2022 PLP 1454 (CLD)

FAISAL ZAMAN KHAN, J.

Through this Execution First Appeal, order dated 08.11.2017 passed by the learned Judge Banking Court No.II, Lahore (Banking Court) has been assailed by virtue of which an execution petition filed by the appellant has been dismissed.

2. Facts giving rise to the present appeal are that a suit for recovery was filed by the appellant against the respondents before the Modaraba Tribunal, Lahore (Tribunal) which was decreed vide judgment and decree dated 14.11.2009. Feeling aggrieved, respondents filed R.F.A. No. 215/2020 before this Court, which was dismissed through judgment and decree dated 14.12.2015. For seeking execution of the decree passed by the Tribunal, an execution petition was filed by the appellant on 18.04.2016 during the course of which objections qua maintainability of the execution petition were filed by the respondents, which were accepted through the impugned order and the execution petition was dismissed being barred by time, therefore, this appeal.

3. Learned counsel for the appellant submits that the Banking Court erred in law in dismissing the execution petition on the ground that it is barred by limitation. He asserts that the said court lost sight of the fact that against the judgment and decree passed by the Tribunal, an appeal was filed by the respondents and since appeal is continuation of the suit and when the appellate court decided the appeal, the decree passed by the Tribunal merged into the appellate decree, therefore, limitation for filing the execution petition started from the day when the appeal was dismissed and since execution petition has been filed within 03 years of dismissal of the appeal, therefore, keeping in view Article 181 of the Limitation Act, 1908 (Act), execution petition was filed within time. He places reliance on Maulvi Abdul Qayyum v. Syed Ali Asghar Shah and 5 others (1992 SCMR 241), Muhammad Nazir and another v. Qaiser Ali Khan and 4 others (2003 SCMR 436) and Bakhtiar Ahmed v. Mst. Shamim Akhtar and others (2013 SCMR 5).

4. Replying to the above, learned counsel for the respondents submits that judgment and decree passed by the Tribunal was assailed by the respondents before this Court through an appeal, however, temporary injunction qua suspension of the said judgment and decree was not granted, therefore, keeping in view section 28 of the Modaraba Companies and Modaraba (Floatation and Control) Ordinance, 1980 read with Order XLI, Rule 5, C.P.C. since there was no prohibitory order holding the field suspending the judgment and decree, thus, the decree could be executed forthwith and since the execution petition has been filed after considerable delay, therefore, the impugned order is in accordance with law.

5. Arguments heard. Record perused.

6. The sole question which requires determination by this Court is as to whether the execution petition filed by the appellant was within time.

7. From perusal of the available record, the following facts are admitted:- a) That judgment and decree dated 14.11.2009 was passed by the Tribunal in favour of the appellant; b) That the said decree was challenged by the respondents through R.F.A. No. 215/2010, however, no temporary injunction was granted to them qua suspension of the decree; c) The appeal was dismissed by this Court on 14.12.2015 whereafter execution petition was filed by the appellant on 18.04.2016.

8. In the above backdrop and for deciding the controversy in hand, it will be apposite to reproduce Order XLI, Rule 5, C.P.C. which is as follows:- Stay by Appellate Court.--(1) An appeal shall not operate as a stay of proceedings under a decree or order appealed from except so far as the Appellate Court may order, nor shall execution of a decree be stayed by reason only of an appeal having been preferred from the decree; but the Appellate Court may for sufficient cause order stay of execution of such decree. Stay by Court which passed the decree.--(2) Where an application is made for stay of execution of an appealable decree before the expiration of the time allowed for appealing therefrom, the Court which passed the decree may on sufficient cause being shown order the execution to be stayed. (3) No order for stay of execution shall be made under sub-rule (1) or sub-rule (2) unless the Court making it is satisfied- (a) that substantial loss may result to the party applying for stay of execution unless the order is made; (b) that the application has been made without unreasonable delay; and (c) that security has been given by the applicant for the due performance of such decree or order as may ultimately be binding upon him. (4) Notwithstanding anything contained in sub-rule (3), the Court may make an ex parte order for stay of execution pending the hearing of the application. (emphasis supplied)

9. A bare perusal of the above provision would show that mere filing of an appeal would not operate as stay of proceedings under a decree appealed from and there is no embargo on the rights of a decree holder to initiate execution proceedings against the judgment debtor, that too, from the date of accrual of right.

10. Similarly it will be important to go through section 15 of the Act which signify that when a stay is granted by a court qua execution of a decree, the time of continuance of that order will be excluded from the period of limitation for filing an execution petition. For convenience, the said provision is reproduced hereunder:- "Exclusion of time during which proceedings are suspended. (1) In computing the period of limitation prescribed for any suit or application for the execution of a decree, the institution or execution of which has been stayed by injunction or order, the time of the continuance of the injunction or order, the day on which it was issued or made and the day on which it was withdrawn, shall be excluded. (2) In computing the period of limitation prescribed for any suit of which notice has been given in accordance with the requirements of any enactment for the time being in force, the period of such notice shall be excluded." (emphasis supplied)

11. The reading of the above provisions in juxtaposition with the facts of the present case would show that since no stay order was granted by this Court for suspending the decree or for stay of execution proceedings which could be excluded from the period of limitation for seeking execution of the judgment and decree passed by the Tribunal, thus the said decree continued to maintain its identity and was capable of execution from the day the right accrued to the appellant, however, the appellant failed to file an execution within the period of limitation as contemplated in Article 181 of the Act, which commenced from the day the right accrued, thus, the execution petition was barred by time.

12. In the above perspective, we have gone through the judgments cited by learned counsel for the appellant and find that these pertain to the proceedings emanating out of civil suits and not a case which has been filed and tried under a special dispensation as the proceedings in the present case have been initiated under the Modaraba Companies and Modaraba (Floatation and Control) Ordinance, 1980. Another distinguishable feature in the judgments cited by the learned counsel for the appellant is that in the cases of Maulvi Abdul Qayyum and Muhammad Nazir (supra), the decrees were passed by the trial court, however, prohibitory orders were passed by the 1st appellate courts qua the judgments and decrees whereas in the case of Bakhtiar Ahmed (supra), the decree was passed by the revisional court, thus the said judgments are distinguishable and the principle of merger as discussed in the said judgments will not apply to the case in hand.

13. It shall be important to mention here that in the case of "Bakhtiar Ahmed" (supra), while reiterating and endorsing the view taken by the Honourable apex Court in the case of "Maulvi Abdul Qayyum" (supra), it has been held as follows:- "It is to be remembered that till such time an appeal or revision from a decree is not filed, or such proceedings are pending but no stay order has been issued, the said decree remains capable of execution but when the court of last instance passes the decree, only the decree can be executed, irrespective of the fact, that decree of the lower court is affirmed, reversed or modified." It was further held as follows:- "In the above cited case it was held that where stay is granted by the appellate/revisional court, time can be extended for such period the decree remained under suspension. In the instant case a right has been accrued in favour of the respondent in terms of the order of the High Court and admittedly no stay or leave to appeal was granted by this Court, as such, the period of limitation would run from the decree passed by the High Court and no extension of time can be granted."

14. Even otherwise, this does not appeal to reason that a decree is passed by a court, which is under challenge, before an appellate court and despite the fact that no temporary injunction is granted, the decree cannot be executed on the analogy that the appeal is continuation of the suit and unless the appeal is finalized, the decree will not become final. If this argument is accepted, then the provision of Order XLI, Rule 5, C.P.C. and section 15 of the Act would become redundant. On the converse side, this situation will help the judgment debtor on the ground that as and when he files an appeal, he will not be required to make a prayer for seeking a prohibitory order qua suspension of the judgment and decree or the execution proceedings on the same analogy of continuation of proceedings and the principle of merger. This stipulation will in fact indirectly dispense with the above noted provisions and defeat their mandate.

15. As discussed above, since the present proceedings have been initiated under a special dispensation [the Modaraba Companies and Modaraba (Floatation and Control) Ordinance, 1980] and not under section 9, C.P.C. and for initiation of the same, a special procedure has been provided which has now been substituted with the Financial Institutions (Recovery of Finances) Ordinance, 2001 (Ordinance) and in section 22 of the Ordinance, it has clearly been mentioned that unless the operation of judgment and decree under execution is stayed or execution proceedings are suspended by the appellate court or the executing court, the proceedings under execution will go on, thus, mere pendency of an appeal does not itself operate as a stay.

16. Last but not the least, a perusal of the execution petition filed by the appellant would show that it had sought execution of judgment and decree passed by the Tribunal (and not by the appellate court), thus even if rule of merger is applied to the case in hand, appellant was to seek execution of the appellate judgment and decree, which has never been sought, thus the execution petition was even otherwise not maintainable (see Page No. 12 of the case file).

17. For what has been discussed above, we find no reason to interfere with the impugned order, therefore, this appeal fails and the same stands dismissed. MH/F-19/L Appeal dismissed.