JUDGMENT- SHEET

IN THE HIGH COURT OF SINDH, CIRCUIT COURT LARKANA  

Civil Appeal No.D- 02 of 2015.

Date of hearing

Order with signature of Judge

02.02.2022.

1.         For orders on office objections.

2.         For hearing of C.M.A. No. 109/2020 (U/S: 22 (7).

3.         For hearing of C.M.A. No. 102/2018 (Recalling Order).

4.         For hearing of main case.

            Mr. Muhammad Rafique, Advocate for appellants.

            Mr. Ahmed Hussain Khoso, Advocate for respondent.

            Mr. Muhammad Imran Abbasi, Assistant Attorney General.

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                        The facts in brief necessary for disposal of instant civil appeal are that the father of appellants obtained loan from Habib Bank Limited, which he failed to return; consequently a suit for recovery of such loan filed against him by Habib Bank Limited was decreed. The appellants having succeeded their father by way of filing an application Under Order 7 Rule 11 CPC r/w Section 151 CPC sought for rejection of the execution application filed by Habib Bank Limited for satisfaction of decree, for the reason that it is second in series and is time barred; such application was dismissed by learned Judge, Banking Court-I, Larkana, vide order dated 04.03.2015, which is impugned by the appellants before this Court by preferring the instant civil appeal.

                        It is contended by learned counsel for the appellants that the decree could not be executed on the basis of time barred execution application, which was second in series; therefore, the order of learned Banking Court being illegal is liable to be set aside. In support of his contention, he relied upon case of Khalid Latif Vs. United Bank Ltd. Shah Alam Market Lahore and 4 others.

                        Learned counsel for the respondent and learned Assistant Attorney General have sought dismissal of the civil appeal being incompetent by contending that fruit of the decree could not be denied to the decree holder on the basis of technicalities. In support of their contention, they relied upon order dated 25.08.2017, passed by Principal Seat of this Court at Karachi in Execution Application No.71/2010.

                         We have considered the above arguments and perused the record.

                        It is settled by now that the execution application could not be dismissed in default or for non-prosecution, such dismissal, if is recorded, would amount to denial of fruit of the decree to the decree holder, which is against the principle of natural justice, therefore, the order of dismissal of first execution application was totally illegal. Even otherwise, such order was not passed on merits, therefore, the second execution application filed by the decree holder to have a fruit of decree was competent and the same could not be defeated on point of limitation. Apparently, the provisions of Order 7 Rule 11 CPC are not applicable for seeking rejection of an execution application. In these premises, the learned Banking Court was right to reject the subject application of the appellants by way of impugned order, which is not found illegal to be interfered with by this Court.

                        The order which is relied upon by learned counsel for the respondent and learned Assistant General being latest in time has got preference over and above the case law, which is relied upon by learned counsel for the appellants.

                        In view of above, the instant civil appeal fails and is dismissed accordingly, which even otherwise is appearing to be barred by Section 22 (6) of the Financial Institutions (Recovery of Finances) Ordinance, 2001, together with listed applications, with no order as to costs. JUDGE

                                                                                                     JUDGE