2 0 10 C L C 1 26 1
[Quetta]
Before Mrs. Syeda Tahira Safdar, J
NASIR HAYAT ---Appellant
Versus
Syed QAMAR RAZA RIZVI ---Respondent
Civil Misc. Ap peal No. 13 of 2007, decided on 10th March, 2010.
Civil Procedure Code (V of 1908) ---
----O. XXI, R.10, Ss.48 & 100 ---Specific Relief Act (I of 1877), Ss. 8 & 12---
Limitation Act (IX of 1908), Art.181 ---Execution of decree ---Application for ---Limitatio n---
Decree -holder whose suit for specific performance of agreement, possession and recovery
was decreed, filed application for execution of decree, which was dismissed being barred by
time ---Decree -holder had claimed that earlier he filed application for e xecution of
decree in time, but same having been dismissed in default, he had again filed application
for execution of decree, which had been dismissed by the Executing Court without
appreciating the facts and circumstances of the case and accepting the ob jection of judgment -
debtor with regard to limitation and that first application for execution of decree was to be
filed within a period of three years and once it was filed in time, thereafter any number of
applications for execution could be made within t he provided period of six years ---
Validity ---Despite having full opportunity, decree -holder had failed to prove any such
application before the court, he had even failed to mention the exact date of submission of
said first execution application made by hi m---Decree -holder had not asserted that due to
fraud or misrepresentation he was restrained from filing of such application; or there
existed such circumstances due to which he was unable to file application for execution of
decree in time ---No such ground s were urged by the decree -holder, on basis of which delay
occurred in filing application could be condoned ---Execution application was rightly
dismissed, in circumstances.
Mahboob Khan v. Hassan Khan Durrani PLD 1990 SC 779 ref.
Tahir Ali Baloch fo r Appellant.
Nemo for Respondent.
Date of hearing: 29th October, 2009.
JUDGMENT
MRS. SYEDA TAHIRA SAFDAR, J. ---It is contention of the appellant that the suit filed
by him against respondent for specific performance of agreements, possession and recovery,
his claim was admitted by the respondent, while the suit was decreed in his favour through
judgment made on 26 -10-2002 by Senior Civil Judge -II, Quetta. Whereafter, he filed an
application for execution of decree, which was dismissed in default. Thereafter, he again filed
an application for execution of decree, which was contested by the respondent, who filed
objections on the same. The trial Court without appreciating the facts and circumstances of
the case accepted the objection thereby dismisse d the application through order made on 29 -
8-2007. The appellant preferred present appeal with averments that the impugned order is
contrary to law and facts; the execution application was not barred by time, while the decree
was made on consent, the mater ial facts are not considered, while application was decided
on technical grounds. He has prayed for setting aside of impugned order with direction to
the executing Court to execute the decree in accordance with law.
The appellant is aggrieved of order ma de on 29 -8-2007, whereby the application filed by
him for execution of decree dated 20 -10-2002 was dismissed being time barred. As per
appellant the decree was a consent decree, while his claim was admitted by the respondent as
such he cannot be deprived m erely on technical grounds; even otherwise the execution
application was not barred by time.
The perusal of the record reveals that the present appeal was kept pending for quite sonic
time as the counsel for the appellant seeks time to file certain docum ents in order to meet the
point of limitation. The appellant placed certain. Documents on record through application
C.M.A No.634 of 2008 on 12 -6-2008. Whereafter, counsel for the appellant was heard. The
only contention raised by the learned counsel durin g course of arguments was that the first
application for execution of decree was tiled within time; therefore, subsequent
application cannot be treated as time barred.
The perusal of the record reveals that the appellant filed a suit seeking specific per formance
of agreements, possession and recovery. The respondent in his written statement did not deny
the claim of the appellant/ plaintiff, rather sought some time for payment of amount or
in alternate effecting transfer of house in favour of the appellan t/ plaintiff. As there was
admission from the other side, therefore, the trial Court decided the suit through judgment
made on 26 -10-2002 in terms:
"The suit filed by plaintiff is accepted and decreed in his favour with the direction to
the defendant to make payment of Rs.8,96,000 according to agreements dated 21 -5-
2002, 25-5-2002 and 11 -7-2002, respectively, in default the defendant will
transfer his house bearing Municipal No.4 -37/21 falling under khasra No.422, situated
in Ward No.31, Kaikabad roads, Q uetta in the name of plaintiff along with
possession."
As per appellant he filed application for execution of decree, which was dismissed in default,
whereafter, he filed second application, which was dismissed by the trial/ executing court
through impug ned order. The appellant has not mentioned the date when said first application
was filed. Though he has filed a copy of an application for execution bearing year 2006,
while at S.No.5 it has been mentioned that application was filed on 15 -10-2004, but the same
was dismissed in default. But contrary to the same in the impugned order the trial court
reproduced the contents of execution application pending there for adjudication, as per the
same at S.No.5 facts about previous application, if any with date and result, it has been
mentioned as Nil. It is further apparent from impugned order that application for execution of
decree was filed on 10 -7-2006. There is clear contradiction between contents of above
mentioned copy of application and contents contained i n the impugned judgment. The
appellant was given several opportunities, but he failed to file copy of first application
asserted to be filed by him in 2004 for execution of decree, which was asserted to be
dismissed in default. Less reliance can be placed on copy of execution application, as it
is also not a certified copy.
The point which is required to be considered at this stage is that what is the provided
period for filing of application for execution of decree and what provision of law the same
woul d govern. Section 48, C.P.C. provides limit of time for execution of a decree. Section 48,
C.P.C. speaks as under:
"48. Execution barred in certain cases . (1) Where an application to execute a decree
not being a decree granting an injunction has been mad e, no order for the execution of
the same decree shall be made upon any fresh application presented after the
expiration of six years from ---
(a) the dale 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 s hall be deemed
(a) to preclude the Court from 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 s ome 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 (IX of 1908).
The time provided therein is six years for filing of fresh application seeking execution of a
decree. Subsection (2) of this section provides the instances where an application filed
beyond provided period can be entertained. While Article 181 of Limitation Act provides a
time limit of three years in res pect of application for which no period of limitation is provided
elsewhere in the said schedule or by Section 48 C.P.C. In view of these two provisions period
of three years and six years are provided for filing of application execution application.
But i n section 48, C.P.C. term fresh application is used, which requires consideration. Mere
plainly reading this section it appears that there is no distinction of very first application
for execution of a decree made in favour of a party and about filing of f resh application for
said purpose. The manner and procedure in which a decree is required to be executed and
application is required to be made is provided in Order XXI, C.P.C. But there exists no such
provision in said Order, nor any other section of C.P.C. except section 48, C.P.C., which
provides any time limit for filing application of such a nature. While as far as Limitation Act
is concerned, after deletion of Article 182 of the same there is no specific Article, which
provides any specific period for filing application for execution of a decree. Thus in the
circumstances the only Article which can safely be made applicable in the matter would be
Article 181 of Limitation Act, which speaks as under:
Description of application Period of limitation Time from which
period begins to run
181. Applications for which no period of
limitation is provided elsewhere in this
schedule or by Section 48 of the Code of
Civil Procedure, 1908. Three years When the right to
apply accrues.
Though this Article also r efers to section 48, C.P.C., but with this condition that for any other
application for which no limitation is provided therein the time will be three years from the
date when the right to apply accrues. As such safely arriving to the conclusion that this
Article will be applicable, as such the very first application is required to be filed within
a period of three years, counted from the date when the right to apply accrues. On the other
hand section 48, C.P.C. provides a period of six years as outer limit after expiry of which no
fresh application for execution of a decree can be entertained, but within this period any
number of applications can be made seeking execution of decree, benefiting therewith the
exceptions provided therein. The Honorable Supreme Court of Pakistan has discussed this
point in detail in case tilted as Mahboob Khan Vs. Hassan Khan Durrani (PLD 1990 SC
779) and comes to the conclusion: --
"The position that emerges from the above discussion is that, as already stated, the
first appli cation 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, r ead along with Articles 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 for 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 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 b e 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 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."
Thus in view of the same the first application for execution of decree is to be filed
within a period of three years and once it is made in time, thereafter, any number of
applications for execution can be made within the provided period of six years. In
present case though the appellant has asserted that he previously filed an application,
which was dismissed in default, whereafter, he filed second application, which was also
dismissed by the court holding to be time barred. This order is presently impugned
before thi s court. Despite having full opportunity the appellant failed to produce any
such application before this court. He even failed to mention the exact date of
submission of first execution application made by him. Though he has filed the
agreements on basis of which the Suit was decreed in his favour. But these agreements
do not help him in extension of time, as these agreements were executed in year 2002
before passing of the decree. While they contain no such condition which was required
to be fulfilled in years later than 2002 and on non -compliance of which the time has to
be computed for execution of decree from such date. There is also no assertion from the
side of the appellant that due to fraud or misrepresentation he was restrained from filing
of such application or there exists such circumstances due to which he was unable to file
application for execution of decree in time. No such grounds are urged by the appellant,
on basis of which delay occurred in filing of the application can be condoned.
In v iew of above discussion there are no merits in present appeal, which is hereby
dismissed.
No order as to costs.
H.B.T./38/Q Appeal dismissed.This judgment is reproduced from a publicly available source for informational purposes and does not constitute legal advice. If you believe this listing contains an error,
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