2003 PLP 1908 (YLR)

Ali Ahmad and another v. Muhammad Fazal and another PLD 1973 Lah. 207 ref. Mujeeb-ur-Rehman Mani for Petitioner. Zahoor Ahmad Bokhari for Respondent. Date of hearing: 31st March, 2003. A decree for possession through pre emption had been passed in favour of Muhammad Rafiq respondent and against Dost Muhammad petitioner/defendant, in Civil Suit No.376 of 1983, vide judgment decree dated 31-3-1986. The appeal filed by the defendant/vendee/petitioner had also been dismissed: The petitioner also remained unsuccessful in the revision petition and Civil Petition for Leave to Appeal No.972 of 1988 which was dismissed on 14-1-1999.

2. The decree-holder/respondent has filed an execution petition on 4-2-2002 which was objected by the judgment-debtor that the decree for pre-emption passed in favour of the plaintiff/decree-holder cannot be enforced through an execution petition as the same was barred by three months. The Executing Court dismissed the objection petition vide his order dated 15-11-2002 observing that the same was barred by limitation. The appeal filed by the plaintiff/respondent has met with success vide judgment dated 21-12-2002 passed by the earned Additional District Judge, Attock, who while allowing the appeal remanded the case to the Executing Court with the direction o proceed in accordance with law. The above said order of the learned Appellate Court has been called in question through the instant revision petition.

3. Learned counsel for the petitioner has contended that the decree passed by the learned trial Court had lost the merge into the decree of the Supreme Court after dismissing the Civil Petition for Leave to Appeal No.972 of 1988 filed by the petitioner on 14-1-1999 whereas the execution petition had been filed on 8-4-2002 which is barred by limitation about three months. In support of his contention, reliance has been placed on Maulvi Abdul Qayyum v. Syed Ali Ashgar Shah, and 5 others 1992 SCMR 241.

4. On the other hand, learned counsel for the respondent has vehemently opposed the arguments of the learned counsel for the petitioner contending that the execution petition was filed quite within time and Article 183 of the Limitation Act, 1908, is attracted to the facts of the present case which has provided the period of limitation for enforcement of judgment and decree as six years. He has also contended that the Revenue functionaries are bound to implement the decree for pre-emption even if the time for filing of the decree has expired. In this context, he relies on Ali Ahmad and another v. Muhammad Fazal and another PLD 1973 Lahore 207.

5. I have heard the learned counsel for the parties and perused the record. Article 182 of the Limitation Act, 1908, has been omitted by amendment in the Law Reforms Ordinance, 1972, whereas, Article 183 of the Limitation Act deals with the enforcement of judgment, decree or order of any High Court in the exercise of its ordinary original civil jurisdiction or an Order of the Supreme Court. No limitation has been provided for execution of a decree of the trial Court which even merged into the decree of the final Appellate Court and where no period of limitation is provided elsewhere in the Schedule or by section 48 of the Code of Civil Procedure, the provisions of Article 181 of the Limitation Act would be attracted to that case which has provided the period of limitation for three years.

6. The decree of the trial Court has been merged into the decree of the Supreme Court under the rule of merger. Article 181 of the Limitation Act does not refer either to decree of Appellate Court or revisional Court but anchors commencement of limitation period on accrual of right to apply and such right legitimately arises when the appeal is finally disposed of by the Supreme Court by one way or the other. In the above said case of Maulvi Abdul Qayyum, the Honourable Supreme Court has observed that a petition for execution of the decree has to be made within three years of the date of accrual right to apply and as to when such right arises.

7. The decree in a pre-emption suit is of a peculiar nature and according to the provisions of rule 14 of Order 20, C.P.C, the title of the property accrues to the decree holder on payment of purchase money in Court together with costs. Since no period of limitation for execution of a decree has been provided in the Limitation Act after the omission of Article 182, therefore, the residuary Article 181 of the Limitation Act is attracted in such circumstances and no other Article governing the period of limitation of execution of decree of the Civil Court is available. The instant execution petition has been filed after the expiry of three years with effect from the dismissal of Civil Petition for Leave to Appeal No.972 of 1988 of the petitioner dated 14-1-1999. The execution petition has been filed on 8-4-2002 which was barred by about three months. The learned trial Court has rightly dismissed the execution petition observing the same as barred by limitation, Therefore, the judgment of the learned Appellate Court is in conflict with the dictum laid down in the case of Maulvi Abdul Qayyum cited supra, as such the same is not sustainable in law, hence it is set aside. Resultantly, for the foregoing reasons, this civil revision is accepted with no order as to costs.

8. However, the pre-emptor after depositing the purchase money in the Court in compliance of the pre-emption decree becomes vested with the property and even ii the execution petition is barred by limitation, the Revenue functionaries are bound to implement the decree in the record as the right and title of the decree-holder to the property which he had acquired by virtue of decree for pre-emption is not extinguished. The decree-holder/respondent may approach the Revenue functionaries for redressal of his grievance in the shape of incorporating the decree for pre-emption in the Revenue Record as laid down in the case of Ali Ahmad and another v. Muhammad Fazal and another PLD 1973 Lahore

207. D-56/L Order accordingly.