2016 PLP 1779 (MLD)

ATIR MAHMOOD, J.

Through this appeal, the appellant has impugned order dated 04.06.2005 passed by learned Civil Judge, Mailsi whereby the execution petition of the appellant was dismissed being barred by time.

2. Brief facts of the case are that the appellant filed a suit under Order XXXVII, Rules 1 & 2 C.P.C. for recovery of Rs.50,46,321.60 against the respondents-defendants which suit was decreed by learned Additional District Judge, Vehari vide judgment and decree dated 06.07.1995. Feeling aggrieved, the respondents-defendants preferred R.F.A. No.98/1995 before this Court on 15.10.1995. The appeal was admitted for regular hearing and notice was issued to the appellant. A C.M. for interim injunction was also filed by the defendants along with the RFA wherein notice was issued but no stay was granted. After about nine years of filing of the appeal, the respondents withdrew the appeal on 14.06.2004. Thereafter, the appellant filed an execution petition on 01.09.2004 which was dismissed by the learned Civil Judge Mailsi vide impugned order dated 04.06.2005 holding that the execution petition was time barred. Hence this appeal.

3. Learned counsel for the appellant inter alia contends that since judgment and decree passed in favour of the appellant was challenged before this Court by the respondents through RFA which was admitted for regular hearing, there was no occasion for the appellant to move an execution petition. He asserts that when the proceedings before an appellate court are pending, the decision of which might deprive execution petitioner at a later stage from the fruits gained by him, the execution petition cannot be filed during the pendency of the appeal before the appellate court as terminus a quo of time limitation will be the date of decision of the appellate Court before which the appeal has been preferred and not from the date of passing of the judgment and decree, therefore, the execution petition of the appellant was within time as RFA filed by the respondents-defendants was dismissed as withdrawn on 14.06.2004 and the execution petition was filed by the appellant on 01.09.2004. He next argues that the executing court has not framed any issue and decided the objection petition without recording the evidence which is against the law. He submits that the act of challenging judgment and decree by way of filing appeal and then withdrawing the same by the respondents amounts to fraud which cannot be protected under the law. He, therefore, prays that this appeal be allowed, the impugned order be set aside and order of execution of the decree be passed. In support of his contentions, learned counsel for the appellant has relied upon the law laid down in cases reported as "Union of Indian and others v. West Coast Paper Mills Ltd. and another (AIR 2004 SC 1596)", "Jokhan Rai v. Baikhunth Singh (AIR 1987 Patna 133)", "Gyaniram v. Gangabai (AIR 1957 MP 85)", "Saifur Rahman and others v. Haider Shah and another (PLD 1967 SC 344)", "Maulvi Abdul Qayyum v. Syed Ali Asghar Shah and 5 others (1992 SCMR 241)", "Nawabzada Tilla Muhammad Khan v. Haji Muhammad Afzal and 4 others (2012 YLR 2236)", "Hakim Khan v. Saz Gul and others (2004 YLR 351)", "Muhammad Umar Gul v. Ikram Ullah Khan (1997 MLD 1917)", "Dost Muhammad v. Muhammad Rafiq (2003 YLR 1908)", "Nagendra Nath Dey and another v. Suresh Chandra Dey and others (AIR 1932 Privy Council 165)", Uma Shankar Sharma v. The State of Bihar and another (AIR 2005 Patna 94)" and a judgment dated 26.09.2008 passed by Patna High Court in Civil Revision No.2105/2000.

4. On the other hand, learned counsel for the respondents has vehemently opposed the averments made by learned counsel for the appellant and fully supported the impugned order. He avers that the execution petition filed before executing court was badly barred by time. He maintains that since there was no stay granted to the respondents-defendants in the RFA filed by them, the appellant was at liberty to move the execution petition before the executing court which was not done within the time limitation, therefore, it could not be entertained by the executing court after expiry of time, as such, the execution petition was rightly dismissed by the lower court. He prays that this appeal having no merit be dismissed. In support of his assertion, learned counsel has relied upon the law laid down by the Hon'ble Supreme Court of Pakistan in case reported as "Bakhtiar Ahmed v. Mst. Shamim Akhtar and others (2013 SCMR 5)".

5. I have heard the arguments advanced by learned counsel for the parties and also perused the record.

6. The appeal was preferred against the judgment and decree passed by the trial court which was admitted for regular hearing by this Court but operation of the impugned judgment and decree was not suspended by this Court. Since the matter remained pending before this Court for considerable time of about nine years but the decree holder despite the fact that operation of the impugned judgment and decree, was not suspended, never opted to file any execution petition. After about 9 years of filing of the appeal the respondent-judgment debtor withdrew the appeal on 14.06.2004.

7. After dismissal of appeal of the respondent-judgment debtor, the execution petition was filed by the appellant on 01.09.2004 which was dismissed by the executing court vide impugned order dated 04.06.2005 on application of the respondent filed under Section 3 of the Limitation Act holding that the execution petition was barred by time as it was not filed within the specified period of three years commencing from the date of passing of the decree. Learned counsel for the appellant has tried to make out a case of merger by submitting that the appeal is continuation of the proceedings, as such, the execution petition was filed within the limitation as the appeal as dismissed on 14.06.2004 and execution petition was filed on 01.09.2004. I am afraid that the contention of learned counsel for the appellant does not hold water. There is no cavil to the proposition that the appeal is continuation of the proceedings but at the same time, rule of merger is applicable when the decree of the trial Court is modified, reversed or affirmed by the appellate court. The contention of learned counsel for the appellant is even not supported by the case law relied upon by him. The principle of merger was elucidated by the Hon'ble Supreme Court of Pakistan in case reported as "1992 SCMR 241 (Maulvi Abdul Qayyum v. Syed Ali Asghar Shah and 5 others)" in the following terms: " there are some exceptions to the rule of merger, for instance, there will be no merger on the rejection of the appeal under Order XLI, rule 10 or dismissal in default under Order XLI, rule 17 (see Balakanat v. Mst. Muni Dail (AIR 1914 PC 65) or when appeal is withdrawn or abates. These instances are pointer to the situation when the appeal is not disposed of on merits. Further the merger is for a limited purpose of computation of period of limitation and execution of the decree." (Underline is mine) This principle was further elaborated by the august Supreme Court in case cited as "2003 SCMR 436 (Muhammad Nazir and another v. Qaiser Ali Khan and 4 others)" as under:-- "The objection of the appellants that the execution petition having not filed within three years from the date of decree, therefore, notwithstanding the pendency of appeal it would become time-barred, has no substance. The appeal being continuation of suit, the decree in the suit would only be finalized on the disposal of appeal as the decree of the Court of first instance would merge into the decree of Appellate Court which alone could be executed. However, till the time appeal or revision was not filed or such proceedings were pending and no stay order was issued, the decree would remain capable of execution but if the decree was under challenge in pending appeal or revision and was not executable, the decree ultimately passed by the decree of the Court of last instance in appeal or revision as the case may be, would be executed irrespective of the fact that the decree of the lower Court was modified affirmed or reversed." The rule of merger has also been discussed in a recent judgment of the Hon'ble Supreme Court reported as "2013 SCMR 5 (Bakhtiar Ahmed v. Mst. Shamim Akhtar and others)". Relevant portion from the said judgment is given hereunder: " where stay is granted by the Appellate/Revisional Court, time can be extended for such period the decree remained under suspension. In the instant cast a right has been accrued in favour of the respondent in terms of the order of the High Court and admittedly no stay or leave to appeal was granted by this Court as such the period of limitation would run from the decree passed by the High Court and no extension of time can be granted."

8. For what has been discussed above, it is evident that the appeal though is a continuation of proceedings yet rule of merger will apply if the decree of the trial court is modified, reversed or affirmed by the appellate court. If the stay is granted by the appellate court, the time for execution petition may be extended till the time decree remains under suspension. If the stay is not granted and the appeal preferred against the decree is withdrawn, disposed of or so without deciding the appeal on merits, terminus a quo for computation of time for filing of execution petition will be the date of passing of the decree. In the instant case, no stay was granted by this Court in the appeal preferred by the respondent-judgment debtor against the judgment and decree dated 06.07.1995 which was ultimately withdrawn by him on 14.06.2004. Despite filing of the appeal against the decree dated 06.07.1995, the decree remained executable, as such, limitation for filing of execution petition started from the date of passing of the decree and continued for three years ending at 05.07.1998. But the decree holder did not file the execution petition for about nine years till 01.09.2004 when he moved execution petition after withdrawal of the appeal by the judgment debtor. In the circumstances, the execution petition was badly barred by time. Under the law, each and every day of delay is required to be explained but the appellant has failed to do so. The order passed by learned executing court is in accordance with law which does not call for interference by this Court. No interference is called for. As a result, this appeal is bereft of any merit, hence dismissed. ZC/P-7/L Appeal dismissed.