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    2022LHC4443

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    2022LHC4443

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    2 views7 pages

    2022LHC4443

    Uploaded by

    AdvocatesajidKamboh
    Efg

    Copyright:

    © All Rights Reserved
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    of 7

    Stereo.

    H C J D A 38

    Judgment Sheet

    IN THE LAHORE HIGH COURT, LAHORE.


    JUDICIAL DEPARTMENT

    EFA No. 117828/2017

    First Punjab Modaraba (FPM)


    Versus
    M/s Aftab (Pvt.) Limited etc.

    JUDGMENT

    Date of hearing: 16.06.2022

    Appellant by: Mr. Nadeem Saeed, Advocate.

    Respondents by: Mr. Muhammad Imran Malik, Advocate.

    Faisal Zaman Khan, J:- Through this Execution First Appeal,


    order dated 08.11.2017 passed by the learned Judge Banking Court
    No.II, Lahore (Banking Court) has been assailed by virtue of which
    an execution petition filed by the appellant has been dismissed.

    2. Facts giving rise to the present appeal are that a suit for recovery
    was filed by the appellant against the respondents before the Modaraba
    Tribunal, Lahore (Tribunal) which was decreed vide judgment and
    decree dated 14.11.2009. Feeling aggrieved, respondents filed RFA
    No. 215/2020 before this Court, which was dismissed through
    judgment and decree dated 14.12.2015. For seeking execution of the
    decree passed by the Tribunal, an execution petition was filed by the
    appellant on 18.04.2016 during the course of which objections qua
    maintainability of the execution petition were filed by the respondents,
    which were accepted through the impugned order and the execution
    petition was dismissed being barred by time, therefore, this appeal.
    EFA No. 117828/2017 2

    3. Learned counsel for the appellant submits that the Banking


    Court erred in law in dismissing the execution petition on the ground
    that it is barred by limitation. He asserts that the said court lost sight of
    the fact that against the judgment and decree passed by the Tribunal, an
    appeal was filed by the respondents and since appeal is continuation of
    the suit and when the appellate court decided the appeal, the decree
    passed by the Tribunal merged into the appellate decree, therefore,
    limitation for filing the execution petition started from the day when
    the appeal was dismissed and since execution petition has been filed
    within 03 years of dismissal of the appeal, therefore, keeping in view
    Article 181 of the Limitation Act, 1908 (Act), execution petition was
    filed within time. He places reliance on Maulvi Abdul Qayyum v. Syed
    Ali Asghar Shah and 5 others (1992 SCMR 241), Muhammad Nazir
    and another v. Qaiser Ali Khan and 4 others (2003 SCMR 436) and
    Bakhtiar Ahmed v. Mst. Shamim Akhtar and others (2013 SCMR 5).

    4. Replying to the above, learned counsel for the respondents


    submits that judgment and decree passed by the Tribunal was assailed
    by the respondents before this Court through an appeal, however,
    temporary injunction qua suspension of the said judgment and decree
    was not granted, therefore, keeping in view Section 28 of the
    Modaraba Companies and Modaraba (Floatation and Control)
    Ordinance, 1980 read with Order XLI Rule 5 CPC since there was no
    prohibitory order holding the field suspending the judgment and
    decree, thus, the decree could be executed forthwith and since the
    execution petition has been filed after considerable delay, therefore, the
    impugned order is in accordance with law.

    5. Arguments heard. Record perused.

    6. The sole question which requires determination by this Court is


    as to whether the execution petition filed by the appellant was within
    time.
    EFA No. 117828/2017 3

    7. From perusal of the available record, the following facts are


    admitted:-

    a) That judgment and decree dated 14.11.2009 was passed


    by the Tribunal in favour of the appellant;

    b) That the said decree was challenged by the respondents


    through RFA No. 215/2010, however, no temporary
    injunction was granted to them qua suspension of the
    decree;

    c) The appeal was dismissed by this Court on 14.12.2015


    whereafter execution petition was filed by the appellant on
    18.04.2016.
    8. In the above backdrop and for deciding the controversy in hand,
    it will be apposite to reproduce Order XLI Rule 5 CPC which is as
    follows:-

    Stay by Appellate Court.--(1) An appeal shall not operate as a


    stay of proceedings under a decree or order appealed from
    except so far as the Appellate Court may order, nor shall
    execution of a decree be stayed by reason only of an appeal
    having been preferred from the decree; but the Appellate Court
    may for sufficient cause order stay of execution of such decree.

    Stay by Court which passed the decree.--(2) Where an


    application is made for stay of execution of an appealable
    decree before the expiration of the time allowed for appealing
    therefrom, the Court which passed the decree may on sufficient
    cause being shown order the execution to be stayed.
    (3) No order for stay of execution shall be made under sub-rule
    (1) or sub-rule (2) unless the Court making it is satisfied—

    (a) that substantial loss may result to the party applying for
    stay of execution unless the order is made;

    (b) that the application has been made without unreasonable


    delay; and

    (c) that security has been given by the applicant for the due
    performance of such decree or order as may ultimately be
    binding upon him.

    (4) Notwithstanding anything contained in sub-rule (3), the


    Court may make an ex parte order for stay of execution pending
    the hearing of the application.
    EFA No. 117828/2017 4

    (emphasis supplied)
    9. A bare perusal of the above provision would show that mere
    filing of an appeal would not operate as stay of proceedings under a
    decree appealed from and there is no embargo on the rights of a decree
    holder to initiate execution proceedings against the judgment debtor,
    that too, from the date of accrual of right.

    10. Similarly it will be important to go through Section 15 of the Act


    which signify that when a stay is granted by a court qua execution of a
    decree, the time of continuance of that order will be excluded from the
    period of limitation for filing an execution petition. For convenience,
    the said provision is reproduced hereunder:-

    “Exclusion of time during which proceedings are suspended.


    (1) In computing the period of limitation prescribed for any
    suit or application for the execution of a decree, the institution
    or execution of which has been stayed by injunction or order, the
    time of the continuance of the injunction or order, the day on
    which it was issued or made and the day on which it was
    withdrawn, shall be excluded.

    (2) In computing the period of limitation prescribed for any


    suit of which notice has been given in accordance with the
    requirements of any enactment for the time being in force, the
    period of such notice shall be excluded.”

    (emphasis supplied)
    11. The reading of the above provisions in juxtaposition with the
    facts of the present case would show that since no stay order was
    granted by this Court for suspending the decree or for stay of execution
    proceedings which could be excluded from the period of limitation for
    seeking execution of the judgment and decree passed by the Tribunal,
    thus the said decree continued to maintain its identity and was capable
    of execution from the day the right accrued to the appellant, however,
    the appellant failed to file an execution within the period of limitation
    as contemplated in Article 181 of the Act, which commenced from the
    day the right accrued, thus, the execution petition was barred by time.
    EFA No. 117828/2017 5

    12. In the above perspective, we have gone through the judgments


    cited by learned counsel for the appellant and find that these pertain to
    the proceedings emanating out of civil suits and not a case which has
    been filed and tried under a special dispensation as the proceedings in
    the present case have been initiated under the Modaraba Companies
    and Modaraba (Floatation and Control) Ordinance, 1980. Another
    distinguishable feature in the judgments cited by the learned counsel
    for the appellant is that in the cases of Maulvi Abdul Qayyum and
    Muhammad Nazir (supra), the decrees were passed by the trial court,
    however, prohibitory orders were passed by the 1st appellate courts qua
    the judgments and decrees whereas in the case of Bakhtiar Ahmed
    (supra), the decree was passed by the revisional court, thus the said
    judgments are distinguishable and the principle of merger as discussed
    in the said judgments will not apply to the case in hand.

    13. It shall be important to mention here that in the case of


    “Bakhtiar Ahmed” (supra), while reiterating and endorsing the view
    taken by the Honourable Apex Court in the case of “Maulvi Abdul
    Qayyum” (supra), it has been held as follows:-

    “It is to be remembered that till such time an appeal or revision


    from a decree is not filed, or such proceedings are pending but
    no stay order has been issued, the said decree remains capable
    of execution but when the court of last instance passes the
    decree, only the decree can be executed, irrespective of the fact,
    that decree of the lower court is affirmed, reversed or modified.

    It was further held as follows:-

    “In the above cited case it was held that where stay is granted
    by the appellate/revisional court, time can be extended for such
    period the decree remained under suspension. In the instant case
    a right has been accrued in favour of the respondent in terms of
    the order of the High Court and admittedly no stay or leave to
    appeal was granted by this Court, as such, the period of
    limitation would run from the decree passed by the High Court
    and no extension of time can be granted.”
    EFA No. 117828/2017 6

    14. Even otherwise, this does not appeal to reason that a decree is
    passed by a court, which is under challenge, before an appellate court
    and despite the fact that no temporary injunction is granted, the decree
    cannot be executed on the analogy that the appeal is continuation of the
    suit and unless the appeal is finalized, the decree will not become final.
    If this argument is accepted, then the provision of Order XLI Rule 5
    CPC and Section 15 of the Act would become redundant. On the
    converse side, this situation will help the judgment debtor on the
    ground that as and when he files an appeal, he will not be required to
    make a prayer for seeking a prohibitory order qua suspension of the
    judgment and decree or the execution proceedings on the same analogy
    of continuation of proceedings and the principle of merger. This
    stipulation will in fact indirectly dispense with the above noted
    provisions and defeat their mandate.

    15. As discussed above, since the present proceedings have been


    initiated under a special dispensation [the Modaraba Companies and
    Modaraba (Floatation and Control) Ordinance, 1980] and not under
    Section 9 CPC and for initiation of the same, a special procedure has
    been provided which has now been substituted with the Financial
    Institutions (Recovery of Finances) Ordinance, 2001 (Ordinance) and
    in Section 22 of the Ordinance, it has clearly been mentioned that
    unless the operation of judgment and decree under execution is stayed
    or execution proceedings are suspended by the appellate court or the
    executing court, the proceedings under execution will go on, thus, mere
    pendency of an appeal does not itself operate as a stay.

    16. Last but not the least, a perusal of the execution petition filed by
    the appellant would show that it had sought execution of judgment and
    decree passed by the Tribunal (and not by the appellate court), thus
    even if rule of merger is applied to the case in hand, appellant was to
    seek execution of the appellate judgment and decree, which has never
    EFA No. 117828/2017 7

    been sought, thus the execution petition was even otherwise not
    maintainable (see Page No. 12 of the case file).

    17. For what has been discussed above, we find no reason to


    interfere with the impugned order, therefore, this appeal fails and the
    same stands dismissed.

    (Shams Mehmood Mirza) (Faisal Zaman Khan)


    Judge Judge

    Approved for Reporting

    Judge Judge
    Abis Ali

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