1988 PLP 1597 (CLC)

(c) Civil Procedure Code (V of 1908)‑‑ ‑‑‑Ss. 48 & 115‑‑Execution of decree‑‑ Revisional jurisdiction, exercise of‑‑Where in disposing of application for execution, Courts below had declined jurisdiction vested in them to make order for execution of decree, on basis of erroneous view of law, it would be a fit case for interference in revisional jurisdiction. Mohammad Abdus Saleem and Mahmood Ahmad Chaudhary for Petitioners. Malik Mohammad Qayyum for Respondents. Dates of hearing: 25th and 27th April, 1988. MUNIR A. SHEIKH, J.‑‑In this revision petition the petitioners have assailed the judgment and decree dated 25‑9‑1982 passed by the learned District Judge, Jhang, dismissing their appeal against the order dated 16‑4‑1981 passed by Mr. Shaukat Ali Zaidi, learned Civil Judge 1st Class, Jhang, dismissing their application for execution of decree being barred by time.

2. The facts giving rise to this revision petition relevant for its disposal in brief are; that the petitioners obtained a decree for possession of land in dispute through pre‑emption on 18‑2‑1971. An appeal was filed against the said judgment and decree which was dismissed on 7‑7‑1971. According to the terms of the decree the petitioners were required to deposit the pre‑emption money upto 20‑3‑1971 and there is no dispute that the same was deposited within the stipulated time. The petitioners made first application for execution of decree on 6‑12‑1973. This application was dismissed for non- prosecution on 16‑7‑1976. The petitioners made fresh application on 11‑2‑1981. This application was contested by the respondents who raised an objection that the same was barred by time under section 48 of the Civil Procedure Code having been made after six years of the passing of the decree. This objection was upheld by the learned Executing Court as consequence of which the said application of the petitioners was dismissed as barred by time. An appeal filed by the petitioners against the said order has also been dismissed by order dated 7‑7‑1971 by the learned lower appellate Court who upheld the findings of the learned Executing Court regarding limitation.

3. Learned counsel for the petitioners maintained that when the decree in favour of the petitioners became final on 7‑7‑1971 with the dismissal of appeal against the said decree by the learned lower appellate Court, section 48 as it then stood provided a period of 12 years within which fresh and subsequent application for execution could be made from the date of the decree and this section was subsequently amended through Ordinance No.XII of 1972 reducing the outer limit of 12 years to 6 years, which could not be given retrospective effect and it could not destroy the substantive right of the petitioners to seek the execution of decree within 12‑ years from the date when it was passed and the law as it stood on the date of passing of the decree would govern all subsequent applications for execution to be made by the petitioners. In this respect learned counsel for the petitioners has placed reliance on judgments reported as Mirza Akbar Ali v. National Bank of Pakistan 1985 SCMR 190, National Bank of Pakistan v. Syed Ishrat Ali 1984 C L C 1907 and Qasimi Jewellers v. National Bank of Pakistan 1983 C L C 2433.

4. On the other hand learned counsel for the respondents vehemently argued that the provision of section 48 like Limitation Act, primarily is a part of procedural law, therefore, according to well‑settled principles of interpretation of statutes amendment in procedural law has to take effect retrospectively unless the amending law otherwise provided. Reliance has been placed on judgments reported as ILR 1945 Bom. 365, I L R 7 3om. 459, Mst. Begam Sultan v. Sarvi Begum A I R 1917 Lah. 144 and Bank of India Ltd. v. Muhammad Ashraf etc. (P.L.D. 1965 Karachi 69).

5. The question for determination in this revision petition is whether the subsequent application made by the petitioner on 11‑2‑1981, for execution of decree could be held to be barred by time. To my mind the proper approach for determining whether a Statute had retrospective effect, was not by classifying it as procedural or substantive but by seeing whether, if applied retrospectively to a particular type of case, it would impair existing vested rights and obligations. There is no denial of the fact that under the unamended section 48 of the Civil Procedure Code a fresh application could be made within a period of 12 years from the date of decree. Prom this it can safely be concluded that the law as it stood before amendment in 1972 had created a valuable right in favour of the decree‑holder to seek execution of decree within a period of 12 years through successive applications and the amendment brought in 1972 in the said section curtailing the said period of 12 years to six years, if applied to the decrees already passed would certainly have the effect of destroying the said vested right which had accrued. That being so the amendment in section 48 cannot be given retrospective effect. The above conclusion is fully supported by the authorities cited on behalf of the petitioners, which are discussed below.

6. It has been held in "1985 S C M R 190" that the substance of the provisions made in section 48, C.P.C. and Article 182 of the Limitation Act being different, the same principle as applies in giving effect to section 48, C . P. C . cannot be extended to Article 182 of the Limitation Act. It was also held that fresh application made on 25‑6‑1981 for execution of decree passed on 24‑9‑1969 was well within limitation of 12 years as prescribed under section 48, C . P . C . as it stood before its amendment by Law Reforms Ordinance, 1972. The similar view has been taken in the other authorities cited by the learned counsel for the petitioners such as 1984 C L C 1907 and 1983 C L C 2433. In view of these authoritative pronouncements, I do, not feel called upon to discuss in detail the authorities from Indian jurisdiction relied upon by the learned counsel for the respondents.

7. Considering that in disposing of the application for execution moved by the petitioners, the Courts below declined jurisdiction vested in them to make an order for execution of the decree, on the basis of erroneous view of law, it is a fit case for interference in revision under section 115, C.P.C. In the result, the revision petition succeeds. It is hereby accepted. The impugned orders dated 25‑9‑1982 and 16‑4‑1981 passed by the Courts below respectively are hereby set aside and the learned Executing Court shall dispose of the application of the petitioners for execution of decree in accordance with law. There will, however, be no order as to costs. A. A. /I‑76/L Revision accepted.