P L D 1967 Supreme Court 344 (PLP)

HAMOODUR RAHMAN, J.‑This appeal, by special leave, is directed against the judgment and order of a learned Single Judge of the High Court of West Pakistan, Peshawar Bench, in a revision petition arising out of an execution proceeding. Leave was granted in this case on the 28th of January 1963, but the litigation culminating in this appeal originated more than 29 years ago on the 3rd of January 1938, with a suit being No. 10/1 of 1938, .instituted by the first respondent herein for the possession of 34 kanals and 10 marlas of land situated in Mouza Kalu Shah, Tehsil and District Mardan. The series of litigations since have made it necessary to enter upon a short account thereof in order to obtain a clear picture of the facts leading up to this appeal and to ascertain as to what is the precise question in dispute now. In this suit the original defendants were the predecessors‑in interest of the first two appellants, the third appellant, the second respondent and one Ztarat. Haider Shah, the plaintiff in this suit, claimed possession on the basis of his occupancy tenancy rights. The trial Court decided only the issue relating to title and since it came to the conclusion that the plaintiff had failed to establish his occupancy tenancy title it dismissed the suit without trying the other issues. But on appeal the Additional Judge of Peshawar took a contrary view on the question of title, allowed the appeal and remanded the case back to decide the other issues raised in the suit. During the pendency of the hearing of the suit on remand the defendants Ziarat and Abdur Rahman died and their heirs were brought on the record. Three of these were minors, namely, Mehtab Khan, the son of Ziarat Khan and the present appellants Nos. 1 and 2, the sons of Abdur Rahman. The reader of the Court was, accordingly, appointed guardian‑ad litem of the minors on the 26th of October 1939. Subsequently, at the hearing of this suit, the sui juris defendants did not appear and the suit was defended only by the guardian of the minors. The suit was decreed ex parte against the non‑appearing defendants and on contest against the minor defendants and 4 decree for possession was passed in favour of the plaintiff Haider Shah on the 23rd February 1940. The latter put the decree into execution on the 7th October 1942 by Execution Case No. 774/10 of that year. In this execution a warrant for possession was issued but, it appears, that only symbolic possession could be obtained, as the land was under cultivation and the crop was still standing upon it. Although the respondent Haider Shah has filed a certificate (Exh. P. W. 1/5) dated the 8th December 1942, to show that actual possession was given to him, the Patwari's report (Exh. P. W. 1/6) shows that only symbolic possession could be given with respect to one Khasra number, being Khasra No.

98. Thereafter, the respondent Umar Kbitab filed Suit No. 558/1 of 1943 to have the ex parte decree of the 23rd February 1940, set aside on the ground that it had been obtained by suppressing the summons and by practising a fraud. The contention of Umar Khitab was that the summons showed him as resident in village Kalu while he had never resided there nor had any house there. This suit failed, as it was found that he actually had a house of three kothas at Kalu Shah and lived there and that substituted service was also effected upon him by proclamation and beat of drums, as he was avoiding service. The suit was also found to be barred by time. It transpired that a previous application for setting aside the ex parte decree on the same grounds had also been dismissed on 17‑6‑43 on the ground of limitation. This suit accordingly failed and was dismissed on the 24th March 1944. The said respondent Umar Khitab then went up in appeal but the appeal was also dismissed on 1st July 1944. In the meantime, the defendants, after several notices and a warrant had been issued, ultimately entered appearance in Execution Case No. 774/10 of 1942 on the 20th of May 1943 and the execution case was on their request adjourned till the disposal of the suit for setting aside the ex parte decree (Suit No. 558/1 of 1943), but was ordered to be put up again along with the record of the said suit on 27‑7‑1943. On the latter date, however, as the decree‑holder was not present the execution case consigned to the records, although the Suit No. 558/1 was still pending decision and the execution case had been ordered to be put up along with the suit. Evidently, since the suit was still pending the respondent Haider Shah took no further steps in the execution proceeding in the belief that according to the order of the executing Court, which was also the Court trying the second suit, the execution case would be put up along with the record of the suit. After the dismissal of the appeal from the decree dismissing Suit No. 558/ 1 with costs Haider Shah started another execution case, being Execution Case No. 65/10 of 1945, on the 25th January 1945, for the realization of the costs decreed in his favour. Then again on the 20th March 1945, he filed another execution case, namely, Execution Case No. 182/10 of 1945, for issuance of a warrant for possession (vide Exh. P. W. 2/3) and for the recovery of the costs awarded to him in Suit No. 10/

1. The warrant for possession was issued but was again only partially executed on the 1st of May 1945, vide Patwari's report (Exh. P. W. 3/1). This shows that actual possession could be given only of the portions which were lying uncultivated or from which the crop had already been harvested. The method, by which possession was given of the cultivated portions, which were free from any standing crop, was described in this report as "Kulba Rani" (ploughing). The substituted minor defendants in Suit No. 10/1 came into the picture at this stage and made an application for setting aside the decree there in which they alleged was passed ex parte. This application was registered as No. 38/6 of 1945. They then also got the warrant for attachment issued in Execution Case No. 182/10 stayed. Both the execution cases, namely, 65/10 and 182/10, were subsequently on 19‑7‑1945, it is said, consigned to the record as they were found to be tinexecutable for Vic present, presumably, because of the filing of the application for setting aside the ex parte decree. The said Application No. 38/6 was dismissed on 14‑1‑1916 on the ground that it was misconceived as the decree passed against the minor defendants was not an ex parte decree. The appeal against the said order was also dismissed on the 23rd September 1946. The minor defendants, however, filed another suit being Suit No. 610/10 of 1946 for setting aside the decree in Suit No. 10/1 on the ground that it had been obtained by practising a fraud upon the Court. This suit was also dismissed on the 19th October 1948 and the appeal from it also failed on the 7th March 1949. In the meantime, the respondent Haider Shah filed a fourth execution application (No. 312/10) on the 17th November 1948, for the execution of the decree in Suit No. 10/1. This was dismissed by the Subordinate Judge, Fourth Class, Mardan, on the 28th March 1949, as being barred by time, on the ground that it had been filed more than three years after the last execution case, namely, Execution Case No. 182/10, had been consigned to the record on the 19th July 1945. Haider Shah went up in appeal from this order contending that limitation should have been computed from the date of the dismissal of Suit No. 610/1 on the 19th October 1948. This appeal was allowed and the execution case was held to have been filed within time, but there was a revision from this order in the Court of the Judicial Commissioner, Peshawar, being Civil Revision No. 227 of 1949. The learned Judicial Commissioner by his order of the 12th February 1951, reversed the appellate order of the Senior Subordinate Judge, Mardan, holding that his finding was based on a misreading of the records of the execution case and‑ that he had thereby fallen into error in taking the view that the second Execution Case (No. 182/10) had been kept pending because of the application for setting aside the ex parte decree. Confronted with this decision Haider Shah was compelled to file another suit, being Suit No. 223/1 of 1951, for possession of the same lands. In this suit the trial Court found that Haider Shah had the occupancy tenancy rights he claimed but still the suit must fail on the ground of res Judicata by reason of SG the decree in Suit No. 10/1, even though the parties in the subsequent suit were not the same. The suit was, accordingly, dismissed on the 17th May 1954, and an appeal from that also ‑failed on the 12th September 1955. A revision to the Judicial Commissioner's Court met with the same fate on the 17th R' January 1956. Ultimately Haider Shah on the 31st July 1956, filed Suit No. 31/1 of 1956 for having the order of the Judicial Commissioner passed in Civil Revision No. 227/49 on the 12th February 1951, set aside on the ground that it had been obtained by practising a fraud upon the Court. The fraud alleged was that the present appellants and the respondent Umar Khitab had, in collusion with the officials of the Court of the Senior Sub‑Judge, Mardan, managed to have the file relating to Execution Case No. 65/10 annexed to the index form of Execution Case No. 182/10 after surreptitiously destroying the correct file of Execution Case No. 182/10 and the index of Case No. 65/10 when the records of the Execution Case No.182/10 were summoned by the learned Judicial Commissioner. As a result of this fraud the file of Execution Case No. 65/10 was received in the Court attached to the index of Execution Case No. 182/10 and the learned Judicial Commissioner believing that to be the correct file held that since that execution case was only for the recovery of costs in Suit No. 558/1 the execution application filed on the 17th November 1948, for executing the decree in Suit No. 10/1, was clearly barred by time. In this last suit the trial Court held that the suit was within time as the fraud was discovered only on the 15th January 1954 during the hearing of the Suit No. 223/1 of 1951, as on that date the respondent Haider Shah had actually made an application to the Court praying for the summoning of the records of these two execution cases as he suspected some fraud. The trial Court found support for its view also from the report of the officer‑in‑charge of the Vernacular Record Room, which was submitted in answer to the requisition actually issued by the Court for the said records. This report disclosed that the file of Execution Case No. 182/10 and the index of Execution Case No. 65/ 10 were not traceable in spite of thorough search. The learned Judicial Commissioner had, therefore, been misled by the fact that he got the wrong file. The Execution Case No. 182/10 was with respect to execution of the decree in Suit No. 10/1 and the Execution Case No. 65/10 was for recovery of the costs awarded in Suit No. 558/1. In this latter execution case warrants for arrest of the judgment‑debtors had been issued and this was the case which was consigned to the record for the time being. The suit was, accordingly, decreed on the 13th April 1957. Thereafter, Haider Shah promptly filed another execution application on the 14th May 1957, although the present appellants had preferred an appeal against the decree of the trial Court. This appeal was dismissed on the 15th March 1958, by the District Judge of Peshawar. The learned District Judge also relied on another application (Exh. P. W. 1/2) which Haider Shah had filed on the 14th February 1952, in Suit No. 223/1 of 1951. The learned District Judge was also of the view that the index form of File No. 182/10 was placed as the first page of file of Execution Case No. 65/10, as on the order sheet both the numbers were found to have been recorded in rather an unusual manner as follows:‑ The non‑availability, in spite of search, of the real file of Execution Case No. 182/10 and the index of Execution Case No. 65/ 10 was also not, in the view of the learned District Judge, without significance, for, if there had been a mere inadvertent misplacement of the said file and index they would have been discovered by the careful search that was made when a report was called for by the trial Court. A revision to the High Court from the above‑mentioned appellate order was dismissed by Constantine, J., on the 5th January 1959, but in the meantime after the dismissal of the appeal by the District Judge, Haider Shah had started another Execution Case (No. 50/10 of 1958) on the 26th March 1958, saying that this was within three years from the last execution application filed on the 14th May 1957. In this execution petition it was clearly stated that his previous execution application, being Execution Case No. 312/10, which was filed on the 17th November 1948, had been held to be barred by time, but he had since filed a suit being Suit No. 31/1, and in that suit it had been declared that the order of the learned Judicial Commissioner had been obtained by fraud by suppressing the file of Execution Case No. 182/10. To this last execution application an objection was filed to the effect that the decree in Suit No. 10/1 was no longer executable in view of the decision in Suit No. 223/1 of 1951 and, therefore, the present declaration also did not have the effect of restoring the original decree in Suit No. 10/1. This objection was, however, repelled and execution was ordered. An appeal against this order was dismissed by the Additional District Judge, Mardan, on the 16th November 1959 and in a second appeal, which was treated as a revision under Ordinance No. 44 of 1962, the High Court upheld the orders of the Subordinate Courts holding that this application for execution was neither barred by time nor was the decree in Suit No. lU/1 unexecutable as the judgment‑debtor was really prevented by the fraud practised by the other side from executing the decree within 12 years of the date of the decree. The provisions of sub section (2)(a) of section 48 of the Code of Civil Procedure were held to be applicable to such a case and, therefore, the decree was executable as the fraud which prevents execution gives a fresh period of limitation within which the decree may be executed. It was further opined that the correct position in the facts of the present case was that the last execution application filed on the 26th March 1958, was in effect and in substance an application for the revival of Execution Case No. 312/10 filed on the 17th November 1948, which had been wrongly dismissed as being out of time as a result of the fraud practised upon the learned Judicial Commissioner of Peshawar. A reference to the records of the various execution cases clearly establishes that the Execution Case No. 774/10 started in 1943, as evidenced by the order sheet of the said execution case, was adjourned and was directed to be put up with the record of Suit No. 558/1 for setting aside the ex parte decree in Suit No. 10/1 on 27‑7‑1943. That date was only a tentative date, because, the suit for setting aside the ex parte decree, which was pending in the same Court was not disposed of till that date. The order on 27‑7‑1943 should, therefore, have been that since the case for setting aside the ex parte decree had not yet been disposed of the execution case should be put up along with the records of that case after it had been disposed of. The executing Court, however, when the matter came up on the next date fixed directed that the case be filed, as the decree‑holder was not present, forgetting that it had itself by its earlier order asked the case to be put up along with the records of the suit for setting aside the ex parte decree. This order was not, however, an order finally disposing of the execution case but really amounted to an order adjourning the execution proceedings sine die as the earlier order was not vacated. In any event, the next execution application; being Execution Application No. 182/10; was filed within time on 20‑3‑1945 and the question now is as to what was the order passed in this execution case. The appellants rely on the order recorded on the file, put up before the learned Judicial Commissioner in Revision Case No. 227 of 1949, annexed to the index form of Execution Case No. 182/

10. This shows that on 19‑7‑1945 the case was consigned to the record, because, the execution had failed by then. The contention of the respondents on the other hand is that this was the order which was filed in Execution Case No. 65/10 and the Execution Case No. 182/10 was merely stayed and thus kept pending. The Judicial Commissioner of Peshawar relying on this wrong file held that the story of the appellants could not be believed, as the file which also contained the execution application itself showed that in that execution application the prayer was not for possession but all that was wanted was the issuance of warrants of arrest for execution of the decree for costs. Therefore, there was no application for execution of the decree in Suit No. 10/1 by possession. The contention of the respondent Haider Ali appears to us to be not wholly unfounded, for, otherwise the appellants would have had no need to have the file of Execution Case No. 182/10 suppressed and ulimately destroyed. All this trouble was taken presumably because the order on that file would not have suited their purpose. Be that as it may, all the Courts .have since consistently held that an active fraud was perpetrated by the appellants in conclusion with the officials of the Sub‑Judge's Court and therefore, the decision of the Judicial Commissioner must be set aside as having been vitiated by fraud. Against this order of the High Court passed in revision as long ago as the 5th January 1959, the appellants did not move any higher Court but when execution proceedings were again restarted in pursuance thereof they opposed the same and have now come up in appeal from the order of the High Court, Peshawar Bench, upholding the rejection of their objection. Learned counsel for the appellants contends that the effect of the fraud was not to revive the execution of the 7th November 1948, but to merely revive the revision proceedings before the Judicial Commissioner. But this contention cannot, in our view, be accepted, for, all the proceedings taken subsequent to the order of the Judicial Commissioner passed in Civil Revision No. 227/49 on the 12th February 1951, were to get rid of the order of the Judicial Commissioner holding that the Execution Case No. 312/10 started on the 17th November 1948, was barred by time. If that decision is got out of the way on the ground of the fraud practised by the appellants then the position is that Execution Case No. 312/10 of 17‑11‑1948 is still pending and the application made on the 26th March 1958, must really be deemed to be an application for continuing those pending proceedings. In the circumstances, we are of the opinion that the Courts below were right in applying subsection (2)(a) of section 48 of the Code of Civil Procedure read with section 18 of the Limitation Act. In the facts proved and accepted by those Courts the decision that by reason of the fraud the execution application must be deemed to have been made within time appears to be not only correct but also just. The term "fraud" in this sections has to be interpreted in a liberal sense as including any improper means resorted to for preventing execution. It covers not only deceit but also circumvention. The contention that the decision in Suit No. 31/1 had only the effect of restoring the Revision No. 227/49 which was disposed of by the Judicial Commissioner of Peshawar on the 12th February 1951, cannot be accepted, for, if that judgment is l found to have been obtained by fraud it is non‑existent in the C eye of the law and the position is that the decision of the lower appellate Court of the 8th September 1949, which held the Execution Case No. 312/10 to be within time, is restored and stands as the final decision. Learned counsel for the appellants next contended that, in L any event, the Courts below had not considered as to what would be the effect of the dismissal of Suit No. 223/1 filed by Haider Shah? Would that debar Haider Shah by reason of the provisions of section 11 of the Code of Civil Procedure from bringing another suit on the same cause of action, as was done in this case? This question should properly have been raised before the Courts below but since this was not done the point cannot be allowed to be agitated now. In any event, the argument is untenable, for, Suit No. 223/1 of 1951 was neither between the same parties nor upon the same cause of action. It was a suit for possession simpliciter on the ground that the tenant with whom Haider Shah had settled the lands after getting possession thereof in execution of his decree in Suit No. 10/1 of 1938 had illegally made over possession of the same to the appellants Suit No. 31/1 of 1956 was on the other hand to have an order passed by the learned Judicial Commissioner declared void on the ground that it was obtained by practising a fraud. None of the issues in the two suits were common and as such no question of res judicata arose. For these reasons we are clearly of the view that the High Court was‑ right in taking the view that the execution case was within time and .should proceed. We, accordingly, dismiss this appeal with costs. Before parting with this case, however, we cannot help observing that this is one of those unfortunate cases in which a decree‑holder has since the 23rd February 1940, when he obtained his decree, been not only deprived of the fruits of his decree but also involved in protracted litigation over a period of nearly 30 years partly by reason of a careless order passed by an executing Court and partly by incompetent legal advice. If the Court dealing "it Execution Case No. 774/10 of 1942 had on the 27th of July 1943, only applied its mind to the facts of the case and read its own previous order of the 20th of May 1943, it would have become apparent to it that the execution case could not have been filed for non‑appearance of the decree holder but could only have been adjourned to another date as the suit pending in the same Court for setting aside the decree sought to be executed had not yet been disposed of and the decree‑holder was entitled to assume that the execution case would not be taken up on that date. Again, if even after coming to know of the erroneous and thoughtless order of the 27th of July 1943, the legal advisers of the decree‑holder had applied promptly to have that ex parte order vacated the decree holder might have been saved all this unnecessary harassment and expensive protracted litigation. A. H. Appeal dismissed.