1998 PLP 1068 (CLC)

2. A suit for specific performance of an agreement of sale, was filed by Sufi Noor Ahmad, petitioner herein, against Muhammad Boota (predecessor of respondents Nos. 1 and 2) and Miraj Din, who has not been impleaded as a party in this revision. The suit was decreed, on 19‑6‑1983, in terms of a compromise, recorded in 'Mark A'. The terms of compromise, amongst other, provided, that the petitioner would be entitled to the registration of sale‑deed, after payment of the loan amount, to Agricultural Development Bank of Chunian and by seeking redemption of the land. Instead, an application for execution of decree, was filed on 16‑4‑1994, i.e., after approximately, 11 years from the date of decree. The execution was resisted by respondents Nos. l and 2 while respondents Nos.3 to 6, filed objections, on the ground, that they had purchased 2/3rd share in the land, on 12‑4‑1994, the consideration of Rs.1,40,000 from Sabir Ali son of Muhammad Boota, while Kalsoom Bibi daughter of Muhammad Boota transferred her share in their favour and the two transactions were given effect through Mutations Nos.95 and

97. They claimed to be in possession of the land as a bona fide purchaser for value. It was claimed, that the loan amount was paid by the purchaser, to the Agricultural Development Bank, by deposit of the amount in the name of judgment‑debtor. The execution application was also challenged on the ground of being barred by time.

3. The learned Civil Judge, accepted objections and also dismissed execution application. It was observed, that the decree‑holder failed to get the property redeemed and that the application for execution was barred by time, as it was filed after 11 years.

4. In appeal, the learned Additional District Judge, took the view, that the petitioner decree‑holder, did not fulfil his obligations in terms of the decree and failed to either redeem the land or make payment of the loan amount. He also took note of the fact, that the decree was never registered with the Revenue Authorities and that the respondents Nos.3 to 6 were bona fide purchasers. The execution application was dismissed, as it was observed, that the same was not filed within three years under Article 181 of the Limitation. Act.

5. Learned counsel for the petitioner, argued, that no time was fixed in the decree for payment of the loan amount and that nothing was to be done by the judgment‑debtor and, therefore, the petitioner could enforce the decree, at any time, by making payment of the loan amount. He submitted, that the non- execution of decree for specific performance, would not result in rescission of the contract and that the petitioner could file execution application at any time. He also submitted, that the decree could be treated as a preliminary decree and that respondents Nos.3 to 6 being transferees subsequent to the decree could not claim any protection in law. Lastly, it was submitted, that the payment was made by the petitioner which was admitted in the reply.

6. Conversely, learned counsel for respondents Nos.3 to 6, submitted, that petitioner committed fraud, as they collusively got a reply filed through an alleged attorney of the judgment‑debtor, whose power of attorney had already been cancelled. The reply was unauthorised. The judgment‑debtor, brought this fact to the notice of the Court and he was allowed to file amended reply, in which, he denied, the plea of payment by the petitioner. Even otherwise; he submitted, that the bank challan, would show, that no payment was made by the petitioner and that the amount was deposited by respondents Nos.3 to 6, on behalf of the judgment‑debtor. He submitted, that application for execution could be filed within three years which having not been filed execution petition was rightly dismissed. Lastly it was submitted, that respondents Nos. 3 to 6 were bona fide purchasers, who purchased the land, after the decree had become in executable and after making bona fide inquiries from the revenue record, which did not indicate any subsisting charge upon the property.

7. I have considered the submissions, made by learned counsel for the parties and have been taken through the material annexed with this petition.

8. The decree in this case, was passed, on 19‑6‑1983, while execution petition, under Order 21, Rule 10 of C.P.C., was filed on 16‑4‑1994 i.e., after 11 years, approximately. After deletion of Article 182 of Limitation Act, through Law Reforms Ordinance, execution of decrees are governed by Article 181 of the Limitation Act, which provides for a period of three years. Section 48 of C.P.C., does not apply to the first application but it applies, to the subsequent application, presented for execution of the decree. Unless and. until, the first application is moved within three years, the decree‑holder cannot derive benefits of section 48 of C.P.C., which provides for a period of six years, for the fresh application. In Mehboob Khan v. Hasan Khan Durrani (PLD 1990 SC 778), it was held, that with the disappearance of Article 182 of Limitation Act, by virtue of amendment, introduced by Law Reforms Ordinance, 1972, no other Article of Limitation Act was specifically attracted to the application for execution of decree and, therefore, residuary Article 181 would be applicable to the first application for execution of decree, while fresh application can be presented, within six years. It was further held, that fresh application would mean application for execution after the dismissal of the first application. The operative part of the judgment, reads as follows:‑‑‑ "As section 48, C.P.C. is mentioned in Article 181 by way of exclusionary provisions obviously this Article has to be read with section 48, C.P.C., although the two provisions are independent and parallel provisions with different scopes and objects. With the disappearance of Article 182 obviously no other Article of the Limitation Act is specifically attracted to the application for execution of the decree of a Civil Court, other than High Court. On the plain language of section 48, C.P.C. the object underlying that section was to provide an outer limit of time and prohibit the making of an order passed execution of a decree on a 'fresh' application 'presented' after expiration of six years from the date of the decree etc. In order to see whether in the present case the limitation contained in section 48 is attracted or not it is necessary to determine whether execution was sought on a fresh application presented after the said period. The word 'fresh' has been defined in the Oxford English Dictionary, Volume IV, to mean, inter alia, 'new, recent' or 'newly made'. It, therefore, appears that the application within the contemplation of the prohibition contained in section 48 was not the first execution application but any subsequent application, after such first application, which was presented beyond the prescribed period of six years. Construed in this light, and reading the two provisions together, it would appear that the effect of the amendment made by the Law Reforms Ordinance, 1972, is that the first application for the execution of the decree of a Civil Court would be governed by the residuary Article 181 prescribing a period of three years and since any subsequent or fresh application for execution would be governed by section 48, C.P.C., it would be out of the purview of Article 181 of its express terms. In some of the Indian Decisions the expression 'fresh application' has been construed to mean application for execution after the disposal of the first execution application. See Yadorao Wasudeorao Pathak v. Govindrao Ramji Pant AIR 1939 Nag. 245 Lekshmi Amma Kochkutty Amma and aonther v. Raman Pillai Kumara Pillai and others AIR 1952 Travancorc‑Cochin 268 and Venlappa and others v. Lakshmikant Rao AIR 1956 Hyd.

7. The position that emerges from the above discussions is that, as already stated, the first application for execution of a decree would be governed by the residuary Article 181 and the rest of the applications made, thereafter, will be governed by the six years time limit prescribed by section

48. Although the original purpose under lying section 48, read alongwith Articles 181 and 182 of the Limitation Act, before the amendment of the law was to provide maximum limit of time for execution of a decree. But in the changed position as a result of Law Reforms Ordinance, the only effect of section 48 would be to provide limitation for subsequent execution of applications after the first one. The result would be that if no application at all is made within the period prescribed by Article 181, the execution application made, thereafter, would be barred under the said Article and as such there would be no occasion to avail of the benefits of the extended time provided by section 48, C.P.C. In other words once an application for execution is made within time so prescribed, any number of application for execution can be presented within the six years period from the date of decree. This construction, in my opinion is the only construction that can be placed on the consequent legal position arising out of the amendments made by the omission of Article 182 and substitution of six years period in section 48, C.P.C. Otherwise the provisions for repeated applications every three years are taking steps in aid of execution provided for in Article 182, having disappeared, section 48 would become redundant and ineffective. In this view of the matter since in the present case the first application for execution was submitted beyond the period of limitation prescribed by Article 181 the learned Single Judge was right in holding that the same was out of time. "

9. In view of the rule laid in the case noted (supra), first application fort execution of a decree can be filed; within three years, under Article 181 of the Limitation Act. The decree in this case was admittedly passed on 19‑6‑1983 while no application for execution was moved, within three years. The application, out of which the present revision was arisen, was the first application, which could be filed within three years. Section 48 of C.P.C. had no applicability to the facts of the present case. Even otherwise, no benefit could be derived under this provision of law, as the application is not claimed to have been filed within six years. The execution application, having been filed, on 16‑4‑1994 was barred by time. The argument, that nothing was to be done by the judgment‑debtor and that the petitioner could apply for execution at any time, without any limitation, is without substance. Admittedly, the petitioner could not conclude the transaction without indulgence of the Court. For seeking indulgence of the Court, he was supposed to adhere to the statutory restrictions. By failing to approach within time limitation, prescribed in law, the petitioner could not take benefit of his own wrong. Similarly, the argument, that the agreement was not rescinded under section 35 of the Specific Relief Act, need not be attended to for the reason, that the agreement became inoperative, on account of the fact, that the decree had become in-executable, by lapse of time. Even if, as argued by the learned counsel for the petitioner, the decree was treated as a preliminary decree, the petitioner could apply, for a final decree, , within three years under Article 181 of the Limitation Act. It is not a case, where an application has been filed for seeking extension in time to deposit the amount under the decree, rather, it is a case, in which the decree‑holder, failed to apply for execution of a decree, within the prescribed period of limitation. Therefore, the Court, in execution proceedings, will not be in ‑a position, to extend period of limitation, for execution of decree, beyond the period prescribed in law. In the given circumstances, the execution petition, was barred by time, which was rightly dismissed by the Courts below. Even otherwise in the circumstances of the case, the petitioner is not entitled to any indulgence. The decree was passed against Boota and Miraj Din. The petitioner has note impleaded, Miraj Din, as party in the present proceedings. Similarly, he did not deposit the loan amount, which was deposited by respondents Nos. 3 to

6. The petitioner claimed, that he had made payment, to the judgment‑debtor for deposit of loan which is not substantiated by any receipt and in law, any alleged payment, for satisfaction of decree, out of the Court, not supported by any document, cannot be entertained. The petitioner, remained inactive for a period of 11 years. It was only, after respondents Nos. 3 to 6 had acquired interest in the property, for valuable consideration, that the petitioner filed the execution application, to exploit the situation. His conduct, therefore, does not warrant indulgence even in discretionary jurisdiction.

10. For the reasons above, this revision is devoid of any merit, which is accordingly dismissed, leaving the parties to bear their own costs. A.A./N‑87/L Revision dismissed.