2008 PLP 197 (CLC)

MIAN HAMID FAROOQ, J.

The respondents filed the suit for possession through pre-emption against the petitioners; out of the four petitioners, Raman and Ahmad Nawaz got their statements recorded before the learned trial Court to the effect that they have received an amount of Rs.1,03,000 and they have no objection if the suit is decreed against them to the extent of 12 Kanals; respondents' statements were also recorded and pursuant thereto, respondents' suit was decreed to the extent of 12 Kanals against Ramzan and Ahmad Nawaz, while the suit was dismissed against the other petitioners, vide judgment and decree, dated 15-12-1996. The decree-holders, on 8-5-2000, filed the execution petition seeking implementation of the decree, dated 15-12-1996. The petitioners resisted the execution petition through objections pleading that since the execution petition was filed after the period of three years from the date of decree, therefore, it is barred by time. The objections were contested by the respondents through written reply. The learned trial court in the ultimate analysis carne to the conclusion that the decree-holder is entitled for exclusion of the period consumed in obtaining the certified copy of the decree, the execution petition is within time and thus dismissed petitioners' objection petition, vide order, dated 12-12-2001. Petitioners appeal was dismissed by the learned District Judge, vide impugned judgment, dated 20-2-2002, hence the present revision petition.

2. Learned counsel for the petitioners contends that the respondents applied for the certified copy of the decree on 7-6-1999, which was received by them on 2-7-1999, the execution petition was submitted on 8-5-2000 and even if the period for obtaining the certified copy of the decree is excluded, the execution petition was still barred by time.

3. Although the respondents are represented by their learned counsel namely Ijaz Ahmad Goreja, Advocate, whose name has duly been printed in today's cause list yet he is absent, thus the respondents are proceeded ex parte.

4. Admittedly, the decree was passed on 15-12-1996 and the execution petition was filed on 8-5-2000 i.e. after the lapse of 3 years 4 months and 22 days. Upon the perusal of the original record of the execution petition, find that the respondents, along with the execution petition, filed the certified copies of the statements of the parties, judgment of the Court and the decree-sheet. Both the Courts rejected the objections of the petitioners on the ground that the certified copy of the decree was supplied to the respondents after six months and four days and this period is to be excluded from the period of limitation fixed for filing the execution petition and thus, it was held that the execution petition is within time. To my mind, the crucial question under the circumstances, which arises here is as to whether a decree-holder is entitled for exclusion of the period spent in obtaining the certified copy of the decree sought to be executed. The plain reading of section 12(2) of the Limitation Act, 1908 shows that this provision of law is applicable only in cases of an appeal, an application for leave to appeal and an application for review of the judgment. Obviously the execution application is not one of the applications, which find mention in section 12(2) of the Limitation Act. This subsection deals with two types of applications, one for leave to appeal and another for review of judgment and certainly it does not talk about any other application including execution application. Words "appealed from or sought to be reviewed" used in section 12(2) are of great significance when read in conjunction with the words "an application for leave to appeal and an application for a review of judgment". These two expressions when read together will lead to the irresistible conclusion that a litigant can only take benefit of section 12(2) of the Limitation Act, when he intends to file an appeal, an application for leave to appeal and an application for review. The intention of the Legislature is very obvious because it used the expressions i.e. appeal, an application for leave to appeal and an application for review of the judgment. I firmly believe that the execution application is not one of the applications visualized in section 12(2) of the Limitation Act, for which time requisite for obtaining the copy of the decree is to be excluded. Thus, the respondents were not entitled for exclusion of the time spend in obtaining the certified copy of the decree sought to be executed. Both the Courts have erred in law while holding that the respondents were entitled for the period consumed in obtaining the certified copy of the decree for the purpose of its execution.

5. It is well-settled law by now that "first execution application" would be governed by residue Article 181 of the Limitation Act, which provides a period of three years for filing the execution petition from the date of decree and the rest of the applications made thereafter will be governed by the period of 6 years as prescribed by section 48, C.P.C., Joint reading of Article 181 of the Limitation Act and section 48, C.P.C. would show that the inner limit for filing execution application is three years as provided by Article 181 of the Limitation Act, while the outer limit for filing execution petition is prescribed by section 48, C.P.C. i.e. 6 years. It flows from the above that if no execution application is filed within the period prescribed under Article 181 of the Limitation Act i.e. within three years, the first execution application filed after the expiry of 3 years would obviously be barred by time. In such an eventuality, while filing the "first execution petition" the decree-holder cannot avail the benefit of the extended period provided by section 48, C.P.C. If any case-law is needed, judgments reported as Mahboob Khan v. Hassan Khan Durrani PLD 1990 SC 778 and National Bank of Pakistan v. Mian Aziz-ud-Din and 7 others 1996 SCMR 759 can be referred.

6. In the above perspective, as the execution petition was filed after the expiry of 3 years 4 months and 22 days and the decree-holders were not entitled for exclusion of the period consumed in obtaining the certified copy of the decree, therefore, to my mind the execution petition was clearly barred by time and both the Courts have grossly erred in law while holding otherwise.

7. In view of the above, the present revision petition is allowed and both the impugned orders are set aside with no order as to costs. Resultantly the execution petition stands dismissed being barred by time. S.A.K./M-555/L Revision accepted.