1990 PLP 386 (MLD)

‑‑‑S. 14‑‑‑Exclusion of terms spent in proceedings before Courts of defective jurisdiction‑‑‑Petitioner filing objection petition against execution of decree after about 9 years from passing of that decree, claimed deduction of time spent in prosecuting suit riled by him callenging decree sought to be executed‑‑‑Benefit of S. 14, held, could only be extended to petitioner if such proceedings were prosecuted by him with due diligence and in good faith before a Court which was unable to entertain suit of petitioner on account of defect of jurisdiction or other course of like nature‑‑‑Petitioner neither had filed any application alongwith objection petition for seeking benefit of S.14, nor had filed application for condonation of delay mentioning such circumstances and thus he was not entitled to the deduction of time as claimed by him. (d) Limitation Act (1X of 1908)‑‑ ‑‑‑S. 5‑‑‑Condonation of delay‑‑‑Mistaken advice or ignorance of law per se, held, was no ground on basis of which condonation of delay could be sought. Abdul Ghani v. Ghulam Sarwar PLD 1977 SC 102; U.H. Joseph and others v. Settlement Commissioner and others 1982 SCMR 752; Mirza Muhammad Saeed v. Shahab‑ud‑Din and 8 others 1983 SC 385 and Nazir Ahmad v. Fateh Muhammad 1986 SCMR 1495 ref. S.M. Tayyab for Petitioner. Ch. Muhammad Arshad for Respondents Nos.1 to

4. This petition arises out of an execution matter. The application for execution of a decree dated 19‑2‑1980 was filed by respondents Nos. 1 to 4 against the other respondent. On 7‑6‑1984 the petitioner had challenged the said decree by filing a suit for declaration alleging that the decree was ineffective against his rights and could not be executed against him. This suit was dismissed by the trial Court on 3‑5‑1988. Aggrieved by this decision the petitioner filed an appeal which was, however, dismissed on 12‑4‑1989 on the ground that the remedy of the petitioner lay in filing an objection petition before the Executing Court rather than filing a civil suit. Thereafter the petitioner filed application under Order 21 Rule 99, C.P.C. on 1‑6‑1989. This application was, however, dismissed by the Executing Court on 13‑6‑1989. The petitioner thereafter filed an appeal which was dismissed by the learned District Judge, Sargodha on 10‑7‑1989. The present petition is directed against these orders dismissing the objection petition filed by the petitioner.

2. The first question which arises for consideration is as to whether the objection petition/application under Order 21 rule 99, C.P.C. filed by the petitioner was within time. Since there is no specific period prescribed for filing the application under Order 21 rule 99, C.P.C., it would be governed by the residuary Article viz., 181 of the Limitation Act, 1908 which provides a period of three years from the date when the right to apply accrues. Admittedly, the decree in the present case was passed on 19‑2‑1980. According to the case of the petitioner he came to know of the decree on 7‑6‑1984 when he filed the suit challenging the aforesaid decree. This suit was dismissed on 3‑5‑1988 and thereafter the appeal against this decision was dismissed by the Additional District Judge on 12‑4‑1989. These facts show that the petitioner was aware of the decree at least on 7‑6‑1984 and even if a period of three years is computed from the aforesaid date the objection petition filed by the petitioner on 1‑6‑1989 was clearly barred by time.

3. The learned counsel, however, submitted that the petitioner was entitled to deduct the time spent by him in prosecuting the suit filed by him in terms of section 14 of the Limitation Act, 1908 as the suit was dismissed by the Additional District Judge on the ground that it was not competent. It is not denied by the learned counsel that alongwith the objection petition no application seeking the benefit of section 14 was ever filed. In these circumstances, I do not see as to how the petitioner could claim the deduction of this time under the aforesaid provision of law. It is to be seen that the benefit of section 14 of the Limitation Act, 1908 can only be extended if the conditions prescribed therein are fulfilled namely that the other civil proceedings should have been prosecuted with due diligence and in good faith before a Court which was unable to entertain it on account of defect of jurisdiction on other cause of like nature. The question as to whether the previous proceedings were prosecuted in good faith and with due diligence is one 'of fact. In these circumstances, it was necessary for the petitioner to have filed an application in this behalf duly supported by affidavit and other, material before the Executing Court. No efforts, however, appear to have been made by him in this behalf. The petitioner, has however, filed an affidavit sworn by Hafiz Ghulam Muhammad who represented him before the District Court, Sargodha that a request was verbally made before the Additional District Judge in this behalf. Even if it be so, since admittedly no prayer was made before the trial Court nor any application or affidavit riled in this behalf, the petitioner could not claim the benefit of section 14 of the Limitation Act, 1908. There is not even any prayer for condonation of delay in the objection petition filed by the petitioner.

4. Even otherwise, on merits no case for condonation of delay is made out. The provisions of Order .21 rule 103, C.P.C. after its amendment by ‑the Law Reforms Ordinance, 1972 specifically bar the riling of a separate suit in such like matters. The civil suit filed by the petitioner was obviously incompetent and was dismissed as such by the learned Additional District Judge. No reason has been given by the petitioner as to why and under what circumstances instead of filing the objection petition, civil suit was filed. Mistaken advice or ignorance of law per se is no ground on the basis of which condonation of delay could be sought. Reference in this connection may be made to Abdul Ghani v. Ghulam Sarwar PLD 1977 SC 102, U.H. Joseph and others v. Settlement Commissioner and others 1982 SCMR 752, Mirza Muhammad Saeed v. Shahabud Din and 8 others 1983 SC 385 and Nazir Ahmad v. Fateh Muhammad 1986 SCMR .1495. There is thus no justification for condonation of delay even under section 14 of the Limitation Act, for, elements of due diligence and good faith are lacking in the present case. It appears that the petitioner has already succeeded in delaying the execution of the decree for the last about nine years. He is, therefore, not entitled to any indulgence. There is no merit in this petition. It is dismissed in limine. H.B.T./S‑607/L Petition dismissed.