2012 PLP 2236 (YLR)

QAISER RASHID KHAN, J.

The petitioner has called in question the judgments and orders of both the courts below, vide which they dismissed the application of petitioner for rejection/ dismissal of the execution petition of the respondent No.1 being time-barred.

2. Facts leading to the instant petition are that the respondent No.1 had filed a recovery suit for a sum of Rs.25,000 against the petitioner and respondents Nos.2 and 3, which was decreed on 21-4-2003 and was upheld upto this court. Finally on 15-5-2007, the respondent No.1/decree holder filed an execution petition before the learned executing court. The petitioner/ judgment-debtor submitted, an application under Order VII Rule 11, C.P.C. before the learned executing court to the effect that execution petition filed by the respondent No.1 was time-barred, as the suit was decreed by the learned trial court on 21-4-2003. Both the learned lower courts did not accept such plea of the petitioner vide judgments and orders impugned herein.

3. Learned counsel for the petitioner argued that both the courts below have not appreciated the true contents of his application under Order VII Rule 11, C.P.C. for rejection of the execution petition, as respondent No.1 sought the execution of decree in Suit No. 128/1 Neem, passed vide judgment dated 21-4-2003 after a lapse of more than four years which was badly time barred under Article 181 of the Limitation Act; that according to the judgments of the superior courts, first execution petition could be filled within three years from the date when the court of first instance passed the decree, but respondent No.1/decree-holder failed to file the execution petition within time which is hit by the Limitation Act, but both the courts below have not appreciated this aspect of the case; that judgments and orders of both the courts below are against law, without lawful authority and be thus set aside and the execution petition of the respondent No.1 is liable to be rejected. The learned counsel for the petitioner referred to PLD 1990 SC 778 and 1996 SCMR 759 in support of his arguments.

4. Conversely, learned counsel for the respondent No.1 argued that suit of the respondent No.1 was decreed by the learned Civil Judge on 21-4-2003, appeal against the same was dismissed and revision petition before the High Court was also dismissed on 5-7-2006, while execution petition was filed by the respondent No.1/decree holder on 15-5-2007, which was well within time as the decree of the trial court merged in that of the appellate court and revisional court; that both the courts below have properly dismissed the application of petitioner and rightly held the execution petition to have been filed within time.

5. We have given our anxious thought to the arguments of learned counsel for the parties and perused the record.

6. Admittedly the recovery suit of the respondent No.1 was decreed against the petitioner and respondents Nos.2 and 3 for a sum of Rs.25,000 on 21-4-2003, appeal against the judgment and decree was dismissed on 16-12-2003 and so was the case with the revision petition which too, met the same fate on 5-7-2006. Consequently, when the execution petition was filed by the respondent No.1/decree holder on 15-5-2007, the petitioner/ judgment debtor submitted an application under Order VII Rule 11, C.P.C. for rejection/dismissal of the execution petition being time-barred.

7. It goes without saying that first application for execution of a decree is governed by the residuary Article 181 of the Limitation Act, 1908, which provides for three years period and for the follow up applications, section 48, C.P.C. would come to the fore, which provides for six years time limitation. So far so good. Next comes the question, as to whether any appeal or in turn revision petition is preferred against the judgment and decree and as to whether the decree of the lower court is affirmed, reversed or modified. It needs no reiteration that in the absence of any appeal or revision against the judgment and decree of the trial court, only that very decree would be capable of execution. However, after affirmation of the decree of the trial court in appeal, decree in field would only be that of the appellate court. As per rule of merger, the decree of the trial court would merge into that of the appellate court or for that matter in the decree passed in the exercise of revisional jurisdiction. In the case in hand too, the decree passed by the learned trial court on 21-4-2003, merged into that of the learned appellate court after its affirmation, vide its judgment and decree dated 16-12-2003. In this regard wisdom may advantageously be sought from the case titled" Maulvi Abdul Qayum v. Syed Asghar Ali Shah and 5 others reported in 1992 SCMR 241 wherein the principle of merger has been elaborately explained. The judgments referred to by the learned counsel for the petitioner are distinguishable from the facts of the present petition. In those cases no appeals/ revisions were preferred against the judgments and decrees of the trial court and thus the doctrine of merger was not attracted there as against the instant matter.

8. For the reasons stated above, the execution petition filed by the respondent No.1 before the learned executing court was well within time. The impugned judgments and orders of both the courts below do not suffer from any illegality or jurisdictional error to warrant interference by this court in its constitutional jurisdiction.

9. Thus the instant writ petition being devoid of merits is dismissed, with no order as to costs. K.M.Z./130/P Petition dismissed.