2001 PLP 108 (CLC)

Haji Abdur Razziq Khan for Petitioner. Khan Bahadur Khan for Respondent. Date of hearing: 11th September, 2000. Respondents/plaintiffs instituted Suit No.85/1 of 1980 seeking declaration to the effect that they were owners of the suit land while petitioner and Sadbar were tenants in the said land. Permanent injunction restraining the petitioner and other defendant from denying their title to the suit property and interference etc. was also sought. In the alternative decree for possession of the suit property was also prayed. The said suit was resisted by petitioner and other defendants. The learned Civil Judge, Swat, however, passed decree in favour of respondents/plaintiffs vide judgment and decree, dated 6‑2‑1993. Being aggrieved with the said judgment and decree, the petitioner and other defendants filed appeal in the Court of learned District Judge, Dir which was dismissed vide judgment and decree, dated 27‑11‑1993. Civil Revision No:222 of 1994 filed by petitioner before this Court was also dismissed in limine vide judgment, dated 11‑4‑1994. The respondents/decree‑holders filed execution petition on 17‑2‑1997 before the Executing Court. The petitioner filed an application on 8‑5‑1997 before the Executing Court for the dismissal of the execution application being time barred. The said application was accepted and the execution petition filed b5 respondents/decree‑holders was dismissed vide judgment, dated 28‑6‑199 i . The respondents/decree‑holders filed appeal against the judgment, dated 28‑6‑1997 in the Court of learned District Judge/Zilla Qazi, Swat which was entrusted to learned Additional District Judge/Azafi Zilla Qazi, Swat Camp Matta which was accepted and the judgment of the learned Executing Court; dated 28‑6‑1997 was set aside. Being aggrieved with the Judgment of learned Additional District Judge/Azafi Zilla Qazi, dated 27‑5‑1998 the petitioner has now moved this Court through revision petition in hand.

2. Haji Abdur Razziq Khan, Advocate the learned counsel representing the petitioner argued that the execution application tiled by respondents Nos. l to 10 was apparently time‑barred. The decree was granted in favour of respondents/decree‑holders on 6‑2‑1993. Appeal against the said judgment and decree was dismissed on 27‑11‑1993, therefore, the respondents/decree- holders could file execution petition within 3 years from 27‑11‑1993.

3. It was further argued that Civil Revision No.222 of 1994 filed by the petitioner was dismissed by this Court in limine vide judgment, dated 11‑4‑1994 and no decree sheet was drawn by this Court (High Court) because the revision petition was dismissed in limine, therefore, the rule of merger would be applicable only to the extent of judgment and decree of the appellate Court, dated 27‑11‑1993 and since the revision petition was dismissed in limine, therefore, the rule of merger would not extend and include the order of this Court, dated 11‑4‑1994.

4. On the other hand, Mr. Khan Bahadur Khan, Advocate, the learned counsel representing the respondents argued that rule of merger shall also be applicable to the order/judgment passed in revision. He placed reliance on Maulvi Abdul Qayyum v. Ali Asghar Shah and 5 others 1992 SCMR 241 and argued that the judgment and order of the learned Additional District Judge accepting the appeal of the decree‑holders is proper and valid order, hence need no interference.

5. I have heard the learned counsel for the parties and perused the record.

6. So far as the argument of the learned counsel for the petitioner that the decree‑holder could file execution petition within a period of three years is concerned, there is no cavil with this proposition. The limitation period prescribed under Article 181 of the Limitation Act is three years for the first execution application from the date of preparation of decree.

7. So far as the second argument of the learned counsel for the petitioner that the revision petition was dismissed in limine, therefore, the rule of merger would be applicable only to the extent of judgment and decree of the appellate Court is concerned, this argument has force in it. The decree was granted in favour of respondent‑decree‑holder on 6‑2‑1993, appeal against, the said judgment and decree was dismissed on 27‑11‑1993, the revision petition filed by the judgment‑debtor was dismissed in limine on 11‑4‑1994. The limitation period of three years for filing first execution petition would, therefore, start from 27‑11‑1993 and not from 11‑4‑1994 because as mentioned above the revision petition was dismissed in limine and no decree‑sheet was drawn by this Court. Had this Court drawn decree‑sheet then the limitation period would have started from the date of decree passed by this Court even in revision as is clear from the dictum of august Supreme Court of Pakistan given in judgment Maulvi Abdul Qayyum v. Syed Ali Asghar Shah and 5 others 1992 SCMR 241 wherein it was held:‑‑

"These judicial announcements leave no room for doubt that for the purpose of execution, the rule of merger equally applies to the decree passed in exercise of revisional jurisdiction. This issue may also be examined from another angle. Take the case of a suit, which is dismissed by the trial Court and with this dismissal the First Appellate Court does not interfere, but it is decreed by the revisional Court. There should be no doubt that the decree of the Court of revision can well be executed. So far as excecutability of a final decree is concerned, does it make any difference, if the decree of the First Appellate Court is affirmed by the revisional Court? It will be sheer contradiction in terms if the decree is held enforceable when the suit is decreed for the first time by the revisional Court, but regarded as incapable of execution of its decree is that of the affirmation of the decree of the lower Court, and more so when Article 181, unlike Article 182, which has disappeared from the Statute Book, does not refer either to decree of the Appellate Court or revisional Court but anchors the commencement' of period of limitation on the accrual of right to apply and such right legitimately arises when revision against the decision of the lower Court is, one way or other, disposed of. " The above‑cited judgment cannot help the respondent decree‑holder because in the said case the revisional Court (High Court) while affirming the decree of the, First Appellate Court accepted the revision petition and a decree‑sheet was drawn by High Court. The question which needs to be answered here is as to whether the limitation period for filing execution petition would run from the date of the decree of the First Appellate Court due to rule of merger or from the date when the revision petition was dismissed in limine affirming the decree of the first Appellate Court and while doing so no decree‑sheet was drawn. The august Supreme Court of Pakistan in the above‑cited case has made the proposition very clear that when a decree is passed by the revisional Court, in such a case rule of merger wot1ld be applicable to the judgment and decree of the revisional Court also but a distinction is to be drawn in the cases where no decree is passed by the revisional Court when disposing of revision petition either ink limine or otherwise.

8. There are exceptions to the proposition that a decree of trial Court merges in that of appellate Court and those exceptions come into play when an appeal is dismissed in limine or in default or for having been insufficiently stamped or because no appeal actually lay or was withdrawn or had abated. Reliance is placed on Mrs. Alice Walter v. Islamud Din Qureshi PLD 1968 Kar. 19.

9. The case in hand also would fall into exceptions to the said rule of merger because the revision petition, as mentioned above, was dismissed in limine and no decree was granted by the High Court, in which the decree passed by the learned District Judge, Dir has become merged. To put it shortly the decree that exists is the decree, dated 27‑11‑1993 passed by learned District Judge, Dir. Therefore, the limitation for filing the execution would start from 27‑11‑1993 and calculating the period of limitation from the abovementioned date, the execution petition filed by the decree‑holder on 17‑2‑1997 is barred by two months and 20 days.

10. The net result of the above discussion is that revision petition in hand is accepted and judgment and order passed on 27‑5‑1998 by learned Additional District Judge/Izafi Zilla Qazi, Swat Camp Matta is set aside and the judgment/order, dated 28‑6‑1997 of learned Civil Judge/Illaqa Qazi, Tehsil Matta, District Swat is upheld with no orders as to costs. Q. M. H. /M. A. K./176/P Revision allowed