2016 PLP 87 (YLRN)

Ss. 48, 47 & O. XXI, Rr. 95, 100 & 103

Limitation Act (IX of 1908), Art. 181

Specific Relief Act (I of 1877), S. 12

Suit for specific performance of contract

Execution petition

Limitation

Scope

Execution petition was filed wherein objection petition was moved which was accepted by the Executing Court but same was dismissed by the Appellate Court

Validity

Suit was dismissed by the Trial Court but same was decreed by the Appellate Court

Decree holders were required to file execution petition within a period of three years

Judgment debtors assailed the said judgment of which operation was suspended and time period for filing of execution petition was stopped but said civil revision was dismissed and time limit again started from the said date for filing an execution petition

First application for execution of decree could be filed within three years under Art. 181 of Limitation Act, 1908 but no application was moved within such period

Limitation provided in S.48, C.P.C. would not apply in the present case and would apply to any subsequent application for execution--Decree holders had failed to apply for execution of decree within prescribed period of limitation and right to judgment debtors had accrued

Decree never died but restrictions of limitation would become a barrier for enforcement of the same after prescribed limitation

Decree passed by Appellate Court and High Court did not merge into the judgment of Supreme Court as no leave was granted and petition for leave to appeal was dismissed at preliminary stage without issuance of notice or any stay order

Decree holders could file execution petition within a period of three years from the date of judgment and decree passed by High Court as operation of decree passed by Appellate Court was suspended which merged into judgment of High Court

Recording of evidence was not always mandatory and objection petition had to be decided according to facts and circumstances of each case

Executing Court had no other option except to dismiss the execution petition and involving litigant in the process of recording of evidence would be a futile effort

Executing Court had rightly accepted the objection petition

Judgment passed by the Executing Court was well reasoned and same was neither arbitrary nor perverse whereas that of Appellate Court was without application of judicious mind and was in violation of law and material available on file

Impugned judgment and decree passed by the Appellate Court were not sustainable which were set aside

Revision was accepted in circumstances. [Paras. 8, 9, 10, 13, 14 and 15 of the judgment] Bakhtiar Ahmed v. Mst. Shamim Akhtar and others 2013 SCMR 5; Mst. Niaz Bibi through L.Rs. v. Ghulam Musatafa and others PLD 2011 SC 520; Mst. Hakam Bibi through L.Rs. v. Khushi Muhammad through L.Rs. 2007 SCMR 983; Atta Ullah and 2 others v. Akbar 2014 YLR 1034; PLD 1997 Lah. 728; AIR 1990 Punjab 92; Ali Shah v. Allah Ditta and 6 others 1994 CLC 800; 1990 CLC 938 and NLR 2013 Civil 136(sic) ref. Mst. Niaz Bibi through L.Rs. v. Ghulam Mustafa and others PLD 2011 SC 520; Mst.Hakam Bibi through L.Rs. v. Khushi Muhammad through L.Rs. 2007 SCMR 983; Atta Ullah and 2 others v. Akbar 2014 YLR 1034; PLD 1997 Lah. 728; AIR 1990 Punjab 92; Ali Shah v. Allah Ditta and 6 others 1994 CLC 800 and 1990 CLC 938 distinguished. Bakhtiar Ahmed v. Mst. Shamim Akhtar and others 2013 SCMR 5 rel. JUDGMENT CH. MUHAMMD MASOOD JAHANGIR, J.

The facts germane for the disposal of the instant civil revision are that the respondents being plaintiffs filed a suit for specific performance of an agreement to sell against the present petitioners/ defendants before the learned trial court which was dismissed vide judgment and decree dated 29.10.1995. Being aggrieved respondents/plaintiffs filed an appeal before the learned lower appellate court which was allowed and the suit filed by the respondents/plaintiffs was decreed vide judgment and decree dated 22.7.1999. The present petitioners/judgments debtors filed a civil revision against the judgment and decree dated 22.7.1999 before this Court which was dismissed vide judgment dated 02.3.2001 and the judgment and decree passed by the learned Additional District Judge stood confirmed and upheld. No doubt the petitioners/judgment debtors filed CPLA before the august Supreme Court of Pakistan which was dismissed at preliminary stage and leave was refused on 26.5.2003. The respondents/decree holders filed an execution petition on 22.5.2004 for execution of the judgment and decree dated 22.7.1999. which attained finality on 2.3.2001 when the revision petition filed by the petitioners/judgment debtors was dismissed.

1. Whether the instant execution petition filed by the decree holders is barred by time? OPP parties

2. Relief.

3. The learned Executing Court accepted the objection petition filed by the petitioners/judgment debtors and dismissed the execution petition declaring it to be time barred vide order dated 18.6.2005. The respondents/decree holders filed an appeal before the learned lower appellate and after allowing the same vide judgment dated 15.1.2009, the matter has been remanded to the learned Executing Court with direction to execute the above said decree. Feeling dissatisfied the petitioners/judgment debtors have questioned the impugned judgment and decree dated 15.1.2009 passed by the learned lower appellate court through the instant civil revision.

4. The learned counsel for the petitioners/judgment debtors has argued that the impugned judgment and decree passed by the learned lower appellate court is unwarranted and the execution petition filed by the respondents/decree holders was squarely time barred but the learned Additional District Judge while allowing the appeal acted beyond his jurisdiction, that the learned appellate court had decreed the suit filed by the respondents/decree holders vide judgment and decree dated 22.7.1999 which attained finality on 2.3.2001 when civil revision filed by the petitioners/ judgment debtors was dismissed by this Court and the respondents/decree holders were bound to file the execution petition within a period of three years from the date of judgment of this Court but they filed the said application after three years two months and nineteen days and as such the execution petition having been filed beyond prescribed limitation provided under Article 181 of Limitation Act 1908 was barred by time. He further mooted that no doubt CPLA was filed by the pettioners/judgment debtors but that was dismissed at preliminary stage without granting any injunctive order and even notice to the respondents/decree holders was issued and for said reasons the decision of august Supreme Court of Pakistan could not be taken into consideration for computing the period in filing the execution petition before the Executing Court, that mere filing of an appeal before the appellate authority does not provide legal justification to decree holders to over step the bar of limitation and even otherwise it is well settled principle that unless any restraint order is issued against the execution of the decree by the Court the litigant cannot take advantage of limitation in filing the execution petition. He lastly relied upon the judgments reported as Bakhtiar Ahmed v. Mst. Shamim Akhtar and others (2013 SCMR 5) and and prayed for acceptance of the instant civil revision, setting aside of the impugned judgment passed by the learned lower appellate court and for restoration of the order dated 18.6.2005 passed by the learned Executing Court.

5. Conversely the learned counsel for the respondents/decree holders contends that the matter was finally decided by this Court vide judgment dated 26.9.2003 and after dismissal of CPLA filed by the petitioners/judgment debtors the respondents/decree holders filed execution petition within three years hence the execution petition was not barred by time as the judgment of learned Additional District Judge and High Court have merged into the judgment of Supreme Court of Pakistan. He further contended that the decree passed in a suit for specific performance can be executed beyond the period of limitation as it never dies and it can be implemented/executed even at a later stage. He further argued that respondents/decree holders are co-sharers in the decretal property and execution petition on their behalf as being co-sharers cannot be declared as time barred as the respondents/decree holders are owners in possession in every inch of the disputed property and they do not require to file the execution petition and that the impugned judgment passed by the learned lower appellate court is well reasoned and requires no interference by this Court. He lastly relied upon the judgments reported as Mst. Naiz Bibi through LRs. v. Ghulam Mustafa and others (PLD 2011 SC 520), Mst. Hakim Bibi through LRs. v. Khushi Muhammad through LRs (2007 SCMR 983) and Atta Ullah and 2 others v. Akbar (2014 YLR 1034). He finally argued that the learned Executing Court without recording evidence accepted the objection petition in clandestine manner. He while relying upon the judgments reported as (PLD 1997 Lah. 728), AIR 1990 Punjab 92), Ali Shah v. Allah Ditta and 6 others (1994 CLC 800), (1990 CLC 938) and (NLR 2013 Civil 136)(sic.) submitted that the order passed by the learned Executing Court without recording of evidence has rightly been set aside by the learned lower appellate court. He lastly prayed for the dismissal of the instant civil revision.

7. Arguments heard and record perused.

8. It is an admitted fact that initially the suit filed by the respondents/decree holders was dismissed by the learned trial court, but it was decreed vide judgment and decree dated 22.7.1999 passed by the learned Additional District Judge and the respondents/decree holders were required to file execution petition before the Executing Court within a period of three years. However as the petitioners/judgment debtors assailed the said judgment by filing a civil revision before this Court and the operation of the judgment and decree dated 22.7.1999 was suspended, therefore, the time period for filing of execution petition was stopped and when ultimately the civil revision filed by the petitioners/judgment debtors was dismissed by this Court vide judgment dated 2.3.2001 the time limit again started from the said date for filing an execution petition before the Executing Court. The first application for execution of decree can be filed within three years under Article 181 of the Limitation Act 1908. The decree in this case was admittedly passed on 22.7.1999 and confirmed on 02.3.2001. As no application for execution was moved within three years, the application out of which the present litigation has arisen was the first execution petition before the learned Executing Court and limitation, provided in section 48 of C.P.C. would not apply in the present case as section 48 would apply to any subsequent application for execution. "

7. So far as the contention that the decree passed by the High Court has been merged into the judgment of this Court, it may be mentioned here that Supreme Court is not a court of appeal but a constitutional court, and no stay was granted by his Court, therefore, the case-law cited by the learned counsel for the petitioner is not applicable to the case in hand is distinguishable. "

5. It may be recalled that, according to the High Court time started from the date when the First Appellate Court passed the decree. It is manifest from the impugned order that the reason which influenced the decision of the learned Single Judge is synchronizing the accrual of right to apply within the meaning of Article 181, with the date of the deeree of the First Appellate Court, and not with that of the High Court, is that the First Appellate Court had stayed the execution of the decree and the stay order ceased to be operative on the dismissal of the appeal, but no such prohibitory order was issued in revision by the High Court. Obviously, the learned Single Judge was conscious of the provision of section 15 of the Limitation Act whereunder in computing the period of limitation for execution of a decree, the time during which the execution proceedings remained suspended has to be excluded; meaning thereby that despite the decree of the Appellate Court, the decree passed by the trial Court continued to maintain it identity and was capable of execution. Quite advantageously, reference here, may be made to Order XLI, rule 5, C.P.C., which provides that mere filing of an appeal does not operate as a stay of the decree appealed from. The Appellate Court, is however, empowered to order the stay of the execution of such decree. Seemingly, the object of this rule is that the decree-holder is not deprived of the relief to which he has been found entitled by the Court and at the same time to ensure that by execution of the decree the appeal is not rendered infructuous. It appears that in holding that the period of limitation for execution of the decree commenced from the date of the decision by the Appellate Court, the rule that the decree of the Court of first instance, merged into the decree of Appellate Court, which alone can be executed, was not present to the mind of the learned Judge. It is to be remembered that till such time, an appeal or revision from a decree is not filed, or such proceedings are pending but no stay order has been issued, such decree remains capable of execution but when the Court of last instance passes the decree only that decree can be executed, irrespective of the fact, that the decree of the lower Court is affirmed, reversed or modified. In the above said cited case it was held that where stay is granted by the Appellate/Revisional Court, time can be extended for such period the decree remained under suspension. In the instant case 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.

9. So far the question that the decree of the court of first instance is merged into the decree of Appellate Court which alone can be executed it may be stated that in the case in hand the decree was passed by the High Court being appellate/revisional Court, therefore, the time would run from the date of passing of decree by the said Court. In the instant case the right was accrued in favour of the petitioner when the decree was passed by the High Court on 17.3.2003. There being no statutory remedy of appeal or revision available against said decree and the only remedy available was filing a petition for leave to appeal before this Court, which is a constitutional court, therefore, unless the operation of the impugned decree is suspended or the petition is converted into an appeal the petitioner cannot presume that the period of limitation has been clogged. Mere filing of petition, before this court would not automatically enlarge the time of filing the execution application. Needless to mention here that in case relief is granted by this Court after allowing the appeal with leave of the Court then in the said eventuality the order of this Court would merge into order of the lower forums as such the period of limitation would start from the order of this Court.

10. In the light of above said clear verdict it is safely concluded that it cannot be said that the decree dated 22.7.1999 passed by the learned Additional District Judge and the decree dated 02.3.2001 passed by this Court merged into the judgment dated 26.5.2003 passed by august Supreme Court of Pakistan. The decree holder could file his execution petition within a period of three years from the date of judgment and decree dated 2.3.2001 passed by this Court as operation of the decree passed by the learned Additional District Judge was suspended, which merged into that judgment passed by this Court, but as no leave was granted by august Supreme Court of Pakistan against the judgment passed by this Court and in that eventuality the learned Executing Court rightly observed that the time spent before the august Supreme Court of Pakistan could not be condoned because august Supreme Court of Pakistan did not prepare decree sheet along with its judgment as CPLA was dismissed at a preliminary stage.

11. At the fag end of his arguments the contention raised by the learned counsel for the respondents/decree holders that there is a difference between a decree passed in a suit for possession and a decree passed in a suit for specific performance is also not tenable. There may be a difference in the nature of decrees but the law of limitation for filing an execution petition regarding a decree is the same and the limitation is covered by Article 181 of the Limitation Act, 1908 or under section 48 of C.P.C.

12. The case law referred by the learned counsel for the petitioners/judgment debtors (PLD 2011 SC 520) has already been distinguished by the august Supreme Court of Pakistan in Bakhtiar Ahmed's case (supra). The other case law in this respect cited by the learned counsel for the respondents/decree holders is also not relevant and runs on different footings. The last contention of the learned counsel for the respondents/decree holders that the learned Executing Court framed the issue regarding the limitation and he was required to record evidence of the objector/decree holders but he without recording evidence accepted the objection petition and dismissed the execution petition filed by the respondents/decree holders and therefore the matter may be remanded to the learned Executing Court for recording of evidence of the parties is also without any substance. The objection raised by the learned counsel for the petitioners/judgment debtors is purely of legal nature. The copies of judgment and decree and even the judgment passed by the august Supreme Court of Pakistan were available before the learned Executing Court and he while considering the said judgments and decrees decided the issue regarding the limitation in favour of the objectors.

13. It is not the mandate of provisions of Order XXI, Rules 100, 103 of C.P.C. to have always recorded the evidence when the Court finds the subject application as time barred. In view of the facts narrated above the learned Executing Court had no other option except to dismiss the execution petition on the basis of available-material and it would have been a futile effort to involve the litigants in the process of recording of evidence. It is neither obligatory nor lawful to have always decided the application under section 47 and Order XXI, Rules 95, 100 and 103 of C.P.C. after recording evidence. It depends upon the facts and circumstances of each case.

14. The learned Executing Court did nothing wrong while accepting the objection petition filed by the petitioners/ judgment debtors as the.whole material in the shape of judicial verdict was available with him and he after considering the dates thereof passed a well reasoned judgment, which was neither arbitrary nor perverse, but the same is now backed up by the recent judgment of the Supreme Court of Pakistan in Bakhtiar Ahmad's case (supra).

15. Sequel of the above discussion is that the executing court comprehensively dealt with the matter and decided the objection petition while passing a well reasoned judgment whereas the learned lower appellate court without application of his judicious mind has passed by the impugned judgment in sheer violation of law and material available on file, which is not sustainable in the eye of law. Resultantly the instant Civil Revision is alllowed, the impugned judgment and decree passed by the learned lower appellate court is set aside and the order passed by trial court is restored. ZC/R-17/L Revision dismissed.