1988 PLP 30 (CLC)

1978 Law Notes (SC) 156 distinguished. Mirza Akbar Ali v. National Bank of Pakistan 1986 S C IM R 321 rel. (b) Civil Procedure Code (V of 1908)‑‑ ‑‑‑Ss. 48 & 115‑‑Revisional jurisdiction, exercise of‑‑Decree for joint possession could be executed within six years as pastulated by S.48, C.P.C.‑‑Finding of Appellate Court being in accordance with legal requirements, held, would not be open to any exception in revisional jurisdiction of High Court. Mohammad Aman Khan for Petitioners. Mohammad Shah Badshah for Respondents. Date of hearing: 30th September, 1987. The facts necessary for the disposal of this revision, briefly stated, are that the suit of Jalaluddin and others (respondents) against Raza Mohammad Khan and others (petitioners) for possession of the agricultural land and some houses was dismissed by the Senior Civil Judge, Peshawar on 31‑5‑1963. On appeal filed by the plaintiffs the learned District Judge set aside the decree of the trial Court and granted to the plaintiffs respondents a decree for joint possession of 9/56 shares out of the suit property on 27‑2‑1965. The aforesaid decree of the appellate Court was also confirmed by the High Court in revision vide judgment dated 15‑6‑1973. Jalaluddin and others (respondents) having been equipped with a decree of 9/56 shares of the suit property applied for execution of the decree regarding agricultural land on 25‑2‑1979 which was dismissed on 2‑4‑1981 for the reason that since the transfer mutation had been sanctioned in the revenue record, the decree for joint possession stood executed. The appeal filed by the decree‑holders against the dismissal of their execution application was, however, accepted by the learned District Judge on 9‑1‑1983 and the case was remanded to the executing Court with a direction to execute the decree for joint possession in accordance with the provisions of Order XXI, Rules 35, 36 of the Code of Civil Procedure. After the remand an objection petition was filed by the judgment‑debtors alleging, inter alia, that the execution application was time‑barred. The executing Court vide order dated 9‑12‑1984 issued warrant for possession of the land and dismissed the objection petition of the judgment‑debtors. The judgment‑debtors, feeling aggrieved, went in appeal to the District Judge alleging that all the judgment‑debtors were not impleaded in the execution application and that the question of limitation specifically raised before the executing ourt was left undecided. After hearing the parties the learned District Judge, regarding the objection as to non‑joinder of all the judgment debtors to the execution application, came to the conclusion that since the decree‑holders were to obtain symbolic possession, there was no need to implead all the judgment‑debtors as none of them was to be physically dispossessed. The objection about limitation was also repelled for the reason that section 48 of the Civil Procedure Code as amended by the Law Reforms Ordinance, 1972 (Ordinance XII of 1972) prescribed a period of six years for the execution of decree and the execution in this case having been applied for within the aforesaid period, it was not barred by limitation. The judgment debtors, feeling aggrieved, have come in revision to this Court.

2. In support of the revision petition the only point urged by the learned counsel is that the question of limitation involved in the case had not been decided in accordance with law. It is contended that although section 48 of the Civil Procedure Code was amended by the Law Reforms Ordinance 1972 and the maximum limit of time for execution of decree has been reduced from twelve years to six years, the decree‑holders were all the same required to apply for execution within three years of the date of decree as provided by Article 181 of the Limitation Act, 1908 which was a residuary Article and applicable to execution applications. Reliance is placed on 1978 Law Notes (SC)

156. In the cited case Leave to Appeal was granted to consider that since section 48 of Civil Procedure Code as amended was not in terms applicable to a decree granting an injunction whether Article 181 of the Limitation Act would be attracted when Article 182 of the Limitation Act stood omitted by the Law Reforms Ordinance, 1972. In the cited case only Leave to Appeal was granted and even otherwise it is distinguishable from the facts of the present case. Section 48 of the Civil Procedure Code as amended by the Law Reforms Ordinance, 1972 prescribes a period of six years as the maximum time limit for the execution of a decree and after the expiry of the said period no fresh applications for execution can be entertained. Within this period any number of application can be submitted for execution. Article 182 of the Limitation Act was also omitted by the Law Reforms Ordinance 1972. Under Article 182 of the Limitation Act the period of limitation was to run from the various points of time as specified in its column

3. Article 181 being a residuary Article could not apply when the case was covered by the provisions of Article

182. If Article 182 had not been omitted its clause (I) of the 3rd column would have been applicable to the case in hand which provided a period of three years for the execution of a decree commencing from the date of decree or order. Since Article 182 would have been applicable to the case there was no question of applying Article

181. The omission of Article 182 of the Limitation Act would not, therefore, attract the application of Article 181 which even otherwise could be invoked only to cases where none of the points of time specified in, the various clauses of Article 182 was applicable. The present case does not envisage the situation to which Article 181 can be made applicable. After the omission of Article 182 the condition of applying for execution within three years of the decree is no more existing and a decree‑holder can apply holder can apply for the execution of his decree any time within the maximum time limit of six years as required by the amended provision of section 48 of the Civil Procedure Code. It appears that the outer time limit of twelve years for execution of a decree was reduced to six years to enable a decree‑holder to apply for execution any time within the said period without requiring him to institute the execution application within three years of the decree or subsequent application for execution within a period of three years from the dismissal of the last application as contemplated by Article

182. In Mirza Akbar Ali v. National Bank of Pakistan (1986 SCMR 321) Leave to Appeal was refused by the Supreme Court with the following observation "Articel 182 of the Limitation Act did contain a clog on the right of the decree‑holder as he was required to institute the second or subsequent application for execution of the decree within a period of three years from the dismissal of the last application. This clog having been removed by the Law Reforms Ordinance in 1972 and the law of the limitation, being primarily a procedural law such a clog will not subsist after its repeal. The petitioner cannot claim a vested right arising out of it as none was conferred by such a provision. The substance of the provisions made in section 48 of the Civil Procedure Code and Article 182 of the Limitation Act being different the same principle as applies in giving effect to section 48 cannot be extended to Article 182 of the limitation Act. The bar of moving the application within three years of the rejection of the last application did not continue. As otherwise the application had been made within twelve years from the date of the decree. It fulfilled requirement of section 48 as it stood before its amendment by Law Reforms Ordinance."

3. For the aforesaid reason the finding of the learned District Judge is not open to any exception. This revision having no merit is accordingly dismissed with costs. A. A. / 569/ P. Revision dismissed