2011 M L D 1541
[Quetta]
Before Muhammad Noor Meskanzai, J
MARDMAN -E-MALEZAI TRIBE through Sohbat Khan and 3 others ---Petitioners
Versus
ABDUL SADIQ and 11 others ---Respondents
Civil Revision No.388 of 2007, decided on 20th June, 2011.
Civil Procedure Code (V of 1908) ---
----Ss. 47 & 48 ---Limitation Act (IX of 1908), S. 3 & Art. 181 ---Execution of decree ---
Limitation ---Scope ---Plea of decree -holder was that under Art. 181 of Limitation Act,
1908, his execution application was within limitation, as S.48 C.P.C. had prescribed a
period of six years ---Validity ---Decree -Bolder made first application 6n 16 -6-2006, for
execution of decree passed on 19 -3-2003, so the application filed by decree -holder was after
three years and three months o f the decree ---Application for execution of decree was filed
beyond the period of three years ---Provisions of S.48 C.P.C. contemplated fresh
application meaning thereby any application subsequent to the first one ---Application
for execution so filed by dec ree-holder was the ever first application, therefore,
applicability of S. 48 C.P.C. was beyond imagination ---Appeal or proceedings instituted
beyond prescribed period of limitation was liable to be dismissed as required by S. 3 of
Limitation Act, 1908 ---Execution application filed by decree -holder was rightly
dismissed by both the courts below ---Revision was dismissed in circumstances.
Mahboob Khan v. Hassan Khan Durrani PLD 1990 SC 778; 2007 SCMR 1929 and PLD
1985 SC 153 rel.
W.N. Kohli for Petitione rs.
Amanullah Batezai for Respondents.
Date of hearing: 8th April, 2011.
JUDGMENT
MUHAMMAD NOOR MESKANZAI, J . ---Through this petition, the petitioner has
called in question the legality, validity and propriety of the order dated,18 -10-2006 pas sed
by the Civil Judge, Chaman and order dated 23 -8-2007 passed by District Judge, Pishin
respectively.
2. Facts of the case as gathered from the record are that Civil Suit No.57 of 2001 was filed
in the court of Civil Judge, Chaman which was dismissed o n 29-6-2002. Feeling dissatisfied
with the judgment passed by Civil Judge, Chaman Civil Appeal No.4 of 2007 was preferred
before the District Judge, Pishin. The District Judge, Pishin accepted the appeal, set aside
the judgment passed by Civil Judge, Chama n and passed a decree in favour of plaintiffs on
23-8-2007. The petitioners filed submitted execution Application No.1 of 2006 on 16 -6-
2006. The respondents filed an objection petition as contemplated by section 47 of Civil
Procedure Code. The application was resisted on the point of limitation. Relevant portion of
the same is reproduced herein below: -
"(6). That. the decree holder filed above titled execution application after the lapse
of 3 years 3 months which is hopelessly time barred thus on this poi nt of law the
execution application filed by the decree holder may please be dismissed
straightaway with special cost."
3. The learned executing court after hearing the parties dismissed the execution application
vide order dated 18 -10-200.6 by holding t hat the application is barred by time in view of
provisions of Article 181 of the Limitation Act. Feeling dissatisfied with the order dated
18-10-2006 petitioners filed Civil Appeal No.4 of 2007 before the District Judge, Pishin.
The learned District Judge , Pishin after hearing the parties also concluded that the
application filed by the petitioners was rightly dismissed, hence appeal too was dismissed.
Feeling dissatisfied and aggrieved with the orders passed by the lower forums this petition
has been file d in this Court.
4. Learned counsel for the petitioners submitted that both the courts below have committed
material irregularity by dismissing the execution application at the strength of provisions of
Article 181 of Limitation Act. According to the lea rned counsel, the provisions of Article
181 of the Limitation Act will apply where there is no other period of limitation is
prescribed for any the purpose. Since section 48 of the C.P.C. itself prescribes a period of six
years for the execution of the dec rees passed by Civil Court, the impugned orders are liable
to be set aside.
5. Learned counsel for the respondents vehemently opposed the contentions so put forth by
the counsel for petitioners. It was submitted that the application was filed beyond the period
prescribed for filing of execution application under Article 181 of the Limitation Act.
Learned counsel for the respondents maintained that provisions of section 48 of the C.P.C.
come into picture after the disposal of first execution application. S ince petitioners did not
propose to file any execution application with three years, therefore, the application so filed
was the first application and rightly dismissed by the Courts below. Learned counsel to
substantiate his view point placed reliance upo n the judgment of Hon'ble apex Court i.e.
PLD 1990 SC page 778.
6. I have heard the learned counsel for the parties and have gone through the record
minutely. A meaningful perusal of the Execution Application No.1 of 2006 reflects that it
was the first a pplication made for execution of decree passed by Additional District Judge,
Pishin on 19 -3-2003. This application was admittedly filed on 16 -6-2006, so application
was filed exactly after three years and three months of the decree. The bare perusal of dat e
of application leaves no room for doubt that the application was filed beyond the period of
three years. The contentions of learned counsel for the petitioners that provisions of section
48 of the C.P.C. were applicable find no legal force behind it. Und oubtly, section 48 of the
C.P.C. contemplates the fresh application meaning thereby any application subsequent to
the first one. Since application for execution so filed was the ever first application,
therefore, applicability of section 48 of the C.P.C. - is beyond imagination. By holding the
view, I am supported by the dictum laid down by the Apex Court reported in PLD 1990 SC
page 778 (titled as Mahboob Khan v. Hassan Khan Durrani relevant at page 786), wherein
it has been held that:
"Construed in this light, and reading the two provisions together, it would appear
that the effect of the amendment made by the Law Reforms Ordinance, 1972, is
that the first application for the execution of the decree of a Civil Court would be
governed by the residuary Art icle 181 prescribing a period of three years and
since any subsequent or fresh application for execution would be governed by
section 48, C.P.C., it would be out of the purview of Article 181 on its express
terms. In some of the Indian decisions the expres sion 'fresh application" has been
so construed to mean application for execution after the disposal of the first
execution application. See Yadorao Wasudeorao Pathak v. Govindrao Ramji Pant
AIR 1939 Nag. 245, Lekshnii Amma Kochukutty Amma and another v. Ra man
Pillai Kumara Pillai and others AIR 1952 Travancore -Cochin 268 and Venlappa
and others v. Lakshrnikant Rao AIR 1956 Hyd. 7."
Similarly, the same view finds support from the judgment reported in 2007 SCMR page
1929, wherein it was held as under: --
"We have heard the learned counsel for the petitioner at some length and have
also perused the available record. We find that the controversy involved in the
present case has already been set at rest by this Court in the case of Mahboob Khan
v. Hassan Khan Durrani PLD 1990 SC 778, wherein it was held that for making
first application for execution of a decree a period of three years was provided in
terms of Article 181 of the Limitation Act and that the provisions of section 48,
C.P.C. could be availed only in the case of fresh application, once the first
application had been disposed of In our view, the impugned order of the High
Court is in conformity with the law laid down by this Court to which no
exception can be taken."
Likewise in the judgment report ed in PLD 1985 SC page 153, it has been held as under: --
"The words of section 3 of the Limitation Act are mandatory in nature in that every
suit instituted after the period of limitation shall, subject to the provision of sections 4
to 25 of that Act, b e dismissed although limitation has not been set up as a defence. If
from the statement in the plaint the suit appears to be barred by limitation, the plaint
shall have to be rejected also under Order VII, Rule 11, C.P.C. The law, therefore,
does not leave the matter of limitation to the pleadings of the parties. It imposes a duty
in this regard upon the Court itself. There is a chain of authority, and a detailed
discussion of the same is not necessary, to lay down that limitation being a matter of
statute and the provisions being mandatory, it cannot be waived and even if waived
can be taken up by the party waiving it and by the Courts themselves. In Sitharama v.
Krishnaswami 1LR 38 Mad. 374, where the defendants had pleaded the bar of
limitation but the tr ial Court had held that they having admitted their liability for the
amount in resisting the plaintiff's application in a previous suit, were estopped on
general principles of law and equity from pleading that the suit was barred by
limitation. It was rule d that the defendants were not estopped and it was observed that
"the bar of limitation cannot be waived, and suits and other proceedings must be
dismissed if brought after the prescribed period of limitation" and that "the Judge
cannot, on equitable groun ds, enlarge the time allowed by the law, postpone its
operation, or introduce exceptions not recognized by it". The same Court in a
subsequent case, Remamurthy v. Gopayya ILR 40 Mad. 701, reiterated that the
parties cannot estop themselves from pleading th e provisions of the statute of
limitation. The Lahore High Court also took a similar 'view in Kundo Mal v. Firm
Daulat Ram AIR 1940 Lah. 75, and held that "there is abundant authority in support
of the proposition that objections regarding limitation canno t be waived and that even
if they are waived they can be taken up again by the parties waiving them or by the
Courts themselves".
7. At the strength of citations referred to hereinabove, the law stands settled on the subject
that any application, appeal or proceeding instituted beyond the prescribed period of
limitation is/are liable to be dismissed as required by Article 3 of Limitation Act.
In the light of above discussion, I have no hesitation in my mind in holding that execution
application was righ tly dismissed by both the courts below, thus finding no merit in the
petition same is dismissed with no orders as to costs.
M.H./53/Q Revision 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,
let us know.