2000 PLP 1216 (CLC)

Date of hearing: 23rd December, 1999. In this petition under Article 9 of the Provisional Constitutional Order 1981, judgment, dated ,14‑3‑1981, passed by a learned Additional District Judge. Lahore; whereby, the revision petition, filed by the petitioner, was dismissed and the order of the learned Executing Court, dated 29‑10‑1980 was maintained, has been challenged. It arises in the following background:‑‑

2. A money decree for Rs.37,625 is stated to have been passed in favour of the respondent/Bank on 22‑1‑1969 The execution proceedings were taken against the petitioner/judgment‑debtor but the said application was dismissed for non‑prosecution on 20‑11‑1972. Another application for execution was filed by the decree‑holder/Bank on 15‑9‑1975, the competency of which was objected to by the petitioner vide application, dated 15‑9‑1976 on the ground that with the amendment of section 48 of C.P.C., period of limitation for filing of execution application had been curtailed to 6 years, as such, the second application filed by the respondent/Bank was barred by time. The learned Executing Court dismissed the objection petition vide order, dated 29‑10‑1980 which order was challenged by the petitioner in revision when the same was dismissed by the learned Additional District Judge on 14‑4‑1981 on the view that the decree having been passed prior to the amendment of section 48 of C.P.C., limitation of 12 years would continue to govern the execution petition. The same has been challenged through this petition.

3. It is contended by the learned counsel for the petitioner that when the decree was passed i.e. on 22‑1‑1969 although the limitation for execution petition was 12 years, yet with the amendment of section 48 of C.P.C. through the Law Reforms Ordinance, 1972, the said period was curtailed to 6 years, therefore, the petition for execution, filed on 15‑9‑1975, was time barred. He relies on Adnan Afzal v. Capt. Sher Afzal PLD 1969 SC 187 to contend that it is a matter of procedure which should have a retrospective effect.

4. To the contrary, the learned counsel for the respondent Bank contend that the amendment of section 48 of C.P.C. was not retrospective in its effect and the limitation of 12 years as available under the unamended provision of law would continue to govern the decree passed prior to the said amendment. Reliance has been placed by them on National Bank of Pakistan v. Messrs Hyderabad Tando Fazul Bus Service 1980 CLC 1146, National Bank of Pakistan v. Syed Ishrat Ali 1984 CLC 1907, Imam Bakhsh and 5 others v. Allah Ditta and 3 others 1988 CLC 1597 and Mst. Tayyaba Begum v. Gul Rehman and 2 others 1988 CLC 2370 in support of their contentions.

5. The amendment carried out in section 48 of C.P.C. curtailing the period of limitation from 12 years to 6 years for the execution petition, has been considered in number of judgments by now. In National Bank's case (supra), it was held that :‑‑ "Like the right of action by suit the right to execute a decree is a vested right accrued in favour of the decree‑holder and, therefore, an alteration in the period of limitation for execution of such decrees cannot be held to be a mere matter of procedure. " It was, thus, held that the amendment in section 48 of C.P.C could not be given a retrospective effect. In the case of National Bank of Pakistan 1984 CLC 1907, it was held that:‑‑ "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 or abridge that right. " It has been, thus, the consistent view of the Sindh High Court, Karachi.

6. This Court has also taken identical view of the matter. In Messrs Mian Brothers and 3 others v. The Additional District and Sessions Judge, Multan and others PLD 1985 Lahore 562, it was held as follows:‑‑ "Amended provision curtailing the period of limitation was not applicable to the execution of the decree which respondent No.2 had obtained long before the promulgation of Law Reforms Ordinance, 1972. Execution of that decree continued to be governed by the old law with the result that it could be executed within a period of 12 years from the date it was passed viz. 19‑2‑1968." Likewise, in Imam Bakhsh' case (supra), similar view was taken by this Court. From all these judgments, the point raised by the learned counsel for the petitioner, stands answered and clinched when the case of Adnan Afzal (supra) was also considered.

7. In view of the above, the application for execution filed by the respondent/Bank was within limitation. The objection petition, filed by the petitioner, was rightly dismissed by the two Courts below. Although the judgment of the learned Additional District Judge has been assailed through the present writ petition, yet he has not been cited as party to the petition. The petition would not have been competent for this reason as well. As a result of the above, this petition has no merit and is accordingly dismissed. No order as to costs. Q.M.H./M.A.K./S‑7/L Petition dismissed,