2002 PLP 2684 (YLR)

(c) Civil Procedure Code (V of 1908)‑‑‑ ‑‑‑‑Ss. 48, 115 & O.XXI, R.11(2)‑‑‑Limitation Act (IX of 1908), S.15 & Art. 181‑‑ Constitution of Pakistan (1973), Art. 185(3)‑‑ Supreme Court Rules, 1980, O.XX, R.1‑‑ Execution application‑‑‑Limitation‑‑‑Exclusion of time during which decree remained suspended‑‑‑Suit was dismissed by the Trial Court, but on appeal, it was decreed on 3‑2‑1985‑‑‑Revision petition filed by petitioners was dismissed in limine on 22‑5‑1985‑‑‑Civil petition for leave to appeal filed before Supreme Court was withdrawn on 1‑6‑1988‑‑‑First execution application filed on 18‑6‑1985 was withdrawn by respondents; second application filed on 10‑1‑1994 was returned by Court for technical reason: third application filed on 16‑1‑1994 was again withdrawn; and last execution .application filed on 3‑4‑1994 was objected to by petitioners being barred by time‑‑‑Executing Court rejected the objection‑‑‑Appellate Court dismissed petitioner's appeal .holding last execution application to be‑within time after excluding the period during which petition for leave to appeal remained pending before the Supreme Court‑‑‑Validity‑‑‑Decree was passed by Appellate Court on 3‑2‑1985 and computing the period of limitation from such point of time, six years had expired on 2‑2‑1991‑‑‑Execution application filed on 3‑4‑1994 was barred by time‑‑‑Revision petition filed against such decree was dismissed in limine and no decree‑sheet was prepared‑‑Petitioners had challenged such judgments and decree before Supreme Court, but no injunction order was granted in their favour‑‑‑According to S.15 of Limitation Act, 1908, only such period could be excluded from the period provided for filing execution application, during which operation of decree had been suspended by any higher forum‑‑‑In absence of injunctive order in favour of respondents, period of limitation for filing execution application had commenced w.e.f. 2‑3‑1985 and remained running 'without any interruption till its expiry‑‑‑Last execution application had been filed after lapse of six years time‑‑‑Courts below had erroneously given the respondents the benefit of pendency of petition for leave to appeal before Supreme Court‑‑‑High Court accepted revision petition, set aside impugned orders, and accepted the objections of petitioner on the point of limitation and dismissed the application for execution of decree. Moulvi Abdul Qayyum v. Syed Ali Asghar Shah and others 1992 SCMR 241; K.M. Munir and others v. National Bank of Pakistan etc. 1999 CLC 555; Nizam ud Din, etc. v. Ch. Muhammad Saeed and others 1993 CLC 2130 and Toor v. Abdul Qadir 2001 CLC 108 ref. Sh. Abdul Aziz, Rana Nasurallah Khan and Malik Abdul Qadir for Petitioners. Muhammad Hassan Chaudhry for Respondents. Date of hearing: 20th November, 2001. Respondents filed a suit for pre emption against the petitioner, the vendees, which was dismissed by the learned Civil Judge on 9‑6-1984, but on appeal filed by them, the suit was decreed on 3‑2‑1985. This decree was challenged by the petitioners through C.R. No.392‑D of 1985, which was dismissed in limine on 22‑5‑1985. Petitioners preferred C.P.L.A. No.750 of 1985, which remained pending with the Honourable Supreme Court, till 1‑6‑1988, when it was withdrawn as having become infructuous. During this period, respondents filed an execution application on 18‑6‑1985, which was withdrawn with permission to file afresh; second application was moved on 10‑1‑1994; which was returned by the Court for some technical reasons, on 16‑1‑1994, third application was filed by respondents on 18‑1‑1994, but was again withdrawn and the last application was moved on 3‑4‑1994; petitioners judgment‑debtors, raised objection that this execution application, is barred by time. The objection was rejected; petitioners preferred an appeal, the case was remanded with the direction to frame issues and dispose of the matter after recording of the evidence. The learned executing Court, after doing the needful, again dismissed the objection petition vide order dated 5‑1‑1995. Appeal filed by the petitioner, failed on 16‑1‑1995. Both the Courts below have taken the view that the time during which, C.P.L.A. No.750 of 1985, filed by the petitioners remained pending, has to be excluded while computing the period of limitation for the purpose of last execution applicant, filed by the respondents, thus by doing this exercise, the execution application, is within time.

2. Learned counsel for the petitioners, contends that admittedly the Civil Revision No.392‑D of 1985 was dismissed in limine and no decree‑sheet was drawn similarly C.P.L.A. No.750 of 1985 was only filed by the petitioners, but no injunctive order was passed; this simply remained pending and the operation of the judgment of the Learned Additional District Judge was never suspended, thus the time for filing the execution application, which started running from the date of first decree in favour of the, respondents i.e. 3‑2‑1995, would not stop and cannot be excluded in view of the provisions of section 15 of the Limitation Act. In support of his submissions, learned counsel has relied upon judgments reported as Moulvi Abdul Qayyum v. Syed Ali Asghar Shah, and others 1992 SCMR 241; K.M. Munir and others v. National Bank of Pakistan and others 1999 CLC 555; Nizam‑ud‑Din and others v. Ch. Muhammad Saeed, etc., 1993 CLC 2130; and Toor v. Abdul Qadir 2001 CLC 108.

4. Conversely learned counsel for the respondents, by also relying upon judgment reported as 1992 SCMR 241, states that where the decree passed in favour of the respondents, remained under challenge, notwithstanding that any injunctive order was issued, the period during, which matter remained pending before the higher forum, is to be excluded, from the prescribed period of limitation.

5. Arguments have been heard. According to the provisions of section 48 or C.P.C., the maximum period for filing an execution application is six years, from the date of decree, notwithstanding the number or applications, tiled by the decree‑holders. However, last in chain, should be filed within outer limit of six years, from the date of the decree. In the present suit, decree, for the first time, was passed in favour of the respondents by the first appellate Court on 13‑2‑1985 and computing the period of limitation from this point of time, six years time expired on 2‑2‑1991. Admittedly the present execution application has been moves on 3‑4‑1994, therefore, on the face of it, was barred by time. Now the question to be examined, is whether the respondent is entitled to the exclusion of the time, during which matter remained pending before the Honourable Supreme Court in C.P.L.A. Nos.750 of 1985. It may be pertinent to mention that the Civil Revision No.392‑D of 1985, was dismissed in limine by this Court: no decree sheet was prepared, thus for not significant period, the matter remained pending before the Court. The petitioners simply challenged the aforesaid judgment and decrees before the Honourable Supreme Court in C.P.L.A., but no interim injunction was granted in their favour. According to the provisions of section 15 of the Limitation Act, only such period is to be excluded from the period provided for the execution application, during which the operation of the decree, had been suspended by any higher forum. In the present case, as there was no injunctive order in favour of the respondents; thus limitation period for filing of the execution application, which commence w.e.f. 2‑3‑1985, remained running without any interruption till its expiry. Undoubtedly, the last execution application has been filed by the respondents, after the lapse of six years time, but the Courts below have erroneously given the respondents, the benefit of pendency of C.P.L.A:, before the Honourable Supreme Court. The judgment relied upon by the learned counsel for the respondents has no application, because in the judgment, the effects of the provisions section 15 of the Limitation, have not been considered, which section clearly and in unequivocally terms provides the method and the mechanism, as to how, the period of limitation, is to be computed in the cases, where the decree of the Court is suspended. It is only in such situation, that the time is to be excluded from the prescribed period or limitation i.e. if the decree remains suspended but not otherwise. Mere institution or C.P.S.L.A. or its pendency without any injunction order, having been passed by the Court, would not stop the limitation period.

6. In the light of above, this revision petition is allowed, the impugned orders are set aside and by accepting the objections of the petitioner, on the point of limitation, the application for the execution filed by the respondent, is dismissed. No order, as to costs. S.A.K./I‑89/L Petition allowed.