2009 PLP 1279 (CLC)

MEHTA KAILASH NATH KOHLI, J.

This petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 has been directed against order dated 18th December, 2006, passed by learned Qazi Panjgoor and order dated 14th April, 2007, passed by learned Majlis-e-Shoora, Panjgoor. Facts of the case, in brief, are that petitioner Haji Ali Jan filed a suit for recovery of Rs.1,30,000 i.e. sale consideration of vehicle. During pendency of proceedings parties entered into an agreement whereby the predecessor-in-interest of respondents-defendants agreed to transfer landed property in favour of petitioner-decree holder in lieu of above sale consideration; contents of the agreement are reproduced herein-below:-- On the basis of afore-mentioned agreement arrived at between the parties, learned Qazi Panjgoor, decreed the suit of petitioner-plaintiff, vide judgment and decree dated 23rd October, 1996. Record shows that predecessor-in-interest of respondents-defendants did not perform his part of obligation and had avoided to make payment of the outstanding balance amount; hence, present application for execution of decree was filed and following prayer was sought:.

It was stated that defendants Nos.2 and 3 namely Muhammad Kareem son of Haji Hasil Khan and Haji Hasil Khan son of Fateh Muhammad had died few years ago, while defendants Nos. 1 and 2 are legal heirs and sons of defendant No.3, and the property is in use and occupation of defendants Nos.1 and 2, details whereof have been given in para.4 of the application. It was further stated that after demise of defendant No.3, petitioner-decree holder approached the defendants Nos. 1 and 2 to perform their part of obligation with regard to execution of decree, the said application was allowed and learned trial Court directed the respondents-defendants to make payment of outstanding balance amount to the petitioner vide order dated 20th March, 2002, in the meanwhile predecessor-in-interest of respondents-defendants died. It was stated that thereafter, petitioner had contacted the present c respondents, but they flatly refused to make payment. Present application for execution of decree dated 23rd October, 1996 and order dated 20th March, 2002; reply to the said application was filed by the respondents-defendants, and the execution application was mainly contested on the ground that the same is time barred. Learned trial Court vide order dated 18th December, 2006, dismissed the application. Against afore-mentioned order revision petition was filed before the Majlis-e-Shoora Panjgoor, which too was dismissed vide order dated 14th April, 2007. Against afore-mentioned concurrent orders, present petition has been filed before this Court and following prayer has been sought:

"It is therefore, respectfully prayed in view of submissions made herein above, after perusal of the record and hearing the parties the order passed by learned Qazi Panjgoor dated 18-12-2006 and the order dated 14-4-2007 passed by learned Majlis-e-Shoora Panjgoor may kindly be set aside and Execution Application filed by petitioner may kindly be directed to be allowed. It shall meet the ends of justice. Any other relief which this Honourable Court may deem fit and proper in the circumstances of the case may also be awarded in favour of petitioner and against the respondents." Notice was given to the respondents. Raja Rab Nawaz, Advocate appeared on behalf of petitioner, while Mr. Muhammad Rauf Atta, Advocate appeared on behalf of respondents. Learned counsel for petitioner has contended that the learned trial Court has not examined the provisions of section 48, Civil Procedure Code, while dismissing the execution application. It was further contended that similarly the Majlis-e-Shoora has seriously erred in holding that the application was not sustainable under law. It was also contended that Article 181 of Limitation Act is not applicable, in case; if the first application having been filed and after invocation of first application; limitation provided to section 48 of the Civil Procedure Code will come into force and period of six .years is provided by the said provision. On the other hand, learned counsel for private respondents has contended that it is bounded duty of the petitioner to file application under Article 181 of Limitation Act, for which, the period provided is three years and since order of refusing was passed in 2002, the-subsequent application in the year, 2006 was barred by time. We have carefully considered the arguments advanced by learned counsel for the parties and perused the record. On perusal of record, it transpires that the suit was initially decreed on 23rd October, 1996 and execution application was filed on 18th February, 1997: The first application was well within time as provided by Article 181 of Limitation Act. Record reflects that on 20th March, 2002 predecessor-in-interest of private respondents had stood attorney for the payment of said amount. Record further shows that this application appears to have been filed after lapse of four years, within the limitation prescribed by section 48, C.P.C. On examination of law, it transpires that by virtue of Ordinance XII of 1972, the amendment was made in section 48 of C.P.C. and period of six years was provided, therein. The Honourable Supreme Court in one of the cases i.e. National Bank of Pakistan v. Mian Aziz-ud-Din and 7 others 1996 SCMR 759, came to the conclusion that first application has to be filed within period of three years and thereafter period of six years as provided by section 48, C.P.C. shall come into play. Relevant observations of the Honourable apex Court are reproduced herein-below:

"4.........It, therefore, clearly follows that if no application for execution of a decree was made within the period of three years prescribed by Article 181, any appeal, would be barred under the said Article and no benefit under section 48, C.P.C. can be availed by the applicant in such a case. It is only after the first application is made within the period prescribed by Article 181 of the Limitation Act, that subsequent applicants can be filed within the period provided by section 48, C.P.C. Consequently, the view taken by the High Court and the Special Court that the execution application filed by the petitioners beyond the period of three years was time-barred, is not open to exception." Thus, for the foregoing reasons, we declare that the orders passed by the official respondents Nos.5 and 6 dismissing execution application on the ground of limitation are without lawful authority and are of no legal effect. Consequently, the execution application filed by the petitioner shall be deemed to be pending, which shall be decided in accordance with the provisions of law. M.Y./26/Q Case remanded.