution whereof is sought through the present proceedings, was passed in proceedings initiated under the Banking Companies (Recovery of Loans) Ordinance, 1979 and this Court had passed the decree as a Special Court defined under section 2(f)(ii) thereof. It is pertinent to reproduce here the relevant clause of definition of 'Special Court' contained in the 1979‑Ordinance which is as follows: "2(f) 'Special Court' means‑‑‑ (i)

(ii) in respect of any other case, the High Court in the exercise of original civil jurisdiction;" Although the Banking Companies (Recovery of Loans) Ordinance stands repealed by Act XV of 1997, this Court still exercises jurisdiction as the transferee Court and acts as the 'Banking Court' defined under section 2(b) of the said Act. It is also an admitted position that the extraordinary original civil jurisdiction is exercised by the High Court in relation to the city of Karachi alone whereas the proceedings under the Banking Companies (Recovery of Loans) Ordinance, 1979 and the Banking Companies (Recovery of Loans, Advances, Credits and Finances Act, 1997 are filed before the High Court of Sindh and the territorial jurisdiction for such proceedings extends to the entire Province. Thus, the jurisdiction under the 1979‑Ordinance and the 1997‑Act is conferred on this Court as the ordinary original civil jurisdiction. Such jurisdiction is clearly distinguishable and independent from the limitations applicable to exercise of extraordinary original civil jurisdiction exercisable by this Court being the principal Civil Court for the city of Karachi. In the circumstances, in my view, the limitation for filing application for execution of decree passed under the Banking Companies (Recovery of Loans) Ordinance, 1979 or under the Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act, 1997 shall be regulated by Article 183 of the Limitation Act. Any different interpretation shall render the inclusion of words "a judgment, decree or order of any High Court in the exercise of its ordinary original civil jurisdiction" used in Article 183 of the Limitation Act redundant. Obviously, any interpretation leading to redundancy in legislation has to be avoided. The present application filed on 31‑3‑1993, for execution of decree, dated 4‑5‑1987 as against judgment‑debtor No.2 is obviously within time. However, as against the judgment‑debtors Nos. 1 and 3, the decree having been passed on 25‑3‑1984, the present proceedings still are barred by limitation and liable to be dismissed. Moreover, I may not here that the decree‑holders have not sought execution of decree, dated 25‑3‑1984 which was passed against judgment debtors Nos. 1 and 3.

6. Next comes the question about applicability of the Limitation Act to the proceedings which have been transferred to this Court by virtue of section 7(6) of Act XV of 1997. It is noticed that section 22(1) of the last‑mentioned legislation, renders the provisions of Limitation Act inapplicable to the proceedings transferred to this Court, as above. The provisions of section 22(1) of Act XV of 1997, may, for the sake of reference, be quoted here: "

22. Application of the Limitation Act, 1908, Act IX of 1908:‑‑‑(1) Subject to subsection (2), the provisions of the Limitation Act, 1908 (Act IX of 1908), shall not apply to any suit, application or other proceedings filed or transferred to a Banking Court under this Act." It is urged by Mr. Shafaat Hussain that the time for filing the execution application against judgment‑debtors Nos. 1 and 3 had expired before the institution of the present proceedings. For such reason the judgment‑debtors Nos. l and 3 had acquired vested right to resist proceedings for execution of the judgment and decree, dated 25‑3‑1984 passed against them in Suit No.279 of 1983. The learned counsel submits that in the absence of express legislation, the above‑referred section 22(1) of Act XV of 1997 cannot be interpreted retrospectively so as to affect or take away the vested rights nor can the above provision be interpreted in a manner to revive the rights which had already extinguished or expired. In support of such submission the learned counsel has referred to case of the Commissioner of Income Tax, Central Zone 'B', Karachi v. M/s. Asbestos Cement Industries Limited, Karachi (1993 SCMR 1276), wherein the following passage of an old judgment of the Privy Council in the case of Yew Bon Tev v. Kenderaan Bas Mara (1983 Pakistan Supreme Court Cases 1200 Privy Council) has been cited with approval: "Their lordships consider that the proper approach to the construction of the 1974 Act is not to decide what label to apply to it, procedural or otherwise, but to see whether the statute is applied retrospectively to a particular type of case would impair existing rights and obligations. The appellants assert that a Limitation Act does not impair existing rights because the cause of action remains, on the basis that all that is affected is the remedy. There is logic in the distinction on the particular facts of The Ydun because the right to sue 'remained, for a while totally unimpaired. But in most cases the loss, as distinct from curtailment, of the right to sue is equivalent to the loss of the cause of action. "

7. The learned counsel for the decree‑holder has not been able to cite any material to take any different view in the matter. I am of the opinion that the above‑referred judgment of the Supreme Court applies to the present case and the provisions of section 22(1) of the Banking Companies (Recovery of Loans. Advances, Credits and Finances) Act, 1997 cannot be interpreted differently so as to revive rights which stood extinguished before the initiation of the present proceedings.

8. In the result the Execution Application as against judgment‑debtors Nos. l and 3 is dismissed as barred by limitation and the application is disposed of accordingly. A.A./N‑58/K?????????????????????????? ??????????????????????????????????? Order accordingly.