P L D 1968 Karachi 31 (PLP)

Shah Jamil A1am and Shafiq Ahmad for Appellant. Date of hearing : 18th May 1967. The respondents are not represented; therefore, notices were issued to them for today's date under the rules of this Court. As none of them is present and there is nobody for or on their behalf, I proceed ex parte.

2. This appeal is directed against the order of the learned District Judge, Karachi, dated the 16th of March 1964, by which he came to the conclusion that the execution application of the decree‑holder appellant was within time, and concluded his order as follows:‑ "Considering in this latest position of law in this respect I hold that all the instalments (within) three years of the execution petition, are within time. The objections filed by the judgment- debtors 2 and 3 are accordingly disposed of. Execution proceedings to continue in the light of the directions stated above. Counsel says that in pursuance of the above order the decree‑holder appellant moved the executing Court for the issuance of a writ of attachment, to which an objection was taken by the office of the executing Court to the effect that attachment could be issued with respect to those instalments only which were within three years of the date of the execution application. If this interpretation, placed by the office on the above‑quoted order, is correct, then no writ of attachment can be issued.

3. The background is that a suit was filed by the decree- holder appellant for the recovery of certain amounts of money against the respondents, it was compromised, and a consent decree for Rs. 5,098 was granted with a provision that this amount was payable by instalments of Rs. 100 per month. The instalments were to begin from the 15th of August 1958. The effect of this decree was that the total amount was to be paid in fifty‑one instalments, last of which was to be paid on the 15th of October 1962. The judgment‑debtors paid the first instalment of Rs. 100 on the 14th of March 1959; then they paid Rs. 296/25 on the 8th of August 1959. The decree‑holder, therefore, filed an execution application on the 16th of January 1962, for the recovery of the entire balance with interest in the amount of Rs. 7,660/94. Notices were issued to the judgment‑debtors but according to counsel, none of the judgment- debtors could be served. Attempts to get the judgment debtors served continued, but after about a year, that is, on the 5th of January 1963, the execution application was dismissed for default.

4. On the 15th of January 1963, a fresh execution application was made and service was effected on the judgment‑debtors. They appeared and raised the objection that the application was barred by time. That objection has been overruled by the executing Court, vide the order from which this appeal has been preferred.

5. It appears from the contents of the order that the trend of arguments was that the second application was within time because the decretal amount was to be paid by instalments and it was open to the decree‑holder, in spite of the default and a default clause in the decree to forego the advantage of recovering the entire balance amount at once and to wait for recovery until the whole period extended by virtue of instalments expired. If the period extended by instalments be taken into consideration, then it was contended, the second execution application was within time. It appears that during the arguments an impression was created that limitation of time applied in execution proceedings to the recovery of decretal amounts as if they were claims made in suits and not to execution applications. This impression resulted in the conclusion, which has been reproduced above that the execution application is within time with respect to those instalments only which were within three years of the execution application.

6. With all respect, the correct situation to my mind, is that the execution application was governed by section 48, C. P. C., which fixes the overall period of twelve years or more in terms of its provisions and clause (5) read with clause (7) of Article 182 of the Limitation Act which prescribes the period for making execution applications. The Article provides that for an execution application of a decree, not provided for by Article 183 or by section 48 of the Code of Civil Procedure, the period of limitation is three years where the decree is not registered. This period for making applications commences under clause (7) when there is a date fixed for payment from such date, and under 'clause (5) the period becomes extended if a step‑in‑aid of execution is taken. In this case, the question arose as to whether the decree‑holder was entitled to file an execution application in January 1963, in spite of the fact that the first default was committed on the 1st of April 1959. Perhaps the contention was that if the period of limitation was computed from April 1959, the period of three years expired in April 1962. This contention was repelled on the basis of the view which has been expressed in Ranglal v. Syamlal ((1946) Cal. 500 (F B)). According to that Full Bench judgment, a decree‑holder who is entitled to recover the decretal amount by instalments is not bound to proceed to recover the whole amount even if it becomes due by default and can wait until the period within which the instalments are payable expires. In this view of the matter, the decree‑holder in this case could wait till the period up to the 15th of October 1962, expired and then apply for execution within three years of it. The first application was made on the 16th of January 1962, and notices were issued to the judgment‑debtors but were not served on them. Several attempts were made to get them served until the appli cation itself was dismissed for default. The attempts that were made for service and the orders that were made in that respect by the executing Court, taken together, were steps‑in‑aide towards the execution of the decree. Apart from that: since the last date on which the instalments were to be completed, was the 15th of October 1962, the second application which was made on the 15th of January 1963, was within time. It was, to my mind, within time from this point of view as well as from the point of view that the first execution application and efforts made to pursue it were steps‑in‑aid towards the execution of that decree.

7. I may add here that limitation for execution is not governed by those Articles of the Limitation Act which govern the limitation for institution of suits. Thus there cannot be different periods of limitation for recovering decretal amount and for making execution applications. Both converge on the same point of time, which is the limitation for execution proceedings.

8. In view of the above, I accept this appeal and modify the order of the learned District Judge, dated the 16th of March 1964, so that it is to be read as containing the conclusion that the execution application is within time. This makes the whole amount due to the decree‑holder recoverable by execution of the decree. A.H Appeal accepted.