2 0 10 C L C 1 26 1 [Quetta] Time limit for filing of fresh application.

Before Mrs. Syeda Tahira Safdar, J

NASIR HAYAT---Appellant Versus Syed QAMAR RAZA RIZVI---Respondent

Civil Misc. Appeal 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---Limitation--- 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 execution 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 objection of judgmentdebtor
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 the 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 him---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
grounds 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 for 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 dismissed 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 material 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 made 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 merely 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 documents 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
during 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 performance 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 appellant/
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, Quetta 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 impugned 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 in 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 would 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 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 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 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 force, 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). 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 respect 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 in 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 fresh 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 refers 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 application 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, read 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 be 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 this 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 view 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.