ORDER SHEET

IN THE HIGH COURT OF SINDH, KARACHI

Ist Appeal No.35 of 2009

Date Order with signature of Judge

Present: Mr. Justice Gulzar Ahmed

Mr. Justice Muhammad Ali Mazhar

Date of hearing : 11.11.2011.

Appellant : M/s. United Bank Ltd.

Respondents : : M/s. Plastic Pack (Pvt) Ltd. & others

Mr.Abdul Haleem Siddiqui, Advocate for the appellant.

Nemo for the respondents

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Muhammad Ali Mazhar, J: This appeal under section 22 of the Financial Institutions (Recovery of Finances) Ordinance, 2001 has been brought to challenge an order dated 24.3.2009, passed by Banking Court No.1 at Karachi in Execution No.66 of 1999, whereby the application moved under Order 9 Rule 9 read with Section 151 CPC filed by the appellant/decree holder was dismissed.

2. Succinctly, the facts of the case are that the appellant is a Banking Company, while respondent No.1 is a Private Limited Company and respondent Nos.2 to 5 are guarantors of the respondent No.1, who availed industrial loan, but failed to repay the same. The appellant had filed a Banking Suit No.144 of 1993, which was decreed vide judgment dated 15.10.1997. Since the respondent failed to pay the decretal amount, therefore, the appellant had filed Execution Application No.66 of 1999 for the sale of mortgaged property in the Executing Court. In spite of issuing notices and service by way of substituted modes, nobody appeared except respondent No.2 through his Advocate, who also failed to file any objection, therefore, Executing Court had passed an order to issue the proclamation of sale.

3. On 4.12.2007, the Execution Application was dismissed for non-prosecution, thereafter, learned counsel for the appellant filed an application for restoration along with his personal affidavit, which was also dismissed in non-prosecution on 7.4.2008. Thereafter, the appellant moved another application under Order 9 Rule 9 read with section 151 CPC in the Executing Court on 8.4.2008 for restoration of earlier Application, which was also dismissed vide order dated 24.3.2009 by the Executing Court on the ground that once an Execution Application is dismissed for default, there is no question of reviving the same. The decree holder is at liberty to file fresh Execution Application.

4. All the respondents have been served through publication in daily newspaper, Jang Karachi and Lahore and notices have also been issued to them through T.C.S., both the newspapers dated 26-06-2010 are available on record, thereafter, the same respondent had been served again on 12.11.2010 through publication in daily newspaper Express, Faisalabad and again notices were issued through courier service and D.J. Faisalabad. In spite of substituted service through newspaper as well as courier service and D.J. Faisalabad neither the respondents appeared nor any intimation received. This Court has already passed an order on 25.11.2010 to dispose of this appeal at Katcha Peshi stage.

5. Learned counsel for the appellant argued that sufficient cause was shown in the restoration application and the application was also supported by the personal affidavit of the Advocate for the decree holder, who stated that due to inadvertence of his court clerk, the Execution Application was typed in the list of cases fixed in the High Court and due to this bona fide mistake, he could not appear in the Banking Court within time and when this mistake came to his knowledge, he immediately went to the Banking Court for attending this execution application, but he was informed by the reader that the restoration application was dismissed for non-prosecution. Learned counsel further argued that the second restoration application was immediately filed on very next day. It was further argued by the learned counsel for the appellant that the Execution Application was instituted in the year 1999 and the observation made by the learned Executing Court that the appellant under Section 48 of CPC may move fresh Execution Application is contrary to the Section 48 CPC, as fresh Execution Application can only be filed within six years from the date of decree sought to be executed and since the suit was decreed in the year 1999, therefore, after dismissal of earlier Execution Application for non-prosecution no fresh application can be filed after six years. Therefore, he argued that the appellant rightly filed application for restoration of Execution Application, which was not considered. Learned counsel further argued that for the purpose of restoration of application, Executing Court has to see whether sufficient grounds have been made out for restoration or not but the restoration application was dismissed merely on the ground that the appellant may move fresh Execution Application.

6. We have examined the impugned order in which learned Executing Court has failed to consider whether any sufficient cause was made out for the restoration of earlier application or not but simply dismissed the application on the ground that the appellant may file fresh Execution Application which is not correct approach of law.

7. Under Section 7 of the Financial Institutions (Recovery of Finances) Ordinance, 2001 powers of Banking Court are provided and under sub-section (1) (a), it is clearly provided that the Banking Court in exercise of its civil jurisdiction have all the powers vested in Civil Court under the Code of Civil Procedure, 1908. Similar Powers under section 7 were conferred upon Banking Court in the Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act, 1997, which was repealed by the Financial Institutions (Recovery of Finances) Ordinance, 2001. Therefore, there is no doubt that Banking Court can exercise all the powers vested in civil court under the CPC.

8.The reasons assigned in the impugned order is that once the Execution Application is dismissed in non-prosecution it can not be restored, is not a correct proposition of law. Only question, which is crucial to decide is to see whether in the restoration application sufficient grounds for restoration have been made out or not and, if Order 9 Rule 9 CPC is not strictly applicable, even then keeping in view the sufficient cause, the execution application would have been restored under the inherent powers conferred upon the Court under section 151 CPC. The expression 'sufficient cause' is not capable of being confined to precise, identical, and invariable definition, nor any hard and fast rule can be propounded as to encompass all possible eventualities which may arise due to particular fact and circumstance of each case. The Court has also inherent powers under section 151, C.P.C., to make such orders, as may be necessary for the ends of justice and to prevent the abuse of the process of the Court. These are all enabling provisions; the powers thereunder can be exercised by the Court to cover ostensibly impossible situations, for complete dispensation of justice, for which C.P.C. has been designed, but despite the best efforts of the draftsman, to cater for all possible situations, if it is found lacking in meeting some eventualities, the Court can act ex delicto justiciae, supply the omission in the procedure, adopt methodology, for effectually carrying out the purpose in view. Reference can be made to PLD 1993 S.C. 418

9. The inherent power of the court has been preserved to meet a situation where no express provision of law is applicable and such power can be exercised if there is no specific prohibition from a particular act. The order 9 rule 9 CPC has been basically designed for the restoration of suit wholly or partly dismissed under rule 8, and this provision does not speak anything about the restoration of application dismissed in default. It is also well settled principle of law that absence of necessary provision does not necessarily lead to absence of jurisdiction in a civil Court for restoration of execution application dismissed in default upon proof of sufficient cause. It can be restored in exercise of inherent powers. In the supporting affidavit the learned counsel for the appellant stated that he is associated with Mr.Naim-ur-Rehman, advocate, who is appearing for the decree holder and he has further submitted that due to inadvertence of the court clerk the execution application was wrongly mentioned in the office list of the high court cases therefore, he could not appear in the Banking Court but immediately when it came to his knowledge he rushed to the Banking Court and found that the earlier application for restoration was dismissed in non-prosecution and another application under order 9 rule 9 CPC was filed on very next day. In fact vide order dated 24.3.2009, the application filed under order 9 rule 9 CPC was dismissed which was filed for the restoration of earlier application moved for restoration which was not decided by the executing court on merits but it was simply dismissed due to non-appearance of the counsel for the decree holder and in the supporting affidavit sufficient cause has been shown for the non-appearance on 7.4.2008 due to mistake of court clerk who entered the Banking Court case in the office list of High Court cases showing the cases of Mr.Naim-ur-Rehman fixed on 7.4.2008. While deciding the second restoration application, the learned executing court was only obliged to see whether any case is made out for the restoration of earlier application but in the impugned order instead of considering the crucial question whether any sufficient cause has been made out or not, impugned order has been passed and second restoration application was dismissed without considering the reasons for non appearance mentioned in the personal affidavit of counsel filed in support of restoration application.

10. For the foregoing reasons, this appeal is allowed. The impugned order dated 24.3.2009 is set-aside and earlier application moved under Order 9 Rule 9 CPC read with Section 151 CPC dismissed for non-prosecution on 7.4.2008 is restored to its original position with the direction to the learned executing court to decide it on merits.

Judge