Manzoor Ellahi Qureshi vs Muhammad Bilal Abbas

2012 C L C 1227

[Peshawar]

Before Syed Sajjad Hassan Shah and Qaiser Rashid Khan, JJ

MANZOOR ELLAHI QURESHI through Legal Heirs----Petitioner

Versus

MUHAMMAD BILAL ABBAS and 2 others----Respondents

Writ Petition No.237 of 2010, decided on 15th December, 2011.

Limitation Act (IX of 1908)---

----Art. 181---Civil Procedure Code (V of 1908), S.48---Constitution of Pakistan, Art.199--- Constitutional petition---Second application for execution of decree---Limitation---Scope--- "Fresh application" as mentioned in S.48, C.P.C.---Connotation---Plaintiff (respondent) had filed suit for recovery of amount which was decreed ex parte in his favour but application for execution of the decree was filed after a period of four years, six months and twenty-four days, which execution application was dismissed---Plaintiff filed second application for execution of the said decree against which defendant (petitioner) filed a rejection application with the contention that same was time-barred, but both the courts below dismissed such application of the defendant---Validity---Application for execution of decree of civil court was governed by Article 181 of the Limitation Act 1908, prescribing a period of three years and any subsequent or fresh application for execution was governed by the six years time limit prescribed by section 48, C.P.C---Expression "fresh application" had been construed to mean application for execution after the disposal of the first execution application---Plaintiff had filed application for execution of ex parte decree after a long and unexplained period of more than four years, six months and twenty-four days, which application was barred by time and both the courts below had wrongly stretched the law of limitation in favour of the plaintiff---No legal embargo prevented the plaintiff from filing execution application before the executing court, even when defendant unsuccessfully tried to set aside the ex parte decree passed in favour of the plaintiff---Law favoured the vigilant and not the indolent---Plaintiff was bound under the law to approach the Trial Court within three years for execution of the ex parte decree---Conduct of plaintiff in remaining silent for a long, inordinate and unexplained period was by itself sufficient to deprive him from the fruits of the ex parte decree in his favour---Both the courts below had illegally accepted the time-barred application of the plaintiff for execution of the ex parte decree--- Constitutional petition was accepted, impugned orders of both the courts below were set aside and second execution application of the plaintiff was dismissed on the ground of limitation.

Mehboob Khan v. Hassan Khan Durrani PLD 1990 SC 778 fol.

Muhammad Imran Khan and Miss Farhana Jabeen for Petitioner.

Fazlur Rehman for Respondent.

Date of hearing: 15th December, 2011.

JUDGMENT

QAISER RASHID KHAN J.--- Through the instant constitutional petition filed under Article 199 of the Constitution of Islamic Republic of Pakistan 1973, the petitioner, namely, Manzoor Elahi Qureshi (now dead and represented through his legal heirs), has called in question the vires of orders dated 10-11-2009 and 4-3-2010 passed by the learned Civil Judge-III D.I. Khan and Additional District Judge-VI D.I. Khan respectively, whereby execution petition of the respondent Muhammad Bilal was accepted despite being time-barred.

2.Briefly stated facts of the case leading to the instant petition are that the respondent No.1/plaintiff Muhammad Bilal had filed a suit for recovery of Rs.3,48,145/- against the petitioner Manzoor Elahi Qureshi which was decreed ex parte vide judgment and decree dated 25-9-1998. Thereafter, the respondent/decree-holder remained in deep slumber for more than four years, six months and twenty four days, till he applied for execution of the decree on 18-4- 2003 but it was dismissed in default on 30-3-2005. The respondent/decree-holder filed another application for execution of the ex parte decree on 27-6-2005. In the meantime, on coming to know about the ex parte decree, the petitioner herein on 12-10-2005 applied for setting aside the ex parte decree but it was dismissed by the trial court on 15-2-2006 on the ground of limitation which was maintained in appeal by the learned Additional District Judge-I D.I. Khan vide judgment and decree dated 5-4-2006 and also in revision by this court vide judgment dated

3.On 13-5-2006, the petitioner applied for rejection of the execution petition of the respondent being hopelessly time-barred which plea was dismissed by both the courts below vide orders which are now under challenge in this petition.

4.We have carefully gone through the record of the case and considered the arguments of the learned counsel for the parties.

5.Before embarking upon the controversy between the parties, it would be of value to refer to the law on the subject as expounded by the august Supreme Court reported in PLD 1990 Supreme Court 778 titled Mehboob Khan v. Hassan Khan Durrani wherein it has been held that the effect of the amendment made by the Law Reforms Ordinance, 1972 is that the first

application for the execution of a decree of civil court would be governed by the residuary Article 181 of the Limitation Act, 1908 prescribing a period of three years and any subsequent or fresh application for execution would be governed by the six years time limit prescribed by section 48, C.P.C. The expression of "fresh application" has been construed to mean application for execution after the disposal of the first execution application. Thus the first application for execution having been submitted beyond the period of limitation prescribed by Article 181 of the Limitation Act, the same was out of time and held to be time-barred.

6.Now coming to the facts of the matter in hand. Admittedly, the decree-holder had remained mum for quite a long and unexplained period of more than four years, six months and twenty four days after passing of the ex parte decree in his favour when he applied for its execution. Thus his such application was hopelessly barred by time and both the courts below have wrongly stretched the law of limitation in his favour. There was no legal embargo on the respondent not to file any execution petition before the executing court in time even when the petitioner was trying his luck before different courts, albeit unsuccessfully, to set aside the ex parte decree passed against him way back on 25-9-1998. Law favours the vigilant and not the indolent. When the ex parte decree was passed in favour of the respondent, he was bound under the law to have approached the trial court for its execution within three years. His conduct of remaining silent for such a long, inordinate and unexplained period of over four and a half years by itself is sufficient to deprive him from the fruits of the ex parte decree in his favour.

7.The result of the above discussion is that both the courts below illegally accepted the time-barred application of the respondent for execution of the decree.

8.As a result, this petition is accepted, the impugned orders of the courts below are set aside and the execution petition of the respondent is dismissed on the ground of limitation alone.

M.W.A./160/P Petition accepted.