2004 PLP 472 (CLD)

2. The facts of the case are that the United Bank Ltd. had brought a civil suit for recovery of money amounting to Rs.9,65,701 with costs against the present appellants jointly and severally, which was decreed in favour of the Bank on 30‑11‑1998. It was further asserted that at a later stage execution, proceedings were initiated and the property belonging to the appellants Nos.2 and 3 was put to auction and sold for Rs.12,25,000 in favour of respondent No.2 although the market value of the property was about Rs.60 lacs. The appellants at this stage came up with the abovesaid objection petition with regard to the auction of the property which application was however, dealt with and disposed of by way of dismissal of the abovesaid application. After that the above said application under Order 21, rule 90, C.P.C. was dismissed on 28‑10‑1999, and sale resulting in auction was confirmed and orders for issuance of sale certificate were passed, the appellants again challenged it by way of an application which was dismissed on 19‑1‑2001. Both these orders have been challenged through the present E.F.A. There is another aspect of the case that the appellants had litigation vide E.F.A.No.582 of 1999 and by way of writ petition before this Court. The above said E.F.A. No.582 of 1999 was got dismissed as withdrawn. The writ petition as above said was pending but no temporary injunction .was allowed as such the Judge Banking Court ‑proceeded to issue sale certificate. The appellants challenged both the above said orders through the present E.F.A. The appellants also submitted' C.M.. that there was sufficient cause for condonation of delay in filing the present E.F.A. and that as he has been prosecuting with E.F.A. No.582 of 1999 and writ before this Court, is entitled to the exclusion of this period under section 14 of the Limitation Act.

3. We have heard learned counsel for both the parties and perused the material made available before this Court. The record reveals that the United Bank Ltd. had initially brought a suit for recovery of Rs.9,65,701 availed of by the appellants as finance facility in which the appellants had filed an application for grant of leave to defend on certain grounds i.e. that the interest claimed by the plaintiff‑Bank was un‑Islamic, the documents annexed with the plaint were not attested as required by law, the statement of accounts was not correct and the benefit of incentive scheme had been wrongly disallowed to them. The trial Court after having reply to this application for leave to defend vide orders dated 30‑11‑1998 had dismissed the above said application for leave to defend and resultantly passed a decree in favour of the plaintiff Bank for recovery of the above said amount with costs, service charges, mark‑up at the agreed rate from the date of institution of suit till the date of payment jointly and severally etc., however, liquidated damages were not allowed and the decretal amount was ordered to be recovered by sale of the property furnished as security with the Bank as well as by the sale of the other properties of the appellants. On account of having failed to liquidate their liability under the decree, the trial Court proceeded with the process of auction of this property upon which the present appellants came up with the objection petition which was dismissed on 28‑10‑1999 and then on 19‑1‑2001 sale certificate was issued.

4. The facts narrated above reveal that the present E.F.A. is apparently barred by limitation and in this eventuality the appellants have prayed for condonation of delay under sections 5 and 14 of the Limitation Act that as l he has been prosecuting with E.F.A. No.582 of 1999 and by filing a writ petition before this Court, the time consumed in this process be excluded and if any delay has taken place then it be condoned under section 5 of the Limitation Act. Nothing is available to support that the appellants have been prosecuting their E.F.A. No.582 of 1999 and the writ petition before this Court in good faith. E.F.A. No.582 of 1999 was got dismissed as withdrawn. 'No injunctive order was issued in the writ petition Even otherwise where period of limitation is provided under special law, it is to take precedence as laid down in Allah Dino and another v. Muhammad Shah and others 2001 SCMR 286 as such the appellants are not entitled to the protection of sections 5 and 14 of the Limitation Act. As above said in the absence of production of any injunctive order by this Court the trial Court rightly proceeded with the matter. In view of above we hold the E.F.A. to be without force and dismiss it. MIAN HAMID FAROOQ, J.‑‑‑I have had the advantage of reading the judgment of my learned brother Parvez Ahmad, J. although I agree with the conclusions arrived at by my learned brother, yet I would like to record my own reasons.

2. Through the filing of the present appeal, the appellants/judgment‑debtors, have called in question order dated 28‑10‑1999, whereby the learned Judge Banking Court dismissed the applications, filed by the appellants, under Order XXI, Rule 90, C.P.C., and order dated 19‑1‑2001, through which the sale o: auctioned property was confirmed in favour of respondent No.2 and sale certificate was ordered to be issued by the learned Judge Banking Court.

3. Facts culminating to the filing of the present appeal need not be reiterated, as the same have been tabulated in the judgment proposed to‑ be rendered by my learned brother.

4. The appeal is, admittedly, barred by time, as such, the appellants have instituted an application under sections 5 and 14 of the Limitation Act (C.M. No.3‑C of 2001) seeking condonation of delay. The ground for condonation of delay, as urged in the aforenoted application, is that the "appeal is well in time, however, if there is any delay, the same is due to the act of the respondents and, therefore, the time consumed in E.F.A. No.582 of 1999 and Writ Petition No.580 of 2001, from 22‑11‑1999 to 22‑1‑2001, is liable to be condoned in the interest of justice".

5. While arguing the application under sections 5 and 14 of the Limitation Act, the learned counsel for the appellants, while reiterating the stance taken in the said application, has contended that there are "sufficient grounds" for not preferring the appeal within the stipulated period, thus, there are "sufficient causes" for the condonation of. delay for filing the appeal, beyond the period of limitation.

6. Admittedly, the impugned order was passed, on 28‑10‑1999 and the appeal in hand was filed on 23‑1‑2001, while the period of limitation for filing an appeal under section 21 of the Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act, 1997 (XV of 1997) is 30 days from the date of order/decree. Even if the period, consumed for obtaining the certified copies, is excluded from the period of limitation, even then the appeal has been preferred after long expire of period, of limitation and is grossly barred by', time.

7. The prime question, which has arisen for determination, by this Court, is as to whether section 5 of the Limitation Act is applicable to the facts and circumstances of the present case. Section 29(2) of the Limitation Act provides that where in a special law or local law different periods of limitation have been prescribed, the provisions of section, 5 of the Limitation Act would not be applicable. Needless to mention that under the ordinary law for filing first appeal before this Court, a period of 90 days has been prescribed while the present appeal is governed by the provisions of Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act, 1997, which is a special law and as noted above, prescribes a period of 30 days for filing first appeal before' this Court against an order passed by the learned Judge Banking Court. From the above narrative it is, thus, clear that special law has provided a different period of limitation than the ordinary law, therefore, section 5 of the Limitation Act is neither applicable nor attracted in the present set of circumstances.

8. In the above perspective, without adverting to the merits of the application, the same on the legal plan is not maintainable. Provisions of section 5 of the Limitation Act are not applicable in the present case in view of the provisions of section 29(2) of the Limitation Act as per law laid down by this Court in Bashir Ahmad and others v. Messrs Habib Bank Ltd. 1990 CLC‑ 1105 and by the Honourable Supreme Court of Pakistan in a case reported as Allah Dino and another v. Muhammad Shah and others 2001 SCMR

286. Being guided by the aforesaid law declared, the application under section 5 of the Limitation Act is misconceived, incompetent and not maintainable.

9. Now coming to section 14 of the Limitation Act, which provision of law has also been invoked by the ' appellants for condonation of delay. Upon the perusal of section 14 of Limitation Act, we find that the said section is not applicable to appeals and its application has been confined to suits only. In Masud Ahmad and 2 others v. United Bank Limited 1992 SCMR 424, it has been held as under:‑‑ "Subsection (1) of section 14, Limitation Act, 1908, provides that time spent in prosecuting an appeal was also to be excluded but this exclusion was allowed only if a suit, not an appeal, had to be instituted. If a person had filed a suit and showed to the Court that he had been, with due diligence, prosecuting a civil suit and subsequently an appeal, the time spent not only in prosecuting civil suit, but also the appeal would be excluded. "

10. Although, as held earlier, section 14 of the Limitation Act has no applicability to the appeals, yet even if the principles of the said section be made applicable to the appeals, even then a litigant had to show that he had been in "good faith" prosecuting another "civil proceedings" within the meaning of section 14 of the Limitation Act and those "circumstances" may be treated as "sufficient cause" for the condonation of delay within the meaning of section 5 of the Limitation Act. In the present case, the appellants/ applicants have failed to show that they have been prosecuting their appeal and the Constitutional petition before this Court in "good faith". From the perusal of the contents of the application under discussion I do not find that the appellants/ applicants have even averred therein that the appellants had been prosecuting their appeal/writ petition before this Court with "due diligence" and in "good faith". Even no affidavit of the learned counsel, who filed appeal/writ petition, has been filed alongwith the present application. Under the law it is necessary for the appellants to prove that they had been prosecuting the earlier proceedings in good faith and despite due care and precaution, the presentation of the appeal/writ petition was on account of the circumstances beyond their control. It has been held in Ch. Muhammad Sharif v. Muhammad Ali Khan and others 1975 SCMR 259 that failure to acquaint himself with relevant provisions of law relating to jurisdiction of the Court, amounted to negligence on the part of the counsel and the High Court has properly exercised its jurisdiction in refusing to condone the delay. It is settled law that in order to be entitled for the condonation of delay, within the J parameters of law, each day's delay has to 'be explained by the party, who is seeking the condonation of delay.

11. We find from the examination of the available record, including the memorandum of appeal and application in hand, that the appellants have neither pleaded the "bona fide belief" of the learned counsel/ appellants nor there is any affidavit of their learned counsel on record to this effect. Conversely, the ground agitated in the present application is that there is no delay in filing the appeal and if at all there is any delay that is due to the act of the respondents. This is a strange plea canvassed by the appellants for condonation of delay, which can neither be comprehended under the law nor countenanced under any stretch of imagination.

12. From the above discussion, to my mind the applicants have failed to make out any case for the condonation of delay within the parameters of law, thus, the application under sections 5 and 14 of the Limitation Act (C.M. No.3‑C of 2002) is incompetent and also devoid of merits, thus, the same is dismissed on both the counts.

13. Now adverting to order dated 19‑1‑2001, which is also the subject‑matter of the present appeal. Upon the examination of the said order, I find that the learned Judge Banking Court, after finding that no copy of the writ petition or injunctive order issued by this Court has been placed on record, dismissed the application dated 12‑1‑2001, filed by the appellants, and ordered for the issuance of sale certificate favouring the auction purchasers. I have also gone through the application dated 12‑1‑2001, and find that it is devoid of substance, as the only prayer made therein is that the case may be kept pending till the decision of the writ petition. I do not find that alongwith the said application any copy of the writ petition, statedly filed by the appellants, or injunctive order issued by any Court was annexed. It was simply stated in the said application that the case is pending as an objection case and the applicants are going to remove the objections. In this perspective, I am of the view that the learned Baking Court did not commit any illegality in passing the order dated 19‑1‑2001, while dismissing the appellant's application dated 12‑1‑2001, moreso when neither the learned counsel nor any of the appellants entered appearance before the learned Banking Court. Even otherwise the learned counsel for the appellants, before us, could not point out any legal infirmity in the said order warranting interference by this Court.

14. Through the said order dated 19‑1‑2001, the learned Banking Court, while dismissing the application, as noted above, ordered for the issuance of a sale certificate, which limb of order is also not open to exception. According to the provisions of Order XXI, I Rule 92, C.P.C., pursuant to the sale/auction of the property, where no application is made under Rules, 89, 90 and 91 or if such applications are filed after their dismissal, the Court shall make an order confirming the sale and then the sale becomes absolute. In the instant case although the appellants filed objection petitions, but the same were disallowed and the appellants failed to produce any copy of the injunctive order, therefore, the learned Banking Court, having no alternative, ordered for the issuance of sale certificate, which order is passed in consonance with the provisions of law. I am of the firm view that the learned Judge Banking Court did not commit any legal error, while passing the order dated 19‑1‑2001. Upshot of the above discussion is that the present appeal is grossly barred by time and is also devoid of merits, thus, the same is dismissed on both the counts with no order as to costs. E.F.A:. No.47 of 2001 is‑dismissed, with no order as to costs. S.A.K./C‑197/L Appeal dismissed.