Ziarat Gul vs Muhammad Hamayun

PESHAWAR HIGH COURT, PESHAWAR.

FORM ‘A’

FORM OF ORDER SHEET

S.No. Date of Order or other proceedings with signature of order the Judge

C.R.No. 288-P/2013.

Present: Mr. Murtaza Khan Durrani, Advocate, for the petitioners.

Mr. Attaullah Khan Tangi, Advocate, for the respondents.

YAHYA AFRIDI,J.- This revision petition is directed against the concurrent findings of the two Court below, whereby application of the petitioners for rejection of execution petition was dismissed by the learned Civil Judge/Judicial Magistrate-II, Tangi vide judgment and order dated 10.2.2012 which was upheld in appeal by the learned Additional District Judge, Shabqadar Camp Court Tangi vide judgment and order dated 28.1.2013.

2.Brief and essential facts leading to the present petition, in chronological order, are as follows:- Muhammad Hamayun and others,

(“respondents”) filed a suit in the Court of learned Civil Judge, Tangi.

Suit of the respondents was decreed in their favour by the learned trial Court.

The petitioners filed appeal against the above decision, which was dismissed by the learned Appellate Court.

The respondents/decree holders filed execution petition for execution of decree dated 12.9.1992 in the learned Executing Court but the same was suspended by this Court on 17.7.1994.

After dismissal of revision petition of petitioners by this Court, the respondents/decree holders filed an application for restoration of execution petition, which was allowed.

The execution petition was dismissed in default on 3.10.2010 in the following manner:

“The execution petition in hand is hereby dismissed in default. However, the decree holder may

apply afresh if he so desire”.

The respondents/decree holders filed second execution petition in the learned Executing Court and the petitioners also filed an application for its rejection being not maintainable.

The application of petitioners was dismissed by the learned trial Court on 10.2.2012.

Feeling aggrieved, the petitioners filed an appeal before the Appellate Court but the same was also dismissed vide order dated 28.1.2013 in the following manner:

“As already observed that decree was passed in favour of the plaintiffs by the learned Civil Judge, Tangi on 12.9.1992 and till dismissal of the execution in the year 2010 decree holder have not been given the fruit of the decree entirely. Furthermore, in light of article 181 of the Limitation Act, period provided for first application for execution of the decree is 03 years and where first application for execution of the decree is made within 03 years as provided by article 181 of the Limitation Act, then in such circumstances, subsequent application can be

within the period provided under section 48 of the Code of Civil Procedure, therefore, keeping in view this discussion the subject application filed by the decree holder for execution of the decree on 9.12.2011 is within time.

Apart from the above, it is also pertinent to be mentioned here that when the execution petition was dismissed by the learned trial court vide order dated 30.10.2010 for non- prosecution, learned executing court in that order has specifically observed that the decree holder can file fresh application, if so advised.

Pursuant to what has been discussed herein above, I see no merit in the instant appeal and the same stands dismissed. No order as to costs”.

Hence, the instant Revision Petition.

3.Valuable arguments of the learned counsel for the parties heard and the record carefully perused.

4.Article 182 of the Limitation Act, 1908 (“Act”) prescribed the period of limitation for applying for execution of a decree. However, Law Reforms Ordinances, 1972 (“Ordinance”), amended not only the Act, whereby Article 182 was omitted but also reduced the period of limitation provided in Section 48 of the Code of Civil Procedure, 1908 (“CPC”) from a period of 12 years to six years. With the deletion of Article 182 of the Act,

and there being no other provision relating to the period of limitation for filing an application for execution of a decree in the Act, the residuary Article 181 of the Act become applicable to such applications.

5.Before we proceed further, it would be pertinent to review the relevant provisions of the Act and CPC after the amendments introduced therein vide Ordinance. The same now read as follows:

Article 181 of the Act

Description of application. Period of Time from which limitation period begins to run Application for which no Three years When the right to period of limitation is apply accrues. provided elsewhere in this schedule or by section 48 of the Code of Civil Procedure,

Section 48 of the CPC

Execution barred in certain cases.—(1) where an application to execute a decree not being a decree granting an injunction has been made, no order for the execution of the same decree shall be made upon any fresh application presented after the expiry of six years from—

(a)the date of the decree sought to be executed, or

(b)where the decree or any subsequent order directs any payment of money or the delivery of any property to be made at a certain date or at recurring periods, the date of the default in making the payment or delivery in respect of which the applicant seeks to execute the decree.

(2)Nothing in this section shall be deemed—

(a)to preclude the Court form ordering the execution of a decree upon an application presented after the expiration of the said term of six years, where the judgment-debtor has, by fraud or force, prevented the execution of the decree at some time within six years immediately before the date of the application; or

(b)to limit or otherwise affect the operation of article 183 of the First Schedule to the Limitation Act, 1908”.

6.Keeping in view the aforementioned provisions of law, it is clear that a decree-holder has to file an application for execution of decree within a period of three years from the date of passing of the said decree as provided under Article 181 of the Act. In case, any “fresh” application is to be made by the decree-holder subsequent to the first application filed for execution of a decree, the same has to be filed within a period of six years from the date of the decree.

7.The scope and the characteristic of Section 48 of CPC and its co-relation with Article 181 of the Act has been eloquently described by the Apex Court in its landmark judgment in Mahbood Khan’s case (PLD 1990 Supreme Court 778), the relevant portion of it is reproduced below:

“The position that emerges from the above discussion is that, as already stated, the first application for execution of a decree would be governed by the residuary Article 181 and the rest of the applications made, thereafter, will be governed by the six years time limit prescribed by section 48. Although the original purpose underlying section 48, read along with Article 181 and 182 of the Limitation Act, before the amendment of the law was to provide maximum limit of time for execution of a decree. But in the changed position as a result of Law Reforms Ordinance, the only effect of section 48 would be to provide limitation for subsequent execution applications after the first one. The result would be that if no application at all is made within the period prescribed by Article 181, the execution application made, thereafter, would be barred under the said Article and as such there would be no occasion to avail of the benefits of the extended time provided by section 48, C.P.C. In other words once an application for execution is made within time so prescribed, any number of applications for execution can be presented within the six years period from the date of decree. This construction, in my opinion is the only construction that can be placed on the consequent legal position arising out of the amendments made by the omission of Article 182 and substitution of six years period in section 48, C.P.C. Otherwise the provisions for repeated applications every three years or taking steps in aid of execution provided for in Article 182, having disappeared, section 48 would become redundant and ineffective”.

(Emphasis provided)

The “ratio decidendi” of the above judgment has been reaffirmed and followed by our superior Courts in cases including Bakhtiar Ahmed’ s case (2013 SCMR 5), Mian Azizuddin’s case (1996 SCMR 759) and Fateh Hayat Khan’s case (2004 CLD 223).

8.In the instant case, the present respondents (the decree holders) had moved the first application for execution of decree within the prescribed three years.

Hence, they had crossed the initial hurdle of limitation.

However, the said first execution petition filed by the respondents was not decided on merits or concluded by executing the command of the decree. In fact, the same was dismissed in default on 3.10.2010 by the executing Court and the decree holder was “directed” to apply afresh, which they did on 9.12.2011.

9.When this Court canvasses the law relating to execution of decree by a competent civil Court, it is noted that there is no express provision provided in C.P.C. for an execution petition to be dismissed in default or non- prosecution except under Rule-57 of Order XXI, which provides as follow:-

“Determination of attachment. – Where any property has been attached in execution of a decree but by reason of the decree-holder’s default the Court is unable to proceed further with the application for

execution, it shall either dismiss the application or for any sufficient reason adjourn the proceedings to a future date. Upon the dismissal of such application the attachment shall cease”.

As far as the provisions provided under Orders IX and XVII of the C.P.C. are concerned, the same relates to consequences for non-appearance of the parties during the trial and adjournments, respectively. The said provisions do not relate to execution proceedings. The case-law that has developed on dismissal of execution proceedings for non-prosecution is restricted to Rule-57 of Order XXI of the C.P.C.

10.It would be interesting to note that the Indian Supreme Court in a case V.Uthirapathi vs. Ashrab Ali & others decided on 18.2.1998 as an ‘obita dicta’, while discussing the legal consequences of the execution petition having been filed within the time clearly held that the same could not be dismissed for default on not bringing on record the legal representative of the decree holder.

However, the august Court did hold that in case of death of judgment-debtor, the Court could fix a reasonable time for decree holder to bring on record the legal representative of the deceased judgment-debtor, failure to do so, may result in dismissing the execution petition. This Court is also in consonance with views held in the above

case that only in case where the directions of the executing Court are not complied with would expose the petition being dismissed for its disobedience to the Court’s direction.

11.There is a delicate balance, which has to be maintained between the principle ‘vigilantibus, non dormientibus, jura subveniunt’ (the laws give help to those who are watchful and not to those who go to sleep) on one hand, and the majesty of the command of a Court, as reflected in a valid lawful ‘decree’ to be implemented and executed in letter and spirit, so as to ensure the supremacy of “rule of law”.

12.This Court finds that once the decree holder has invoked the execution of the decree within the prescribed time, then it is the duty and obligation of the Executing Court to ensure the complete enforcement of the same. In case of failure on the part of the decree holder to appear before the executing Court, the said application for execution can best be adjourned ‘sine die’ but cannot be dismissed without complete satisfaction of the decree.

13.In the present case, the order of the executing Court dated 3.10.2010 dismissing the first application for executing the decree for default is surely beyond the mandate of law and can best be deemed to be an order of

executing Court adjourning the same ‘sine die’.

Accordingly, the second application of the respondent dated 9.12.2011 be deemed as the application for restoring the execution proceedings. There being no provision of limitation provided in the Act for such circumstances, Article 181 of the Act would be attracted and make the application with the period of limitation of three years.

Even otherwise, the order of the executing Court dated 3.10.2010 had itself provided for the respondents to apply for the revival of the execution proceedings.

14.It may also be noted that the second application filed by the respondents on 9.12.2011 cannot be termed as a “fresh” application, so as to bring the same within the purview of the period of six years envisaged in section 48 of the C.P.C. In fact, this issue came up before this Court in Abdur Rehman’s case (2000 CLC 1047) wherein this Court relying upon the precedents has held that:

“The word ‘fresh’ has been defined in Oxford English Dictionary Vol. IV, means, inter alia, “new” “recent” “newly made” first application for execution of a decree can be filed within a period of three years from the passage of the decree and the same would be governed by the residuary Article 181 of the Limitation Act. On the plain language of section 48, C.P.C. the object underlined that section was to provide an outer limit of time and prohibit the making of an order for execution of the decree on a fresh

application presented after expiration of 6 years from the date of decree. The question whether or not an execution proceedings has been finally disposed of so as to be incapable of revival or continued, is the question of fact which had to be determined having regard to facts and circumstances of a particular case. In the case in hand the first application for execution was filed within the limitation period, i.e., three years. This execution petition, as mentioned, above, was kept pending by the Executing Court and thereafter, was stayed by a Division Bench of this Court vide its order, dated 28.10.1984. The said execution petition was not finally decided by the Executing Court. The execution application must be deemed to be pending so long as no final order disposing of it judicially has been passed thereon. The subsequent application in such a case for execution will be deemed to be one merely for the continuation of the original proceedings. On the other hand, where the final judicial order terminating the proceedings has been passed on the application it cannot be revived and subsequent application for execution will be regarded as fresh application and not one for revival and continuation of original proceedings.

But in the changed position as a result of Law Reforms Ordinance the only effect of section 48, C.P.C. would be to provide limitation for subsequent execution application after the first one. The result would be that if no application at all is made within the period prescribed by Article 181, the execution application made thereafter would be barred under the said Article and as such there would be no occasion to avail of the benefits of the extended time

provided by section 48, C.P.C. In other words once an application for execution is made within time so prescribed, any number of applications for the execution can be presented within 6 years period from the date of the decree. In the case in hand, as discussed in detail in the above paragraphs decree was passed on 8.10.1980, the first application for execution was filed on 1.9.1980, i.e well within the time limit prescribed by Article 181 of the Limitation Act. The subsequent application filed on 10.7.1995 was not a ‘fresh’ application but was an application for revival/restoration of the earlier application, therefore, the same was not barred by time”.

(Emphasis provided)

15.Earlier, this Court in Syed Jumaat Ali Shah’s case (PLD 1994 Peshawar 22), has in similar circumstances as in the present case, clearly laid down the principles that execution petition, which is dismissed in default cannot be termed as a “fresh” application for execution as provided under Section 48 of C.P.C. to be barred by time. The worthy Court explained the principles very elaborately in terms that:

“There is no dispute that under section 48, C.P.C. no order for the execution of a decree shall be made upon any fresh application presented after the expiration of six years from (a) the date of decree sought to be executed; (b) where the decree or any subsequent order directs any payment of money or the delivery of any property to be made at a certain date or at recurring periods, the date of

the default in making the payment or delivery in respect of which the applicant seeks to execute the decree. The term "an application to execute a decree" has been held to be a substantive application under Order 21, Rule 11, C.P.C. or any other application whereupon proceedings in execution are commenced. It has been consistently held that the application referred to in the said section does not refer to ancillary or incidental applications and, therefore, any application made in continuation or with reference to an application for execution of the decree would not be hit by the principles of limitation if the substantive application for the execution of the decree has been made within the prescribed limitation. In this view reference may be made with advantage to Surrendra Nat Datta v. Mohini Mohan Chakarwarti (AIR 1954 Calcutta 73). Similarly in B. Sheewa Shankar Dass and others v. Mufti Syed Yousaf Hassan AIR 1934 Allahabad 481 a Full Bench of the Court held that a subsequent application filed beyond 12 years of the decree was not a fresh application but was in continuation of the original application. A similar view was expressed in ThakerParsad v. Faqirullah in the case reported as (106 PC 1894) holding that the first application notwithstanding that the order striking it off had been made was not annulled but afforded a fresh starting point for limitation. In the case in hand we have given our considerable thoughts to the point involved regarding limitation and we are firm in our view that since the original application for the execution of the decree had been made within time and was dismissed for default, the subsequent application moved for the execution of the same decree was

the continuity of the previous proceedings and the subsequent application being an ancillary one would not be hit by the limitation”.

16.In view of the above legal discourse, this Court is of the firm view that:

Firstly, the executing Court is not empowered to dismiss the execution petition in default of the decree-holder appearing during the course of execution proceedings except in circumstances as provided under Rule-57 of Order-XXI of CPC or in case, the decree holder, despite direction of the executing Court fails to comply therewith.

Secondly, for any application to come within the mischief of being “fresh” application as envisaged in Section 48 of C.P.C., the earlier execution proceedings ought to have been disposed of on merit vide a judicial order concluding the proceedings.

Thirdly, in case, an application for execution of a decree has been filed within the stipulated period provided under Article 181 of the Limitation Act, 1908 and the proceedings thereof were dismissed in default on non-

appearance of the decree-holder, any subsequent application for execution of a decree would not be a “fresh” application as provided under Section 48 of C.P.C. so as to bring it within the time frame provided therein.

17.Accordingly, this Court, for different reasons, would not like to disturb the decision rendered by the two Courts.

Resultantly, the instant Revision Petition being devoid of merit is dismissed.

JUDGE

*Nawab Shah*