P L D 1964 (W (PLP)

ANWARUL HAQ, J.

‑This order will dispose of three second appeals, namely, Nos. 60, 61 and 62 of 1963, which have arisen out of execution proceedings pending in the Court of Subordinate Judge, Khairpur. Three suits for possession of land were filed by one Sarai Illahi Bakhsh in 1937‑38, on the basis of a sale‑deed alleged to have been executed in his favour by Bilawal son of Ishaq, Khair Muhammad son of Lal Bakhsh and Allah Dino son of Khamiso. The suits were dismissed by the Civil Court at Khairpur and the plaintiff's appeals were also dismissed by the District Court on the point of limitation alone. The High Court remanded the appeals back to the District Court for determination of all the issues. The District Court reheard the appeals and once again dismissed them. The plaintiff again took the matter to the High Court of Khairpur which allowed his appeals and decreed his suits on the 17th of December 1950. The defendants then went up in appeal to the Judicial Committee of the Khairpur State, which maintained the appellate decree of the High Court with some modifications. The Judgment of the Judicial Committee was approved by the Khairpur Darbar on the 6th of April 1955. This is the date mentioned in the three memoranda of appeals filed in this Court, but Mr. A. K. Brohi, the learned counsel for the appellants, informed me at the Bar that, in fact, the approval of the, Darbar was given on the 14th of February 1955, in respect of the decrees which form the subject‑matter of Appeals Nos. 60 and 61 of 1963 before me.

2. Execution applications were filed on the 9th of January 1958, but they were withdrawn on the 30th of September 1960, for the reason that the survey numbers mentioned in the execution applications had become out of date and it was necessary to indicate the new survey numbers of the land in suit. On the 31st of October 1960, fresh execution applications were filed in the three cases and, in spite of several objections having been raised by the judgment‑debtors, these applications have been accepted by the executing Court. The defendants' appeals have also been dismissed by Mr. Ghulam Hussain A. Shaikh, the learned District Judge of Khairpur, and he has ordered that execution proceedings should continue. The present appeals seek to challenge the correctness and legality of the orders of the two Courts below.

3. In the memoranda of appeals a large number of grounds have been urged, but at the time of hearing of these appeals Mr. Brohi confined himself to the question of limitation alone and gave up all other points. Briefly, his contention is that, assuming that the starting point of limitation was the date on which the Khairpur Darbar approved the judgments of the Judicial Committee of Khairpur and that, therefore, the first application in each case was within time, even then the sub sequent applications submitted on the 31st of October 1960, which have succeeded in the two Courts below, were barred by time, as they were filed after more than three years from the date of the Darbar's approval. The learned counsel has contended that the first application in each of these cases was not in accordance with law as it gave out‑of‑date survey numbers which had ceased to exist, with the result that the decree could not have been executed at all in respect thereof, and, therefore, the first application cannot be used to extend the period of limitation in accordance with clause (5) of Article 182 of the First Schedule to the Limitation Act. He has further submitted that the application made by the decree‑holder for the withdrawal of the first execution application on the 30th of September 1960, was neither an application in execution of the decree nor did it amount to a step in aid of execution of the decree and, therefore, this application again did not attract the provisions of clause (5) mentioned above. According to Mr. Brohi, the question of limitation with regard to the present execution applications presented on the 31st of October 1960, has, therefore, to be considered independently of the previous applications made in this behalf, and once that is done, it will be seen that these applications are time‑barred, having been filed after the expiry of more than three years since the orders of the Darbar were pronounced in these cases on the 14th of February 1955 or the 6th of April 1955, as the case may be. These very arguments appear to have been presented in the Courts below but were not accepted.

4. Mr. Brohi has dealt at great length with the questions raised by him and has cited a large number of authorities in support of his contentions. In reply Mr. Memon, the learned counsel for the respondent, has contended that the first applica tions made in all these three cases were in accordance with law as the only defect in them was of a technical nature, namely, the mention of wrong survey numbers which has changed since the institution of the suits. In the alternative, he took up the position that even if the first applications were defective, they can be regarded as steps in aid of execution and would accordingly serve to provide a fresh starting point for limitation. Mr. Memon also referred me to several decided cases in support of the propositions canvassed by him. Finally, he contended that in any case the matter was governed by Article 183 of the Schedule to the Limitation Act which prescribes a period of 12 years.

5. Although considerable time was devoted by the learned counsel for the parties to elaborate their respective contentions, in relation to the applicability of Clause 5 of Article 182, I do not propose to deal with them in this judgment, for the reason that the appeals can easily be disposed of by reference to Article 183 of the First Schedule to the Limitation Act which prescribes a period of twelve years for enforcing a judgment, decree or order of any High Court in the exercise of its ordinary original civil jurisdiction, or an order of the Supreme Court.

6. With the integration of the various Provinces and Princely States in West Pakistan into one Province on the 14th of October 1955, the High Courts and Judicial Committees functioning in the integrating States were abolished, and some provision had, therefore, to be made for the enforcement of their judgments and orders etc. With this object in view, Act X of 1957, known as the Federal Court (Enlargement of Jurisdiction) (Amendment) Act, 1957, was promulgated on the 16th of March 1957, after receiving the assent of the President on the 15th of March 1957. This Act sought to amend the Federal Court (Enlargement of Jurisdiction) Act, 1949 (Act I of 1950). Subsection (2) of section 1 of this Amending Act lays down that "it shall come into force at once, and shall be deemed to have taken effect on the fourteenth day of October 1955". By section 2 of this Amending Act a new section, namely, section 9, was added in the Federal Court (Enlargement of Jurisdiction) Act, 1949, which reads as under :‑ "Power of Supreme Court to decide appeals from States (1) Every case or appeal from any High Court in any State pending before the Judicial Committee of that State on the thirteenth day of October 1955, shall stand transferred to the Supreme Court and shall be heard and decided by that Court as if it were a case or an appeal pending before that Court from a Judgment to which this Act applies. (2) An appeal shall lie to the Supreme Court from any order or decree made by a High Court in any State which immediately before the fourteenth day of October 1955 was appealable to the Judicial Committee of that State and was not barred by the law for the time being in force relating to limitation, as if it were an order or decree made by a High Court from a Judgment to which this Act applies, and the period of limitation applicable to any such appeal shall be ninety days from the date of the commencement of the Federal Court (Enlargement of Jurisdiction (Amendment) Act, 1956 Provided that the Supreme Court may for sufficient cause extend the time. (3) Any order made by the Judicial Committee of a State on any appeal or petition heard and decided by that Com mittee on or before the thirteenth day of October 1955, shall for all purposes have effect as an order made by the Supreme Court in the exercise of its jurisdiction under this Act. (4) In this section a reference to a State shall be construed as a reference to any of the following States merged in the Province of West Pakistan on the fourteenth day of October 1955, namely, the States of Bahawalpur, Khairpur and the States included in the Baluchistan States Union, and a reference to the Judicial Committee of a State as a reference to the Judicial Committee set up in accordance with the Laws in force in that State."

7. It will be seen that under subsection (3) of the newly added section 9 to the Federal Court (Enlargement of Jurisdiction) Act, 1949 the orders made by the Judicial Committee of Khairpur State in these three cases are to have effect as orders made by the Supreme Court in the exercise of its jurisdiction under this A Act, and as such the period of limitation would be twelve years as provided by Article 183 of the First Schedule to the Limitation Act. This period of twelve years would expire sometime in 1967 and, therefore, the present execution appli cations filed in the year 1960 would clearly be within time. It is, however, contended by Mr. Brohi that, in the first place, Act I of 1950 stood repealed by virtue of Article 221 of the 1956 Constitution of the Islamic Republic of Pakistan, and, therefore, there was nothing to amend in 1957, with the result that the provisions, of the amending Act relied upon by the respondent decree‑holders are a dead letter ; in the second place, 'even if Act I of 1950 was alive in 1957, the Amending Act X of 1957 is ultra vices of the 1956 Constitution, for it seeks to amend, by simple majority, the constitutional provisions as contained in Articles 156 to 160 of the Constitution regarding the jurisdiction of the Supreme Court. Finally, it is ‑contended by Mr. Brohi that as the States had already ceased to exist in 1955, the Federal Legislature had no jurisdiction to legislate on any matter pertaining to the States. I proceed to examine these contentions.

8. Article 221 of the 1956 Constitution is in the following terms The Government of India Act, 1935, and the Indian Independence Act, 1947, together with all enactments amending or supplementing those Acts, are hereby repealed : Provided that the repeal of the provisions of the Government of India Act, 1935, as applicable for the purposes of Article 230 shall not take effect until to first day ,of April 1957."

9. It is correct that Act I of 1950, namely, the Federal Court (Enlargement of Jurisdiction) Act, 1949, was promulgated by the Federal Legislature under the power given to it by section 206 of the Government of India Act, 1935, to enlarge the appellate jurisdiction of the Federal Court, but this Act H cannot be said to be an Act amending or supplementing the Government of India Act, 1935, or the Indian Independence Act, 1947. If the interpretation canvassed by Mr. Brohi is adopted, it would mean that all enactments passed by the Federal Legislature under the powers vested in it by the Government of India Act, 1935, would have to be deemed to be Acts amending or supplementing that Act. This is obviously an untenable position. I think the words "all enactments amending or supplementing those Acts" used in Article 221 of the 1956 Constitution obviously refer to those enactments which have the effects of modifying, adding to or subtracting from the provisions of the Government of India Act of 1935 or the Indian Independence Act of 1947, and not to those enactments which are promulgated by Legislature under the C Powers given to it by these two Constitutional instruments in relation to specified subjects. It is, therefore, clear that Act I of 1950 cannot be said to be an Act which was repealed by Article 221 of the 1956 Constitution. This Act was, therefore, very much alive in 1957 and could obviously be amended in that; year.

10. The next contention of Mr. Brohi is that the jurisdiction of the Supreme Court having been defined in Articles 156 to 160 of the 1956 Constitution, any legislation on the subject of jurisdiction of that Court must be construed as being in the nature of an amendment of the Constitution, and accordingly governed by the procedure laid down in Article 216 of the Constitution. On this view of the matter, it is contended, such legislation could not be carried through by a simple majority in the National Assembly, and as there is no indication that Act X of 1957 was enacted by the requisite majority as indicated in Article 216 of the Constitution for the purposes of a Consti tutional amendment, this Act is clearly ultra vices of the Constitution.

11. The argument advanced by the learned counsel over looks the power given to the Federal Legislature in Articles 105/D and 106 of the 1956 Constitution. Article 105 provides that "subject to the provisions of the Constitution, Parliament may make laws, including laws having extra territorial operation, for the whole or any part of Pakistan, and a Provincial Legislature may make laws for the Province or any part thereof" ; and clause (1) of Article 106 provides that "notwithstanding anything in the two next succeeding Clauses, Parliament shall have exclusive power to make laws with respect to any of the matters enumerated in the Federal List." The effect of these two Constitutional Provisions is that the Federal Legislature is competent to make laws with regard to the subjects mentioned in the 5th Schedule under the Federal List as well as under the Concurrent List, but this power is subject to the over‑riding condition that these laws shall not conflict with the Constitution itself. Now, in Item 16 of the Federal List in the 5th Schedule to the Constitution, the subjects mentioned are "the Constitution, organization, jurisdiction and powers of the Supreme Court (including contempt of such Court) and the fees taken therein persons entitled to practice before the Supreme Court". The result is that the Federal Legislature is competent to make laws with regard to these subjects ; provided always that these laws do not conflict with the provisions which already exist in the main body of the Constitution with regard to "the Constitution, organization, jurisdiction and powers of the Supreme Court". Articles 156 to 160 of the Constitution confer certain jurisdiction on the Supreme Court, but they do not contain any prohibition that such jurisdiction cannot be enlarged by an enactment of the Federal Legislature in accordance with the powers conferred upon it by Articles 105 and 106 of the Constitution, read with Item 16 of the Federal List contained in the 5th Schedule to the Constitution.

12. Mr. Brohi submitted that the phrase "jurisdiction and powers of the Supreme Court" mentioned in Item 16 of the Federal List should be construed so as to mean only matters of procedure and not of substance with regard to the functioning of the Supreme Court. He argued that the substantive jurisdiction of the Supreme Court already having been defined by the Constitution itself, the Federal Legislature could only regulate the exercise of that jurisdiction but not add to or subtract there from by ordinary legislation. There does not appear to be any warrant for such a restrictive interpretation in the language used in the Constitution ; on the contrary, the words used in Item 16 of the Federal List are clear and unambiguous, and are comprehensive enough to include not only procedural matters but also substantive questions of juris diction and powers of the Supreme Court. There is also the further consideration that the legislative powers of a Sovereign Legislature, as the National Assembly was under the 1956 Constitution, are not to be artificially curtailed by a narrow interpretation of the Constitutional provisions. So long therefore, as the Federal Legislature did not act in violation of the Constitution and did not purport to curtail or take away the jurisdiction and powers that had already been conferred upon the Supreme Court by the Constitution, it could certainly make laws to enlarge that jurisdiction and those powers. I consider, therefore, that the Federal Legislature was competent to enact Act X of 1957.

13. Mr. Brohi then referred to Item 29 of the Federal List in the 5th Schedule to the 1956 Constitution which gives power to the Federal Legislature to make laws with regard to the jurisdiction and powers of all Courts, but excepts the Supreme Court therefrom, and argued that this exception or exclusion of the Supreme Court from the purview of Item 29 would show the intention of the framers of the Constitution that the question of jurisdiction and powers of the Supreme Court was not to be dealt with by the Federal Legislature. This argument is clearly untenable for the reason that separate provision having already peen made about the Supreme Court in au earlier Item, namely Item 16, it was only logical to exclude the Supreme Court from the subsequent Item 29, and therefore from this exclusion the inference cannot be drawn that the earlier Item 16 stands negatived.

14. The last contention which needs to be noticed in this behalf is that the States having disappeared in 1955 ; the Federal Legislature could not make any provision with regard to any matters pertaining to the States in the year 1957. The argument is clearly fallacious, for the States having not disappeared into thin air, but have become a part of the integrated Province of 1E West Pakistan. As the authority of the Frederal Legislature extended to the whole of Pakistan, with perhaps certain exceptions relating to the excluded and special areas with which we are not concerned here, it was competent to legislate on matters pertaining to the areas formerly comprised in these States.

15. For the foregoing reasons, I see no force in the contention raised by Mr. A. K. Brohi, the learned counsel for the appellants, that the provisions contained in subsection (3) of section 9 of the Federal Court (Enlargement of Jurisdiction) Act, 1949, as introduced by the Amending Act X of 1957, are not valid law. In the result, I would hold that the period of "and for enforcing the decrees in question is twelve years and would expire sometime in the year 1967. The execution applications made on the 31st of October 1960, are, therefore, within time, and execution proceedings shall continue. The appeals are, therefore, dismissed. As, however, the legal question of limitation raised in these appeals was not free from consider able difficulty, I would leave the parties to bear their own costs. K. B. A. Appeal dismissed.