1984 PLP 1907 (CLC)

(a) Civil Procedure Code (V of 1908)

‑ ‑‑ S. 48 as amended by Law Reforms Ordinance (XII of 1972), C. P. C item 2 & O. XXI‑Limitation Act (IX of 1908), Art. 183‑--Retrospectivity of legislation‑Execution of decree ‑ Amendment curtailing period of limitation from 12 years to 6 years not restrospective and does not affect vested and substantive rights‑Restrosprctive effect, in absence of express enactment or necessary intendment could not be given to such amendment.‑[Interpretation of statutes]. Adrian Afzal v. Capt. Sher Afaal P L D 1969 S C 187 ref. ‑‑ O. XXL‑Decree, execution of‑Nature of rights of decree‑holder‑ To seek execution of a decree; a substantive right‑Any amendment in procedural law, including limitation, cannot be so interpreted as to take away or abridge that right unless contrary intention is discernible. National Bank of Pakistan v. Hyderabad Tando Fazal Bus Service 1980 C L C 1146 and Nazir of the Court v. Haji Dost Muhammad 1981 C L C 372 ref. Respondent (absent). This Revision is directed against the order, dated 17‑8‑1974 passed by the learned District :fudge, in Execution 105 of 1973 filed by the appellant. The applicant bad filed suit as 918 of 1961 against the respondent for recovery of Rs. 6,631.31, which was decree on 27‑7‑1961. The First Execution Applica tion No. 11 of 1962 was filed on 1‑5‑1962 and was dropped on 13‑7‑1963. The second Execution Application No. 12 of 1965 was filed on 6‑1‑1965 and was dismissed on 15‑12‑1965. The Third Execution Application was filed on 20‑11‑1968 which was clearly within time but the same was misplaced in the office of the Court subsequently a duplicate Execution Application was filed on 5‑11‑1969 which was numbered as Exh. 195/69 which was dropped. The fourth Execution Application was filed on 19‑2‑1972 which was numbered as Ex. No. 105 of 1973. The respondent judgment‑debtor bad filed an applica tion under section 3 of the Limitation Act stating therein amongst other grounds that the application is time‑barred. After hearing the arguments of the learned counsel for the parties, the learned District Judge by his order 17‑8‑1974 dismissed the execution application holding that the Third Applica tion which was number as Ex. 195 of 1969 was time‑barred and in conseqnence thereof, the fourth Execution Application was dismissed. The applicant being aggrieved has preferred this Revision on the grounds mentioned in the memo. of application. Mr. Mansooi‑ul‑Arfin the learned counsel for the applicant has contended that the execution application in question will be governed by the unamended provision of section 48, Civil Procedure Code so far as the question of Limita tion Act is concerned. According to the learned counsellor the applicant Article of the Limitation Act applicable in the present case is Article 183 of the First Schedule to the Limitation Act, 1908 is reproduced here; "

183. To enforce a judgment decree When a present right to enforce or order of any (High Court) the judgment, decree or order in the exercise of its ordinary , accrues to some person cap original civil jurisdiction, or able of releasing the right an order of (the Supreme Provided that when the judgment Court). decree or order has been revived or some part of the principal money secured there by, or some interest on such money has been paid, or some acknowledgment of the right thereto has been given in writing signed by the person liable to any such principal or interest, or his agent, to the person entitled thereto or his agent, the twelve years shall be computed from the date of such revivor payment acknowledgement or the latest of such revivors, payment or acknowledgments, as the cage may be." "The general principle with regard to the interpretation of statues as laid down in the well‑known case of the Colonial Sugar Refining Company Limited v. Irving is that `if the matter in question be a matter of procedure only', the provision would be retrospective. On the other hand, if it be more than a matter of procedure, if it touches a right in existence at the passing of the Act', then `in accordance with a long line of authorities extending from the time of Lord Coke to the present day', the legislation would not operate retrospectively unless the Legislature had either `by express enactment or by necessary intendment' given the legislation retrosprective effect. To the same effect are the observations of Jassel, Master of the Rolls in the case of In re Joseph Suche & Co. Ltd., where it was observed that as `a general rule when the Legislature alters the rights of parties by taking away or conferring any right of action, its enactments, unless to express terms they apply to pending actions; do not affect them. It is said that there is one exception to that rule, namely, that, these enactments merely affect procedure and do not extend to rights of action, they have been held to apply to existing rights." To seek execution of his decree is a substantive right of a decree‑holder. Unless a contrary intention is discernible any amendment in the procedural law, including limitation, cannot be so interpreted, as to take away or abridge that right. In support of my view, I would refer to the decision of this Court in National Bank of Pakistan v. Hyderabad Tando Fazal Bus Service (1980 C L C 1146) and Nazir of the Court v. Haji Dost Muhammad (1981 C L C 372). As regards the other contention of the learned counsel for the applicant that the Third Execution Application No. 195 of 1969 was not time‑barred i.e. within three years from 15‑12‑1965. The contention of the applicant is that the Third Execution Application was only duplicate application and the original application was filed earlier in Court and was registered at No. 2463 on 20th November, 1968. By order dated 2‑6‑1983 of this Court the original register of Execution for the year 1 968 was called from the Court of District Judge, Karachi. I have seen the original Register for the year. It appears from the register that an Execution Application was filed in Suit No. 918 of 1961 at Serial No. 2463. It seems that the application was misplaced by the office of the District Judge, Karachi. I am of the view that the Third Execution Application was presented within a period of three years from the date of dismissal of Second Execution Application. The Second Execution Application was dismissed on 15‑12‑1965. I am, therefore, of the view that the above facts have not been taken into due consideration by the learned District Judge while dismissing the Execution Application, and therefore, the impugned order dated 17‑8‑1974 is to be set aside. The result is that the Revision is allowed, impugned order is set aside. I remand the case to the Court of District Judge, for disposal of Execution Application in accordance with law and after affording opportunities to both the parties. M. B. A. Petition allowed