1993 PLP 101 (CLC)

MALIK MUHAMMAD QAYYUM, J.‑‑This judgment shall dispose of C.M. 5204‑C of 1990 filed by Habib Bank Limited, the applicant, under sections 152 and 151 of the Code of Civil Procedure, 1908, for correction of the judgment and decree of this Court in R.FA. No. 30/82 whereby the decree of the Special Court (Banking) Lahore dated 26th October, 1981 was affirmed.

2. The facts necessary for the disposal of this application are that the applicant bank, on 5th August, 1991 filed a suit against the respondents for recovery of Rs. 26,90,819.08 alongwith costs and future interest. On having been served with summons in the prescribed form the respondents applied under Order 37, Rule 3, C.P.C. for leave to appear and defend the suit but that application was dismissed by the Special Court (Banking), Lahore and suit of the applicant was decreed. The respondents preferred an appeal (R.F.A. No. 30/82) before this Court which was dismissed on 9th of December, 1986.

3. It appears that during the course of execution of the decree, a dispute arose between the parties regarding the entitlement of the applicant to recover interest for the period subsequent to the filing of the suit. The position taken up by the respondent was that the applicant has been awarded interest only till the date of filing of the suit and not for the period thereafter. On the other hand, the applicant asserted its entitlement to receive interest up to the date of payment and satisfaction of the decree.

4. It may also be mentioned that on Ist of July, 1989 respondents had filed W.P. No. 1454/89 challenging the right of the decree‑holder to recover interest on the ground that the charge of interest was contrary to the injunctions of Islam as contained in Holy Qur'an and Sunnah. That writ petition was however, withdrawn on 21st February, 1990.

5. Before proceeding any further it would be of advantage to reproduce the relevant part of the decree of this Court as also the trial Court which reads as under:‑‑

6. The learned counsel for the petitioner in support of this petition has contended that the trial Court had passed the decree as prayed for in favour of the petitioner and had held it to be entitled to recover interest till the realization of the suit amount and therefore, the use of expression of the word in the decree was a result of the inadvertant and accidental error. It was pointed out that under section 8(2) of the Banking Companies (Recovery of Loans) Ordinance, 1979, the trial Court had no option but to grant interest to the petitioners at the stipulated rate till recovery which in fact was the intention of the Court.

7. The learned counsel for the respondents has however, urged that the petitioner was not allowed interest from the date of filing of the suit till recovery and such a prayer cannot be granted at this stage. According to the learned counsel if the petitioner was dissatisfied with the decree passed by the trial Court or this Court, it should have filed an appeal and the petitioner cannot be granted the relief at this stage on a miscellaneous application. Two other objections namely (1) that the application for correction of decree should have been filed before the trial Court and not this Court and (2) that the application was not within time, have also been raised.

8. After hearing the learned counsel for the parties and perusing the record we have no hesitation in accepting this application. It is clear from the appellate as well as original decree that the Courts had accepted the claim of the petitioner in the suit as a whole which included the recovery of future interest. Indeed grant of interest was a mandatory requirement of section 8(2) of the Banking Companies (Recovery of Loans) Ordinance, 1979. There is nothing in the judgments or the decrees to show that the Courts had rejected the claim of the petitioner for grant of future interest. On the other hand, it is apparent that the use of expression instead of was an accidental error specially when it is read alongwith the word appearing in the judgment.

9. It may also be mentioned that in the writ petition filed by the respondents themselves namely W.P. No. 1454/89 they had not disputed that under the decree the petitioner was entitled to recover future interest, but their case was that the charge of interest was un‑Islamic. It is pertinent to notice that during the course of hearing of that writ petition on 11th February, 1990, it was stated by the learned counsel appearing on behalf of the respondents as under:‑‑ "Learned counsel states that the suit was filed in the year 1979 for the recovery of Rs. twenty‑six lacs and that the amount under the decree has now arisen to Rs. sixty‑five lacs."

10. So far as legal objections raised by the learned counsel for the petitioner suffice it to say that as the appeal before this Court was decided on merits, the original decree merged into appellate decree which alone remains in field. The application was, therefore, competently filed before this Court. The learned counsel for the petitioner has however, contended that in case of dismissal of the appeal it is the original decree which remains intact. Reliance has been placed on The Province of East Pakistan v. Muhammad Hossain Mai (PLD 1965 SC 1). This contention of the learned counsel is not well‑founded. The judgment relied upon by the learned counsel and the earlier judgment of the Supreme Court in FA. Khan v. The Government of Pakistan (PLD 1964 SC 520) were considered by the Supreme Court of Pakistan in a subsequent case which is reported as Maulvi Abdul Qayyum v. Syed Ali Asghar Shah and 5 others (1992 SCMR 241) in which it was categorically held that the view taken in FA. Khan's case that notwithstanding the dismissal of the appeal it is the appellate decree which remains in the field and the original decree merges into it was correct enunciation of law.

11. As regards the objection to limitation, it is well settled that act or omission of the Court can prejudice no one. In the present case the error which is clerical in nature was clearly committed by the Court while passing decree and as such question of limitation does not arise. As a result of what has been stated above this petition is accepted. Let the decree be amended as prayed for. AA./I‑45/L Application accepted.