Pendency of appeal

2026 YLR 779 LAHORE-HIGH-COURT-LAHORE Judicial Precedent

S.12Limitation Act (IX of 1908), First Sched., Art.181Civil Procedure Code (V of 1908), S.115Suit for specific performance of agreement to sellExecution of decreeLimitationExecution proceedingsCommencement and computation of limitation periodDeterminationPendency of appealEffect upon execution of decreeExecuting court bound to execute a decree as it standsPrinciple

Briefly, a suit for specific performance of an agreement to sell was instituted by the respondent/plaintiff against the vendor (mother of the petitioners), which was decreed, subject to payment of the remaining sale consideration

The appeal against the decree was dismissed for non-prosecution, and the restoration application was also dismissed

Thereafter, the decree-holder filed an execution petition

Objections to execution were filed by the judgment-debtors which were dismissed, and the appeal against that order was also dismissed

The matter before the High Court in present civil revision petition concerned "whether the execution petition was barred by limitation and whether the objections to execution had been rightly dismissed by the courts below?"

Held: There was no specific Article of Limitation Act, 1908 which regulated the filing of execution petition in the matter of decree for specific performance or a preemption matter and the residuary Art.181 of the said Act applied which provided a period of three years from the date when the right to apply accrued and if decree holder was in possession of property having paid or deposited the sale price he would not have been required to file execution petition and right to apply in the matter would have arisen had the judgment debtor refused to perform his part

In the present case the findings of the Trial Court were to the effect that the decree-holder was in possession of the property and had paid the earnest money while the balance sale price was deposited in terms of the decree of the court, as such, respondent No.1 could legally proceed with the execution of decree

As to the objection viz. balance sale consideration not being deposited in court within time, it was observed that decree was silent and did not stipulate the period during which balance sale consideration was to be deposited and, therefore, respondent could not suffer due to act or fault of court which passed the decree and that the respondent having deposited the amount on vacation of injunctive order passed in appeal, could not be made to suffer adversely

Even otherwise the Executing Court had to execute the decree as it was and could not question validity of the same on the ground which could have been raised in appeal against the decree

Another factor in the present case was that the suit was decreed on 10.12.2012 against which an appeal was filed on 02.1.2013 and on 02.1.2013 status quo was ordered to be maintained with the result that execution petition could not be filed and that the appeal was dismissed for non-prosecution

On 29.4.2016 an application for restoration was filed which also remained pending for a considerable time and thereafter same was dismissed on 01.3.2017, while the execution petition was filed on 28.2.2020 which was within three years from the date of actual date of termination of proceedings

Impugned order was just, fair and legal and called for no interference

Civil revision petition was dismissed, in circumstances.

2022 CLD 1454 LAHORE-HIGH-COURT-LAHORE Judicial Precedent

Ss. 19 & 22Civil Procedure Code (V of 1908), O. XLI, R.5Limitation Act (IX of 1908), S. 15 & Art. 181Execution of decreeLimitationPendency of appealEffectAppellant Bank sought execution of decree which petition was dismissed by Banking Court as barred by timePlea raised by Bank was that execution was sought after decision in appealValidityMere filing of appeal was not to operate as stay of proceedings under decree appealed from

No embargo on rights of decree holder to initiate execution proceedings against judgment debtor, that too, from the date of accrual of right

When stay was granted by court regarding execution of decree, time of continuance of that order was excluded under S. 15 of Limitation Act 1908, from period of limitation for filing execution petition

No stay order was granted by High Court for suspending decree nor stayed of execution proceedings which could be excluded from period of limitation for seeking execution of judgment and decree passed by Banking Tribunal

Decree continued to maintain its identity and was capable of execution from the day the right accrued to appellant Bank

Appellant Bank failed to file execution within the period of limitation as contemplated in Art. 181 of Limitation Act, 1908, which commenced from the day the right accrued, therefore, execution petition was barred by time

Even under special procedure provided in S. 22 of Financial Institutions (Recovery of Finances) Ordinance, 2001 operation of judgment and decree under execution could not be stayed nor execution proceedings were suspended by Appellate Court or Executing Court

Proceedings under execution were to go on and mere pendency of appeal did not itself operate as a stay

Appellant Bank sought execution of judgment and decree passed by Banking Tribunal and even if rule of merger was applied, appellant Bank was to seek execution of appellate judgment and decree, which was never sought

High Court declined to interfere in the matter as execution petition was not maintainable

Appeal was dismissed, in circumstances.

2021 CLD 906 LAHORE-HIGH-COURT-LAHORE Judicial Precedent

Ss. 2(g) & 20(7)Financial facility from financial institutionsWilful defaultDeterminationPendency of appealEffect

Petitioners were aggrieved of notices issued by Federal Investigation Agency on the ground of committing willful default of their financial facilities availed by them from financial institutions, though proceedings to determine default were pending before Appellate Court

Validity

One right of appeal is fundamental and basic right

When a person's civil liability hinges upon determination, it is not only to be made by Court of original jurisdiction but also by at least one appellate Court

Offence of wilful default under S. 2(g)(i) of Financial Institutions (Recovery of Finances) Ordinance, 2001, could only arise once not only the proceedings before Court of original jurisdiction but also before Appellate Court in any appeal filed under Financial Institutions (Recovery of Finances) Ordinance, 2001 were concluded

High Court struck down the notices issued by Federal Investigation Agency, as the same were ultra vires

Constitutional petition was allowed accordingly.

2016 PTD 1070 LAHORE-HIGH-COURT-LAHORE Judicial Precedent

S. 7Sales tax, recovery ofPendency of appeal

Grievance of petitioner was that authorities attempted to recover disputed sales tax during pendency of appeal before authorities

Validity

Authorities were not empowered to recover tax amount demanded from petitioner/tax payer till decision of appeal before Commissioner (Appeals)

High Court directed the Commissioner Inland Revenue (Appeals) to take up stay application of petitioner against notice of recovery and to decide the same and that till the time appeal was finally determined or application of stay was decided, operation of notice of recovery against petitioner would remain suspended

Constitutional petition was disposed of accordingly.