Mst. Shameem Begum and others Vs Syed Qaim Shah Bukhari and others

PTSIIATIIAR HIGH . PESHAUIAR

(JUDICIAL DEPARTMENT)

CR No. 87a-Pl2022

Mst. Shameem Begumand and others

Petitioners.

V/s

Syed Qaim Shah Bukhari and others

Respondents.

For the Petitioners: Mr. Khalid Mahmood, Advocate.

For the Respondents: Syed Naeem Shah Bukhari, Advocate.

Date of hearing: 22.03.2023

JUDGMENT

SYED ARSHAD ALI. J:- This Civil Revision is directed against the judgment/order of learned Additional District Judge-IX, Peshawar dated 30.06.2022 whereby appeal of respondent No.l was allowed by restoring his execution petition.

L Brief facts of the case axe that in the first round of litigation, Syed Ghulam & others brought a claim for possession of the land by exercising the right of pre-emption under Martial Regulation No.115. A decree was passed in favour of the plaintiffs on 08.08.1985. The decree holders had no resources to pay the pre-emption amount; therefore, they inked an agreement wherein it was agreed that Syed Qaim fl- Shah Bukhari will pay the amount and the plaintiffs in that case (his father and other relatives) will transfer the decretal property except 8 iarib of land to him. As a result of the agreement, Syed Ghulam Shah, father of the plaintiff

transferred land in favour of Syed Qaim Ali Shah through registered deed No.17 dated 30.05.1984 based on which Mutation No.3255 was attested on 22.08.1985.

3.Other relatives of the plaintiff failed to honour the terms of the agreement. He was, therefore, obliged to file a suit for specific performance of the agreements dated 21.01.1984, 02.10.1985, and the registered deed dated 13.05.1989. During the pendency of the suit, some of the defendants conceded the claim of the plaintiff and transferred land measuring 66 kanals and 6 3/q marlas in favour of the plaintiff through mutation No.3260. However, defendants No.8 to l0 (Mst. Shameen Begum and others), the present petitioners maintained contest.

The leamed trial court vide order and judgment recorded on 10.07.2009 allowed a decree in favour of the plaintiff.

4.Feeling dissatisfied with the order of the learned Civil Court, the defendants assailed the order before the appellate forum. Learned Additional District Judge-XI, Peshawar reversed the order of the trial court and dismissed the suit vide order dated 26.01.2010.

5.The plaintiff feeling aggrieved with the order of the appellate court filed C.R No.3 601201,0. This Court while hearing the revision petition restored the judgement/decree of the trial court through an order/decree recorded on26.L1.2012.

6.The controversy did not end up there and the defendants in the case went up to the august Supreme Court of Pakistan by filing civil Appeal No.162-P and 163-P of 2012. The

Hon'ble Supreme Court of Pakistan vide its order recorded on 28.05.2018 affirmed the order of this court while dismissing the appeal.

L It so happened that after obtaining the deuee from the learned trial court, the plaintiffs petitioned the court for execution of the decree in the year 2009; however, after the reversal of the order/decree by the learned appellate court the execution petition was dismissed on 18.02.2010. The order reads thus: -

"D.H through counsel present. Attested copy of appeal/judgment received. In the light ofjudgment of the appellate court the execution stands infructous hence dismissed.---"

8.This revision petition arises out of the second round of litigation which started in the case when the plaintiff after decision of the case by the august Supreme Court of Pakistan filed a second application for execution on23.07.2019 to get the fruits of the decree.

g. The judgment debtors preferred to file an objection petition. They also moved a separate application under Section 48 of CPC for dismissal of the execution petition on the ground that the execution is barred by limitation. Learned executing court vide order dated 29.04.2022 dismissed execution petition by considering it as time-barred. The relevant extract from the order is reproduced here for ready reference: -

"The suit was decreed in favour of the plaintiff on 10.07.2009. Plaintiff Jiled first execution petition well within time for the

satisfaction ofdecree passed in his favour. The said execution petition was dismissed as the original deuee wos set aside. The decree granted by the trial court was restored by august Peshawar High Court on 26.11.2012. plaintffidecree holder filed second execution petition on 23.07.2019 for the satisfaction of decree passed in his favour with the delay of almost eight months. The decree holder has not filed any application for condonation of delay. Petitioner could not show sfficient cause for Jiling the second execution petition with such delay.---"

10, The decree holder went in appeal against the order of the executing court and the learned appellate court through order and judgment recorded on 30.06.2022 reversed the order of the lower forum and passed an order for restoration of the execution petition. Relevant para from the order reads thus: - "In the instant case the /irst applicationfor executton wos instituted in time which was dismissed on ground that the appellate court reversed the decision. After iudgment and decree of Hon'ble High Court and august Supreme Court, the application for execution ofdecree shall be treated as first petition of execution because the decision was intervened bY a modified view of appellate caurt then its reversal by the Hon'ble High Court. The provided time of limitation for filing an execution petition is three years and in the instant petition is well within time of the decision of the august Supreme Court. Let this court to6ifle:rs it as second petition of execution then the provided period oJ'limitation is stx yeors and the instant petition again is well within time, however, this court is of the 2 view that once the limitation started to run then no subsequent event can stop it from runtning. On this analogt, the petitioner afler the iudgment and decree of Hon'ble Supreme Court is first petition of execution on the principle of merger ofiudgments"'

11.The judgment debtors/petitioners feeling dissatisfied with the order ibid assailed it through the presentation of the present revision Petition.

72, Arguments heard and record of the case was perused.

13.In this petition, the following two issues have been raised for adj udication;

I Whether the application submitted by the decree holder on 23.07.2019 has to be treated as second petition or continuation/revival of the fi rst application?

11 Whether the petition is within time?

Oninion of the Court on first issue: -

14.Order XXI Rule 11 of the Code of Civil Procedure, 1908 (CPe) governs the applications for execution of all types of decree which, inter-alia, envisages that the application for execution should be in writing, signed and verified by the applicant or by some other persons on his behalf. Rule 11 Sub- Rule 2 of ibid also provides the manner and mode of the execution which, inter-alia, includes the arrest and detention of the accused in prison, appointment of receiver, delivery of the decreed property etc. Indeed, it is settled law that once the execution petition has been filed by the decree holder, it cannot be dismissed for no default of the decree holder unless it is executed by satisffing the decree. If any application of the decree holder is dismissed for no default of the decree holder d without satisffing the decree, the second application being similar in scope and character to the previous one, the letter will be deemed to ancillary one in continuation of the previous one. A fresh application in terms of Section 48 of CPC would be only that application; if the previous application of the decree holder was finally disposed of and after that a fresh application is filed by decree holder against parties or

properties different from those proceeded against previous execution petition. Mere factlhat when a decree passed by the trial court is being executed by the executing court and during the said period, the appellate court reverses the judgment and decree of the trial court and as a consequence thereof, the execution is dismissed and when the said decree of the trial court is ultimately restored by the revisional court or the Apex Court, the first application so dismissed followed by the second application after the final judgment passed by the Superior Court shall not be regarded as fresh application because the earlier application was never decided in accordance with manner and procedure provided under Order XXI of CPC which inter-alia envisages for satisfaction of the decree through process of execution.l

Therefore, it is the opinion of this Court that the application submitted by the decree holder on 23.07.2019 is not to be treated as a fresh application but would be an application in continuation/revival of the first application.

of the on second

As stated above in the present case, the decree was passed by the trial court on 10.07.2009.It was set aside by the first appellate court'on 26.Ol.2OtO and this court while fl hearing a civil revision No.360/2010 has restored the judgment and decree of the trial court on 26.L1.20t2. The United Bank Limited vs. Fateh Hayat Khan Tawan & other (2015 scMR

I

r33s) AmirBegum Vs. Mir Fateh Shah (PLD 1968 Karachi 10) Shiva Shankar Das and others Vi. Mufti Syed Yusuf Hasan (AIR 1934 All

SurendraNath Dutta vs. Mohini Mohan chakravarty (AIR 1954 Cal73) p*t p"tl chinna venkanna and others vs. Pentapati Bengararaju and others (1964, 1964 AIR 1954, 1964 SCR (6) 25 l)'

judgment and decree passed by this Court on 26.1I.2012 was appealed before the Apex Court through Civil Appeal No.162- P and 163-P of 201,2. The Supreme Court vide judgment dated 28.05.2018 dismissed both the appeals of the petitioners.

15.It is by now settled that appeal is the continuation of original proceedings before the higher forum for the purpose of testing the soundness of the decision of the lower court and for the purpose of execution, it is the final decree/order of the last court in the series, even if such a decree etc be of affirmation which has to be executed.2

76.In the present case, though the first decree was passed by the trial court on 26.01.2010 which was set aside by the first appellate court, however, was affirmed by this Court on 26.11.2012 and on further appeal, the Apex Court had finally affirmed the same on 28.05.2018, therefore, for the purpose of execution, the period of limitation would start from the final judgment of the Apex Court being the judgrnent of the final appellate court. Hence, the appellate court has rightly held that the execution filed by the decree holder respondents on 23.07.2019 being within time are not open to any exception

77.Resultantly, this petition having no merit is accordingly dismissed.

ANNOUNCED.

:tr Judee Haider Shah SSS

2.sahabzadi Meharunisa and another vs. Mst. Ghulam Sugluan (PLD 2016 SC 358) Muhammad Younas Vs. Pakistan Post through Divisional Superintendent, Sialkot (2021cLc 126).