Haji Mir Badsha Vs District Officer, Revenue & Estate/Land Acquisition Collector, Peshawar and others

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PESHAWAR HIGH COURT, PESHAWAR

JUDICIAL DEPARTMENT.

FAO No.129 -Pl2023

Haji Mir Badshah and others Versus District Officer, Revenue & Estate/Land Acquisition Collector, Peshawar and others Date of hearins 06,05.2024

Appellant (s) by: Mr. Jehanzeb Khan Mu ha m m adzai, advocate.

Respondent (s) by: Mr. Farmanullah Khattak, advocate.

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JUDGEMENT

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IJAZ ANWAR. J:- The instant appeal has been filed under section 104 read with other provisions of the Civil Procedure Code, 1908 against the order dated 31.05.2023 of the learned Additional District Judge-III/ Model Civil Appellate Court, Peshawar whereby the ( execution petition of the appellants was dismissed

) According to the contents of the instant appeal, the appellants being owners of

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land measuring 42Kana\s-I5 Marlas comprising of Khasra Nos. l499ll, 149912, 16321150012 and 16321150014 situated next to the FC Post of Hayatabad out of which a land measuring 38 Kanals was acquired vide Award No.

l3}2lLACAiTA dated 04.04.2008 by the District Officer (Revenue and estate) Land Acquisition Collector, Peshawar for respondent No.l. The said Award was challenged before the District Officer Revenue and Estate, Land Acquisition Collector through an application under section 18 of the Land Acquisition Act, 1894. The said application was forwarded to the District Judge, Peshawar which was further entrusted to Additional District Judge-X, Peshawar/Referee Cl Court who due to absence of respondents, passed an ex-parte decree vide judgement dated 29.4.2010 whereby the compensation of the land was fixed @ Rt. 3,450001- per Marla alongwith

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w simple interest @ 6% and 15 % compulsory acquisition charges from the date of acquisition of possession tilt final payment thereof. The said judgement was challenged before the High Court in RFA No.27612010 during pendency of which the appellants approached the learned District Judge/ Judge Land Acquisition for execution/ implementation of the judgement and decree dated 29.04.2010 vide execution petition dated 14.02.2017. The respondents on 29.11.2022 after 03 years, 01 month and 20 days submitted objection petition questioning therein the maintainability of execution petition. During pendency of the objection petition, RFA No' 27612010 of the appellants was decided by this Court (High Court) vide judgement and decree dated 02.3.2023 whereby the judgement and ! decree dated 29.4.2010 of learned Judge Land Acquisition was upheld. The copy of the said

judgement was provided to the learned Executing CourilJudge Land Acquisition, however the learned ADJ-IIVMCAC Peshawar vide order dated 31.05.2023 dismissed the Execution Petition being time barred. Hence this appeal.

3.Arguments heard and record

perused

4 The Reference filed bY the

appellant/land owners for compensation pertaining to the acquisition of their land was decreed vide judgement and decree dated 29.4.2010 and the compensation was fixed at the rute of Rs. 3,45,0001- per Marla alongwith o/o compulsory acquisition interest @ 6 % and 15

charges. Finding themselves dis-satisfied from the judgement and decree, appellants filed RFA No. 246'Pl2Ol0 before this Court against the impugned judgement. For the first time' the

appellants filed application for execution of the judgement and decree dated 29.4.2010 on 14.02.2017. During pendency of the execution petition, an objection petition was filed by the respondents that in terms of section 48 CPC read with Article 181 of the Limitation Act, 1908 the execution proceedings cannot proceed as it is hopelessly time barred and requested for its dismissal. In the meantime, RFA No. 27612010 pending before this Court alongwith the cross objection was dismissed through a

consolidated/appellate judgement and decree dated 02.3.2023. After the dismissal of the appeal, the appellants have also submitted an application before the Executing Court for placing on record the appellate judgement and decree and also for its execution. The Execution Petition was, however, dismissed vide the impugned order dated 31.5.2023 holding that

execution petition was filed beyond the period of limitation.

5.Learned counsel for appellants while placing reliance on cases titled ooSardar Abdul Maiid Khan Lashari VS the ASIO-African Co. Ltd" ( 1992 SCMR 230. 'oMaulvi Abdul Oavum Vs Sved AIi asshar Shah and 5 others" ( 1992 SCMR 241). " Mst. Naziran Bibi and another VS Mst. Noor Begum" (1997 CLC 1479). "Messrs PFIZER Laboratories Vs Federation of kistan and

others" (PLD 1998 Sunreme Court 64).

"Muhammad Nazir and another Vs Oaiser Ali Khan and 4 others" (2003 SCMR 430.

"Nawabzada Tilla Muhammad Khan Vs Haii Muhammad Afzal and 4 others" (20I'2 YLR et ,oN and others VS

Mukhtar ul Hassan and others" ( PLD 2013 Supreme Court 478). "Messrs Building Store

and others Vs Muhammad Hanif and others" ( PLD 2014 Sindh 34). "Rawalpindi throueh Authorized Officer Vs Muha mmad and others" (2021 CLC 909) and o'Rabnawaz Vs Mst. bu Bibi and others" 2023

Peshawar-l9) contended that the order of the Referee Court was merged into the appellate judgement and decree and as such, it is now the appellate judgement and decree that has to be executed irrespective of the fact whether there is any modification made or not. He further contended that once the Appeal Court has passed the appellate judgement and decree, the period of limitation for submission of the Execution proceedings is to be counted from the date of judgement and decree of the Appellate forum.

t 6. Learned counsel representing the respondents, however, contended that the principle of merger is not applicable to the case

in hand. He further contended that the Appellate court has never suspended the judgement and decree, as such, it is on account of willful default of the appellants that they have not submitted the Execution Petition within time. He contended that the Execution Petition was filed after about 7 yearc of the judgement of the Executing Court, as such, the Executing Court has rightly dismissed the Execution Petition. Placed reliance on cases titled "Mahboob Khan Vs Hassan Khan Durrani" (PLD 1990 Supreme Court" 778)" 'oNational Bank of Pakistan Vs Mian Aziz ud Din and 7 others" (1996 SCMR 759).

"Bakhtiar Ahmad Vs Mst. Shamim Akhtar and others" (2013 SCMR 5). "House Buildine C C of Vs

Muhammad Iqbal throush LRs" (2007 SCMR and 4 others Sultan and

Humavun VS Mst. Sabiha Oavum and

others" (2023 SCMR 1660).

7.By now it is well settled that since no specific period of limitation is provided for submission of Execution Petition, as such, the residuary Article l8l of the Limitation Act, 1908 would be applicable which provides a period of about 03 years for submission of Execution Petition while section 48 of the CPC deals with submission of any fresh application for execution which can be entertained even after 06 years but the eventualities provided therein must be satisfied for the extension of such limitation period. The august Supreme Court of

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ooMaulvi Abdul Oavum Pakistan in case tilted

Vs Sved Ali Asshar Shah and 5 others. (1992 SCMR 241) while dealing with similar proposition held that the principle of merger would be applicable after examining numerous

judgements of the superior courts of the Sub Continent. Its para-9 being relevant is reproduced as under:-

tt9.These judicial announcements leave no room for doubt that for the purpose of execution the. rule of merger equally applies to the decree passed in exercise of revisional jurisdiction. This issue may also be examined from another angle. Take the case of a suit, which is dismissed by the trial Court and with this dismissal the First APPellate Court does not interfere, but it is decreed by the revisional Court. There should be no doubt that the decree of the Court of revision can well be executed. So far as executability of a final decree is concerned, does it make any difference, if the decree of the First Appellate Court is affirmed by the revisional Court? It will be sheer contradiction in terms if the decree is held enforceable when the suit is decreed for the first time bY the revisional Court, but regarded as a incapable of execution ifits \ decree is that of the affirmation / of the decree of the lower Court, and more so when Article 181, unlike Article 182, which has disappeared from the Statute Book, does not refer either to decree of the APPellate Court or revisional Court but anchors the commencement of Period of limitation on the accrual of right to apply and such right

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legitimately arises when revision against the decision of the lower Court is, one way or other, disposed of."

8.In that case, the period of limitation was allowed to be counted after the revision petition was disposed of questioning the appellate judgement and decree. The same view was also given by different High courts of the country.

Reference can be made to one of the case titled 65Mst. N Bibi and another V Mst. N oor Beslum" 11997 CLC 1479\. The judgements relied upon by the learned counsel for respondents are not relevant to the present controversy because in those cases, the question for consideration was i with regard to the starting point of limitation for the purpose of execution proceedings relating to the original decree. Even in one of the judgements relied upon by the learned counsel for respondents reported as 2013 -5 658 tiar dvs

Mst. Shamim Akhtar and while

distinguishing the case of Maulvi Abdul Qayum Supra, it was held as under:- "9.So far the question that the decree of the court of first instance is merged into the decree of Appellate Court which alone can be executed, it may be stated that in the case in hand the decree was passed by the High Court being appellate/revisional Court, therefore, the time would run from the date of passing of decree by the said Court. In the instant case the right was accrued in favour of the petitioner when the decree was passed by the High Court on 17-3-2003. There being nor statutory remedy of appeal or revision available against said decree and the only remedY available was filing a Petition for leave to appeal before this Court, which is a constitutional court, therefore, unless the operation of the imPugned decree is suspended or the petition is converted in to an appeal the petitioner cannot presume that the Period of Iimitation has been clogged. Mere fiting of petition before ( this court would not automatically enlarge the time of filing the execution application. Needless to mention here that in case relief is granted by this Court after allowing the aPPeal with leave of the Court then in the said eventuality the order of this Court would merge into order

of the lower forums as such the period of limitation would start from the order of this Court."

9.Thus in view of the pronouncements of the superior Courts, it follows that where any statutory remedy is availed against the original judgement and decree and any decision on such appeal or revision shall be termed as final judgemenVdecree for the purpose of execution. In the instant case too, the judgement and decree dated 29.4.2010 of the Referee court was questioned in Regular First Appeal under section 54 of the Land Acquisition Act, 1894 which was finally decided on 02.3.2023. The appeal is always considered as continuation of proceedings, AS such, the principle of merger is equally applicable to the appellate judgement and decree thereby fresh period of limitation starts for the execution of judgement and decree of the Appellate court.

10.It is pertinent to mention here that after the appellate judgement and decree, the

appellants have already submitted application for placing on record of the Executing Court the appellate judgement and decree for its execution, as such, the order of the learned Executing court dismissing the execution petition is legally not tenable. Appellants were having both the options either to have filed fresh Execution Petition after the appellate judgement and decree or to have placed on file the appellate decree even in that time barred Execution Petition and as such the execution proceedings/application submiued by the decree holder for placing on record the judgement of the Appellate court can also be considered as execution proceedings and the order impugned on this score alone is not tenable.

4 I 1. For the reasons stated above, this appeal is allowed. The execution proceedings shall be deemed as pending and the Executing Court is

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required to execute the Appellate and decree in accordance with law.

i Senior Puisne Judge Announced on;

I)ated. 06.05.2024, 'Afrir'