2005 PLP 1500 (CLD)

MIAN HAMID FAROOQ, J.

Appellants, through the filing of the present first appeal, under section 21 of the Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act, 1997 (hereinafter referred to as Act) have called in question order dated 9-10-2000, whereby the learned Banking Court dismissed the application for setting aside the ex parte decree dated 28-3-1974, with the following prayers:- "Under the circumstances, it is respectfully prayed that application for setting aside ex parte decree dated 28-3-1974, may very kindly be accepted after rejecting the order dated 9-10-2000 passed by learned Judge Banking Court No.1, Lahore. It is further prayed that impugned orders dated 9-10-2000 for dismissing the application for setting aside ex parte decree dated 28-3-1974 and operation of issuance of warrant of attachment orders dated 9-10-2000 may please be held in abeyance and further execution proceedings before the Judge Banking Court No.1, Lahore may please be stayed in the paramount interest of justice."

2. Instant appeal is, admittedly, barred by time, as such, the appellants have filed application for condonation of delay (C.M. No.1-C of 2001). The only ground urged in support of the said application is that appellant No.2 "is permanent resident of Rawalpindi and suffering with heart disease and was unable to attend each and every date of hearing and came to know dismissal order dated 9-10-2000 only on 17-2-2001"

3. Firstly, the aforenoted application for condonation of delay is adverted to Learned counsel for the appellants in support of the said application has submitted that the appellants originally filed the appeal (E.F.A. No.127 of 2001), thereby challenging the orders dated 9-10-2000, 3-1-2001 and 12-2-2001, however, under the directions of the Division Bench now have filed different appeals. According to the learned counsel the same is sufficient ground for condonation of delay.

4. When the learned counsel was asked to show as to how section 5 of the Limitation Act is applicable in the present case, the learned counsel replied that as the appellants were not negligent, therefore, the delay may be condoned.

5. In the above perspective, to our mind, the principal question, which has arisen for determination by this Court is as to whether section 5 of the Limitation Act is applicable in the present case. Section 29 of the Limitation Act provides that where in a special or local law different periods of limitation have been prescribed, the provisions of section 5 of the Limitation Act are not applicable. It may be noted here that under the ordinary law, a period of 90 days has been prescribed for filing the first appeal, under Article 156 of the Limitation Act, before this Court, while the present case is governed by the provisions of Act XV of 1997, which is a special law and section 21(1) of Act prescribes a period of 30 days for filing first A appeal, before this Court, against the judgment and decree passed by the learned Banking Court.

6. From the above, it is this clear that the special law has provided different period of limitation, for filing the first appeal in this Court, than the ordinary law, therefore, section 5 of the Limitation Act is neither applicable nor attracted in the present set of circumstances as per law laid down in the cases of Allah Ditta v. Farooq Ahmad and 3 others PLD 1979 Lahore 917; Bashir Ahmad and others v. Messrs Habib Bank Ltd. 1990 CLC 1105; Messrs Conoco Industries (Pvt.) Ltd. and 3 others v. United Bank Limited, Lahore and another 2004 CLD 472 and Sheikh Muhammad Kashif v. Askari Leasing Limited through Manager/Chief Executive of Branch/Recovery Officer 2004 CLD 1645 and by the Honourable Supreme Court of Pakistan in the reported cases of Ali Muhammad and another v. Fazal Hussain and others 1983 SCMR 1239 and Allah Dino and another v. Muhammad Shah and others 2001 SCMR

286. Being guided by the aforesaid law laid down, the application in hand, which has been filed under section 5 of the Limitation Act, is misconceived, incompetent and not maintainable. Needless to mention that the contentions raised by the learned counsel in this regard are devoid of merits in view of the aforenoted law declared by the Honourable Supreme Court of Pakistan, which, as per Article 189 of the Constitutional of the Islamic Republic of Pakistan, 1973, is binding upon all the Courts. 6-A. In view of the above background, the application filed by the appellants under section 5 of the Limitation Act for the condonation of delay is incompetent and not maintainable, thus stands dismissed.

7. With the dismissal of the aforenoted application, the appeal is barred by time, thus, we are constrained to hold that the appeal cannot proceed further having been filed beyond the period of limitation, prescribed under the relevant law, thus, the same also stands dismissed, leaving the parties to bear their own costs. M.H./A-467/L Appeal dismissed.