2011 C L C 615
[Quetta]
Before Mrs. Syeda Tahira Safdar, J
NAZAR MUHAMMAD ----Petitioner
Versus
NIAZ MUHAMMAD and 2 others ----Respondents
Civil Revision No.398 of 2010, decided on 3rd January, 2011.
Civil Procedure Co de (V of 1908) ---
----S. 48, Part II [Ss. 36 to 74], O. XX, R.14(1) & O . X X I - - -L i m i t a t i o n Act (IX of
1908), Art.181 ---Suit for pre -emption ---Trial Court decreed the suit ---Appellate Court upheld
the order of Trial Court directing plaintiffs to pay the sal e price as per market value ---
Plaintiff challenged appellate court's order in revision which was dismissed ---Supreme Court
allowed plaintiff's petition directing Additional District Judge to specify the amount of suit
property and time of payment ---After a ssessing the market value of the property, Additional
District Judge ordered plaintiff to pay the purchase money ---Defendant assailed the
Additional District Judge's order specifying the purchase money before High Court which
suspended the impugned order ---Executing court, however, entertained plaintiff's application
for execution of decree directing Revenue Authorities to effect mutation entries in favour of
plaintiffs.. Defendant's appeal against order of the executing court was dismissed by the
Appellate Court ---Defendant contended that the executing court could not entertain the
application for execution while the matter of assessment of sale price was still pending
before the High Court and that the application for execution was barred by limitation ---
Validity ---Courts below failed to appreciate the importance of issue of limitation which was
significant to the maintainability of the application ---Section 48, C.P.C. and Art.181 of the
Limitation Act, 1908 had to be read together ---Under provisions of S.48, C.P.C. and
Art.181 of the Limitation Act, 1908, a decree -holder had to approach the court for
execution of decree within three years from the time when right to apply had accrued ---Any
number of fresh applications for execution of decree could be filed within 6 years
whereafter no fresh application was maintainable but for the exceptions provided in S.48,
C.P.C. ---Trial Court failed to comply with the provisions of O.XX, R.14(1), C.P.C. which
provided for dismissal of suit for pre -emption where plaintiff failed to pay the purchase
money ---Executing court passed order to effect mutation entries in favour of
plaintiffs/decree holders while Additional District Judge's order specifying the amount of
purchase money was still pending before High Court ---Appella te Court committed error by
upholding the order of executing court while payment of entire purchase money had yet to
be ascertained ---Executing court had to adopt the procedure laid down by O.XXI, C.P.C.
and Part II, C.P.C. which comprised Ss. 36 to 74 ---In suit for pre -emption, title to suit
property would accrue in favour of plaintiff only after payment of purchase money as
assessed by the court ---Issue of assessment of purchase money being still pending before
High Court, therefore, decree, to the extent of purchase money had not attained finality ---
Right to apply for execution had not accrued to plaintiffs/decree holders ---Courts below
committed error by entertaining application for execution ---Impugned order of courts below
were set aside ---Petition was accepted in circumstances.
Syed Ayaz Zahoor for Petitioners.
Mujeeb Ahmed Hashmi for Respondents.
Date of hearing: 17th August, 2010.
JUDGMENT
MRS. JUSTICE SYEDA TAHIRA SAFDAR, J .--- It is case of the petitioner that a suit
was filed by resp ondents against them thereby seeking possession of property in question
through pre -emption, on conclusion of trial the suit stand decreed in favour of respondents/
plaintiffs by Senior Civil Judge, Pishin through judgment dated 30 -10-2004. Feeling
aggriev ed of the same appeal was preferred by the petitioners, which was decided through
order dated 30 -3-2005 by Additional District Judge, Pishin. The learned appellate court while
upholding the order of the trial court directed the respondents/ plaintiffs to p ay sale price as
per market value. It is further case of the petitioners that the respondents/plaintiffs feeling
aggrieved of order of the appellate court approached this court, but their revision petition was
dismissed through order dated 13 -10-2006. Stil l feeling aggrieved, they
(respondents/plaintiffs) approached Honorable Supreme Court while assailing order dated -
13-10-2006 of this court. The honorable Supreme Court through order dated 22 -2-2007,
while allowing the petition, remanded the matter to the court of Additional District Judge,
Pishin with direction to specify the amount of the pre -emption and the time within which it is
to be deposited. In compliance thereof learned Additional District Judge, Pishin while
assessing the market value of property in question at the rate of Rs.100,000 per acre through
order dated 27 -8-2008 ordered for payment of Rs.300,000 as purchase money. The
petitioners still aggrieved of the order, challenged its validity by way of filing Revision
Petition No.299 of 2008 befor e this court, which is asserted to be pending for decision.
Further, the operation of impugned order was suspended till next date of hearing through
order dated 24 -12-2008 by this court. It is their case that as during pendency of mentioned
revision petiti on the order of suspension was not extended, therefore, the proceedings
commenced, while the Executing Court through order dated 27 -5-2010 made direction to the
Revenue Authorities to effect the mutation entries in favour of respondents, and also to hand
over possession of the suit property to respondents/decree -holders. Feeling aggrieved' of the
order they (petitioners) preferred appeal, which was dismissed through order dated 29 -7-
2010. Still aggrieved of the order the petitioners preferred instant petiti on with averments that
both the orders of Senior Civil Judge, Pishin, being executing court, and Additional District
Judge, Pishin being appellate court, dated 27 -5-2010 and 29 -7-2010, are contrary to law and
facts. Further, as the petition in respect of a ssessment of sale price is subjudice before this
court, therefore, the executing court acted illegally, thus the impugned order is liable to be set
aside. It is further their contention that the application for execution of decree was admittedly
filed beyo nd period of limitation, thus barred by time, liable to be dismissed. Despite the fact
a specific objection was taken, but the courts below failed to decide the issue in accordance
with law. It is further contended that until and unless the price of the pr operty in question is
determined finally the impugned orders so made amounts to a step, to frustrate the
proceedings pending before this court. The petitioners contended that as the matter is still
subjudice and it is yet to be determined that what would b e the value of the property and its
sale price, therefore, there was no reason for the executing court to pass the impugned order.
The petitioners prayed for setting aside of impugned orders, thereby the application filed for
execution of decree be dismiss ed.
Learned counsel for the parties are heard, while record is perused. It is apparent from record
that the suit filed by the respondents/ plaintiffs against petitioners/defendants was decreed in
their favour through judgment dated 30 -10-2004, this order was challenged by the
petitioners/defendants before the appellate court, which was decided through order dated 30 -
3-2005. Though the petitioners/judgment -debtors filed petition before this court seeking
revision of the appellate order, which was decided t hrough order dated 13 -10-2006, but
perusal of this order reveals that the petitioners/judgment debtors did not challenge the
judgment and decree as a whole, rather they only questioned the determination of sale
consideration at market rate and its payment. The honourable Supreme Court of Pakistan
through order dated 22 -2-2007 remanded the case to Additional District Judge, Pishin for
specifying the amount of pre -emption money and time within which it is to be deposited. In
compliance thereof, learned Additi onal District Judge, Pishin through order dated 27 -8-2008
assessed the pre -emption money as Rs.300,000 and on assertion made by respondents
observed that as an amount of Rs.250,000 has already been deposited in court, thus directed
that the remaining amoun t be deposited within a period of one month from this order. This
order was challenged by the petitioners by way of filing Revision Petition No.299 of 2008,
which is still pending before this court.
The petitioners through instant petition challenged ord er of Senior Civil Judge, Pishin made
on 27 -5-2010 whereby the application filed by the respondents/decree -holders for execution
of decree has been accepted, thereby it has been ordered that the concerned Revenue
Authorities mutate the suit property in nam e of decree -holders/respondents and also hand
over possession of the property to them (decree -holders). The petitioners are further
aggrieved of order of the appellate court dated 29 -7-2010, whereby their appeal has been
dismissed and order of trial court is upheld. Being unsatisfied with both the orders instant
petition has been filed thereby seeking setting aside of both these orders and dismissal of
execution application.
The perusal of impugned order reveals that the trial court while entertaining th e application
filed for execution of decree dated 30 -10-2004, after over ruling the objection raised by the
judgment debtors/ present petitioners to the effect of application being filed beyond provided
period, thus time barred, accepted the application an d directed the concerned Revenue
Authorities to effect mutation in favour of decree holders/ present respondents and also to
hand over possession of property in question to them and with this direction the execution
application is consigned to record. The appellate court through order dated 29 -7-2010 upheld
this order, thereby hold that though the application for execution of decree is filed beyond
provided period, but as per decisions of Superior courts the cases are to be decided on merits
and should not defeat on technicalities.
A specific objection was taken by the judgment debtors/ petitioners in respect of
maintainability of application filed for execution of decree to the effect that the application
has been filed beyond period of limitation. The tr ial court failed to give any finding on this
point, while the appellate court only observed that technicalities be avoided. Both the courts
below failed to consider the importance of issue pertaining to limitation, as it goes to very
root of the case, it d ecides fate of the application being maintainable, or otherwise.
Section 48, C.P.C. provides limit of time for execution of a decree, it states 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 made, 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 date of the decree sought to be executed; or
(b) where th e 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 execut e the decree.
(2) Nothing in this section shall 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 fo rce, 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 (IX of 1908)."
This section cannot be read in isolation, it is to be read with Article 181 of Limitation Act,
1908, which states as under:
"181 Application 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
right to apply
accrues
It is to be noted that there is no time limit provided specifically for filing of application
seeking execution of decree in Limitation Act 1908 after deletion of Article -182 of the Ac t by
Law Reforms Ordinance, 1972. Thus in the circumstances reliance can safely be made on
Article 181 Limitation Act, 1908, which provides a period of three years beginning from the
time when right to apply accrues. It is further to be noted that this Art icle specifically made
reference to Section 48 C.P.C., where time limit is provided for a period of six years. But it is
to be noted that section 48, C.P.C. only describes time limit for making an order on any fresh
application presented after expiry of a period of six years. This section is silent about the time
limit for filing of very first application seeking execution of a decree. Therefore, in the
circumstances after deletion of Article 182 Limitation Act, section 48, C.P.C. and Article 181
Limitation Act are to be read together. Keeping in view both these provisions of law, it can
safely be held that a person/decree -holder seeking execution of a decree has to approach the
court for said purpose within a period of three years at first instance, this pe riod is to be
counted from the date when the right to apply accrues thereafter, any number of fresh
applications can be filed for execution of a decree within a period of six years, whereafter, no
fresh application for the purpose is maintainable, but with the exceptions provided therein i.e.
section 48, C.P.C.
In case in hand though an objection is raised by judgment debtors/ petitioners on
maintainability of execution application being filed beyond provided period, but the learned
counsel appearing on t heir behalf failed to address the court on this point. Apart from the
same while deciding issue of limitation the nature of the decree is required to be seen, as the
occurrence of right to apply depends on it, as specific time is provided in each case. It is
apparent from record that the respondents/ plaintiffs filed suit seeking possession through
pre-emption, which was decreed in their favour. In the circumstances Rule 14 of Order XX,
C.P.C. shall be applicable, while sub -rule(1) of Rule 14 is relevant, w hich states as under: --
"Order XX, Rule -14(1) Decree in pre -emption suit .--- (1) Where the Court decrees a
claim to pre -emption in respect of a particular sale of property and the purchase
money has not been paid into court, the decree shall --
(a) specify a day on or before which the purchase money shall be so paid, and
(b) direct that on payment into court of such purchase money, together within the costs of
(if any) decreed against the plaintiff on or before the day referred to in clause (a), the
defendant shall deliver possession of the property to the plaintiff whose title thereto
shall be deemed to have accrued from the date of such payment, but that, if the
purchase -money and the costs (if any) are not so paid, the suit shall be dismissed with
costs."
Keeping in view the above Rule the title of the plaintiff is deemed to have accrued from the
date, when the payment of purchase money has been made by him (plaintiff), consequence of
failure on his part is described as dismissal of suit with costs. In present case initially the trial
court while decreeing the suit in favour of respondents/plaintiffs failed to comply with this
provision of law. For the very first time the honorable Supreme Court of Pakistan through
order dated 22 -2-2007 directed Addi tional District Judge, Pishin to specify the amount of pre -
emption money and time period within which it is to be deposited. In compliance thereof
order was made by the court on 27 -8-2008, this order is challenged by petitioners/judgment -
debtors, which is still pending before this court. Meanwhile, the court on execution
application, filed by the respondents/decree -holders, ordered for effecting of mutation entry
in favour of respondents/decree -holders and also handing over the possession to them. The
appel late court also upheld the order. Both these orders are presently under question before
this court.
The perusal of both the impugned orders reveals that the courts below failed to observe the
relevant provisions of law, thus made an error. It is apparent from record that during course
of decision this fact was brought into notice of Additional District Judge, Pishin that out of
assessed purchase amount i.e. Rs.300,000 an amount of Rs.250,000 has already been
deposited in court, while remaining amount shal l be paid within one month, this fact is
mentioned in order dated 27 -5-2008. This order is subjudice before this court. Apart from the
same, nothing has been placed on record from which it can be ascertained that the purchase
amount as assessed by the cour t has been paid in full by the respondents/decree -holders,
whereby the title of ownership devolves upon them, which entitled them to obtain possession
and effecting of entry in their favour in relevant record of rights in respect of suit property.
The tria l court instead of looking into this aspect of the case simply accepted the execution
application and issued directions to Revenue Authorities to same effect. The Executing Court
made a serious error while acting as such. The court before which application for execution
of a decree is filed have to adopt the procedure as provided in Order XXI, C.P.C. and also to
observe the provisions contained in Part -II, C.P.C. consisting of section 36 to section 74.
There is no concept of accepting an execution applicati on, rather the court before which an
application has been filed for the purpose, has to adopt the procedure and make efforts for
execution of decree till its satisfaction.
As far as decree in a pre -emption suit is concerned, execution proceedings are to be made in
accordance with above provisions along with Rule -14 of Order XX, C.P.C. as mentioned
hereinabove.
In view of above discussion as in pre -emption suit the title to the suit property accrues in
favour of a plaintiff only on payment of purchase mo ney as assessed by the court, whereafter,
possession can be delivered and title can be transferred in record of rights in his favour.
Contrary to the same in present case the matter in respect of purchase money is pending for
adjudication before this court , which is yet to be decided. The decree till present has not
attained finality to the extent of purchase money. Thus in the circumstances the right to apply
the court for execution of decree has not accrued to the respondents/decree -holders. Both the
courts below made an error while entertaining the execution application, which was
otherwise not maintainable being filed pre -maturely.
In view of above discussion while accepting the petition impugned orders dated 29 -7-2010 of
Additional District Judge, Pis hin and 27 -5-2010 of Senior Civil Judge, Pishin are hereby set
aside. The execution application filed by respondents/decree -holders be kept remain pending
with no further orders till finalization of the matter. It is further observed that during
pendency o f this petition this fact is not disclosed by either of the parties, that what was the
fate of directions issued by the Senior Civil Judge, Pishin, either it has been implemented or
otherwise. Thus in circumstances, in order to avoid further inconvenience and multiplicity of
litigation between the parties, it deemed appropriate to direct the parties that no third party
right be created in suit property while the present position of title and possession shall remain
intact till finalization of the matter.
No order as to costs.
A.R.K./4/Q Petition accepted.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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