2019 PLP 437 (CLD)

This appeal, under section 22 of the Financial Institutions (Recovery of Finances) Ordinance 2001 ("F.I.R.O.") assails the order dated 19.10.2018 of the learned Judge Banking Court, Bahawalpur, whereby the objection petition of the appellant, seeking dismissal of the execution petition, was dismissed.

2. Facts pertinent to the disposal of this appeal are that a suit for recovery of Rs. 629,559/- was instituted by the respondent-bank against the appellant which was decreed on 23.4.2001. Petition for execution was filed, which appears to have been dismissed for non-prosecution on 19.1.2004. An application seeking its restoration was claimed to have been withdrawn on 11.2.2006; and on the same day fresh application for execution was statedly moved, which too was dismissed for non-prosecution but got restored on 11.4.2011. Appellant raised objection claiming that the execution petition was barred by time and that he was not given a notice before restoration of execution petition; the objection did not prevail with the learned Banking Court who dismissed the same vide order dated 19.10.2018, which has been attacked in this appeal.

3. Learned counsel for the appellant submitted that the first application for execution having been dismissed for non-prosecution, the second application was not within time; and that the petitioner was entitled to a notice before restoration of execution petition and that it could not be restored on a report of the Ahlmad.

4. Having given due consideration to the submissions of learned counsel we do not find any substance therein.

5. The decree in this case, was undeniably passed under the provisions of special law, which provides procedure to carry out the execution. Section 19(1) of F.I.R.O. mandates that upon pronouncement of the judgment and decree by the Banking Court, the suit shall automatically stand converted into execution proceedings without the need to file a separate application and no fresh notice need be issued to the judgment-debtor in this regard. The objective of the law appears to be to provide a forum to the Financial Institutions as well as the customers against default in fulfilling of their obligations towards each other with regard to any Finances and give a special mechanism to enforce the decree. In view of the special procedure prescribed in the Ordinance, there appears to be no requirement for the decree-holder bank to file a separate execution-petition, as it is the duty of the court to itself convert the decree into execution without waiting for separate application for execution from the decree-holder. The application, even if filed by the Bank for execution, at best be construed as a request to activate the proceedings for execution, by converting the suit into the execution-petition in terms of section 19 of F.I.R.O., which had to be taken to its logical end till the decree is satisfied; and there was no room for its dismissal for non-prosecution. The act of the court, in allegedly dismissing the petition for non-prosecution, could not prejudice the decree-holder and it was for this reason, as it appeared, that the learned Judge Banking Court, on the report of Ahlmad, proceeded to rectify the error which erupted due to the act of the court and restored the proceedings to convey the execution of decree in continuation of the proceedings under section 19 of F.I.R.O. and no exception could be taken thereto.

6. The objection as to the absence of notice is also untenable in view of the specific mandate of section 19(1) of F.I.R.O. which provides that "upon pronouncement of the judgment and decree by a Banking Court, the suit shall automatically stand converted into execution proceedings without the need to file a separate application and no fresh notice need be issued to the judgment debtor in this regard...". The objection raised therefore, lacks substance and is devoid of any merit. Similar view was also taken by a learned Division Bench of this Court in "Saeed Ullah Paracha v. Habib Bank Limited and others" (2014 CLD 582). Even otherwise the appellant could not possibly object to the order which is composite in nature as the learned Judge Banking Court, not only declined the objection to the restoration of execution proceedings but also restored the objection of the appellant under Order XXI, Rule 66, C.P.C., which was earlier dismissed for non-prosecution and opted to decide the same on merits.

7. The argument as to the filing of second execution application after six years and being therefore barred by limitation, is factually and legally incorrect inasmuch it is manifest from the record that the decree was passed on 23.4.2001, the alleged application for its execution, which in fact should have been treated as an application to activate the machinery of execution pursuant to section 19(1) of the F.I.R.O., is claimed to have been dismissed for non-prosecution on 19.1.2004; while the last application, which according to petitioner was not within time, was instituted by the Bank on 11.12.2006 which of course was within six years from the date of first application and also from the date of decree and therefore objection was illusory and baseless. Even in the ordinary civil cases, the first execution application can be instituted within three years from the date of decree under Article 181 of the Limitation Act, 1908, while the subsequent/fresh application for execution is governed by section 48 of C.P.C. which provides a period of six years. Although the provisions of section 48, C.P.C. are not attracted in the present case yet the said provisions, even if taken note of, the objection of appellant cannot sustain inasmuch as the decree in this case was passed on 23.4.2001, the first execution application is claimed to have been filed on 28.5.2001 which was allegedly dismissed on 19.1.2004, while the last application is claimed to have been filed on 11.12.2006; and being so it was within six years not only from the first application but also from the date of decree. The objection raised as such is devoid of any legal substance.

8. In "Mehboob Khan v. Hassan Khan Durrani" (PLD 1990 SC 778) it was ruled by the august Supreme Court as follows:- "The position that emerges from the above discussion is that, as already stated, the first application for execution of a decree would be governed by the residuary Article 181 and the rest of the applications made, thereafter, will be governed by the six years' time limit prescribed by section

48. Although the original purpose underlying section 48, read along with Articles 181 and 182 of the Limitation Act, before the amendment of the law was to provide maximum limit of time for execution of a decree. But in the changed position as a result of Law Reforms Ordinance, the only effect of section 48 would be to provide limitation for subsequent execution application after the first one. The result would be that if no application at all is made within the period prescribed by Article 181, the execution application made, thereafter, would be barred under the said Article and as such there would be no occasion to avail of the benefits of the extended time provided by section 48, C.P.C. In other words, once an application for execution is made within time so prescribed, any number of applications for execution can be presented within the six years period from the date of decree. This construction, in my opinion is the only construction that can be placed on the consequent legal position arising out of the amendments made by the omission of Article 182 and substitution of six years period in section 48, C.P.C. Otherwise the provisions for repeated applications every three years or taking steps in aid of execution provided for in Article 182, having disappeared, section 48 would become redundant and ineffective".

9. In view of the rule supra, the objection of the appellant was otherwise devoid of any legal substance as the second application was filed within six years and therefore, the objection was rightly declined. The order passed by the learned Judge Banking Court does not suffer from any error of law nor calls for any interference, in result the appeal is dismissed. KMZ/G-3/L Appeal dismisse