2002 PLP 162 (CLD)

Through the filing of this Constitutional petition, the petitioners have challenged the impugned order/decree dated 13‑6‑1996 whereby, the, learned Banking Judge modified the preliminary decree passed on 25‑3‑1984 and directed the office to prepare the preliminary decree in correct pro forma and also passed the final decree.

2. Facts leading to the filing, of the present Constitutional petition are that pursuant to filing a recovery suit, against the petitioners, before the Special Judge Banking Court, Lahore, a preliminary decree for a sum of Rs.1,02,887 was passed on 25‑3‑1984. The petitioners Nos. l and 2, statedly, filed an appeal (Regular First Appeal No.214 of 1984) before this Court, which was dismissed on the ground of limitation. Thereafter, on 6‑11‑1984, the respondent‑Bank filed an application before the Banking Court for drawing of final decree, which was objected to by the petitioners on the ground that since the preliminary decree was not passed in accordance with the provision of Order 34, C.P.C., therefore, such a decree cannot be made final. This object prevailed with the Court as well as to the respondent‑Bank. The writ petition then narrates that the respondent‑Bank, on 6‑4‑1988, filed an, application seeking amendment in the preliminary decree, which application was though contested by the petitioners, however, the learned Banking Judge accepted the said application and passed an order dated 13-6‑1996 for the amendment of the decree as well as for passing the final decree, which order has been assailed through this Constitutional petition.

3. The solitary contention raised by the learned counsel is that the petitioners Nos. 1 and 2 filed the appeal, which was although dismiss ed on the point of limitation, yet the preliminary decree stood merged into the decree passed by this Court, I, therefore, the learned Banking Judge had no jurisdiction to make an amendment in the preliminary decree and it was only this Court which could have amended the decree. Reliance has been placed on Maulvi Abdul Qayyum v. Syed Ali Asghar Shah and 5 others 1992 SCMR 241. .

4. The parties are in agreement that preliminary decree was assailed in appeal, which was dismissed by this Court on the point of limitation. There is no cavil to the proposition that the appeal filed by petitioners Nos. 1 and 2 was not decided on merits and the petitioners were non suited on the plea of limitation. Aforenoted judgment relied upon by the learned counsel for the petitioners is subject to certain exceptions as given in the said judgment itself. In the case cited above, their Lordships have held that there are some exceptions to the rule of merger and after quoting some stances, the Hon'ble Supreme Court has held that these instances are pointer to the situation when the appeal is not disposed of on merits. It flows from the reading of the said judgment that when the appeal is not disposed of on merits then the principle of merger will not be attracted. Moreover, the merger is for a limited purpose of computation of period of limitation and execution of the decree. In this case, as observed, the Regular First Appeal No‑214 of 1984, admittedly, was not decided on merits but the same was dismissed on point of limitation. It has been admitted by the learned counsel of both the parties that this Court did not render any findings on merits, while dismissing the appeal. Judgment relied upon by the learned counsel is not applicable to the facts of this case .and the same is of no help to the petitioners. The contention raised by the learned counsel has no force and is hereby repelled.

5. The learned counsel of the respondent‑Bank has submitted that the final decree has been satisfied by the petitioners without raising any objection and, therefore, the present writ petition has become infructuous. Confronted with this, the learned counsel has not much to say but has feebly asserted that the decrees have been satisfied but other suits for damages filed by the petitioners against the respondent‑Bank are still pending and although the decretal amount has been paid yet, in case of acceptance of present petition, he can claim refund of the amount. Suffice it to say that this contention of the learned counsel is equally devoid ‑of any force. Admittedly, the decrees, which have been made subject‑matter of this Constitutional petition stood satisfied even without raising any objection by the petitioners or reserving their right. If the suits filed by the petitioners will be decreed, there would be no impediments in recovering the decretal amount from the respondent‑Bark.

6. The upshot of the above discussion is that the writ petition is devoid of merits, thus, the same is dismissed leaving the parties to bear their own costs. S.A.K./M.A.K./W‑37/L Petition dismissed.