Execution meaning in law | Execution Case Laws | petition will be time bard if High court not stay in appeal
Execution petition meaning in law
In legal terms, "execution" typically refers to the carrying out or enforcement of a court judgment, order, or sentence. It can involve various actions, such as the seizure of assets, eviction, or other measures to ensure compliance with a legal decision.property attachment and arrest also measure of execution.
Execution petition file in civil court in Pakistan, after when a civil suit decree, you can file execution to execute the order of the court.
قانونی اصطلاحات میں، " ajraa ya execution " سے مراد عام طور پر عدالتی فیصلے، حکم یا سزا پر عمل درآمد یا نافذ کرنا ہے۔ اس میں مختلف کارروائیاں شامل ہو سکتی ہیں، جیسے اثاثوں کی ضبطی، بے دخلی، یا قانونی فیصلے کی تعمیل کو یقینی بنانے کے لیے دیگر اقدامات۔
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| Execution will be time bard if not stay in appeal |
Following judgement decree holder waiting for appeal decision and did not filed execution petition.there was not stay in appeal. And the limitation was continue And after appeal decision he filed execution but it was time barrd and petition dismiss by lower court as well as High court in writ petition.
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Lahore High Court Judgement on execution petition.
Stereo. H C J D A 38
Judgment Sheet
IN THE LAHORE HIGH COURT, LAHORE.
JUDICIAL DEPARTMENT
EFA No. 117828/2017
First Punjab Modaraba (FPM)
Versus
M/s Aftab (Pvt.) Limited etc.
J U D G M E N T
Date of hearing:
16.06.2022
Appellant by:
Mr. Nadeem Saeed, Advocate.
Respondents by:
Mr. Muhammad Imran Malik, Advocate.
Faisal Zaman Khan, J:- Through this Execution First Appeal,
order dated 08.11.2017 passed by the learned Judge Banking Court
No.II, Lahore (Banking Court) has been assailed by virtue of which
an execution petition filed by the appellant has been dismissed.
2.
Facts giving rise to the present appeal are that a suit for recovery
was filed by the appellant against the respondents before the Modaraba
Tribunal, Lahore (Tribunal) which was decreed vide judgment and
decree dated 14.11.2009. Feeling aggrieved, respondents filed RFA
No. 215/2020 before this Court, which was dismissed through
judgment and decree dated 14.12.2015. For seeking execution of the
decree passed by the Tribunal, an execution petition was filed by the
appellant on 18.04.2016 during the course of which objections qua
maintainability of the execution petition were filed by the respondents,
which were accepted through the impugned order and the execution
petition was dismissed being barred by time, therefore, this appeal.
EFA No. 117828/2017
2
3.
Learned counsel for the appellant submits that the Banking
Court erred in law in dismissing the execution petition on the ground
that it is barred by limitation. He asserts that the said court lost sight of
the fact that against the judgment and decree passed by the Tribunal, an
appeal was filed by the respondents and since appeal is continuation of
the suit and when the appellate court decided the appeal, the decree
passed by the Tribunal merged into the appellate decree, therefore,
limitation for filing the execution petition started from the day when
the appeal was dismissed and since execution petition has been filed
within 03 years of dismissal of the appeal, therefore, keeping in view
Article 181 of the Limitation Act, 1908 (Act), execution petition was
filed within time. He places reliance on Maulvi Abdul Qayyum v. Syed
Ali Asghar Shah and 5 others (1992 SCMR 241), Muhammad Nazir
and another v. Qaiser Ali Khan and 4 others (2003 SCMR 436) and
Bakhtiar Ahmed v. Mst. Shamim Akhtar and others (2013 SCMR 5).
4.
Replying to the above, learned counsel for the respondents
submits that judgment and decree passed by the Tribunal was assailed
by the respondents before this Court through an appeal, however,
temporary injunction qua suspension of the said judgment and decree
was not granted, therefore, keeping in view Section 28 of the
Modaraba Companies and Modaraba (Floatation and Control)
Ordinance, 1980 read with Order XLI Rule 5 CPC since there was no
prohibitory order holding the field suspending the judgment and
decree, thus, the decree could be executed forthwith and since the
execution petition has been filed after considerable delay, therefore, the
impugned order is in accordance with law.
5.
Arguments heard. Record perused.
6.
The sole question which requires determination by this Court is
as to whether the execution petition filed by the appellant was within
time.
EFA No. 117828/2017
3
7.
From perusal of the available record, the following facts are
admitted:-
a)
That judgment and decree dated 14.11.2009 was passed
by the Tribunal in favour of the appellant;
b)
That the said decree was challenged by the respondents
through RFA No. 215/2010, however, no temporary
injunction was granted to them qua suspension of the
decree;
c)
The appeal was dismissed by this Court on 14.12.2015
whereafter execution petition was filed by the appellant on
18.04.2016.
8.
In the above backdrop and for deciding the controversy in hand,
it will be apposite to reproduce Order XLI Rule 5 CPC which is as
follows:-
Stay by Appellate Court.--(1) An appeal shall not operate as a
stay of proceedings under a decree or order appealed from
except so far as the Appellate Court may order, nor shall
execution of a decree be stayed by reason only of an appeal
having been preferred from the decree; but the Appellate Court
may for sufficient cause order stay of execution of such decree.
Stay by Court which passed the decree.--(2) Where an
application is made for stay of execution of an appealable
decree before the expiration of the time allowed for appealing
therefrom, the Court which passed the decree may on sufficient
cause being shown order the execution to be stayed.
(3) No order for stay of execution shall be made under sub-rule
(1) or sub-rule (2) unless the Court making it is satisfied—
(a)
that substantial loss may result to the party applying for
stay of execution unless the order is made;
(b)
that the application has been made without unreasonable
delay; and
(c)
that security has been given by the applicant for the due
performance of such decree or order as may ultimately be
binding upon him.
(4)
Notwithstanding anything contained in sub-rule (3), the
Court may make an ex parte order for stay of execution pending
the hearing of the application
EFA No. 117828/2017
4
(emphasis supplied)
9.
A bare perusal of the above provision would show that mere
filing of an appeal would not operate as stay of proceedings under a
decree appealed from and there is no embargo on the rights of a decree
holder to initiate execution proceedings against the judgment debtor,
that too, from the date of accrual of right.
10.
Similarly it will be important to go through Section 15 of the Act
which signify that when a stay is granted by a court qua execution of a
decree, the time of continuance of that order will be excluded from the
period of limitation for filing an execution petition. For convenience,
the said provision is reproduced hereunder:-
“Exclusion of time during which proceedings are suspended.
(1)
In computing the period of limitation prescribed for any
suit or application for the execution of a decree, the institution
or execution of which has been stayed by injunction or order, the
time of the continuance of the injunction or order, the day on
which it was issued or made and the day on which it was
withdrawn, shall be excluded.
(2)
In computing the period of limitation prescribed for any
suit of which notice has been given in accordance with the
requirements of any enactment for the time being in force, the
period of such notice shall be excluded.”
(emphasis supplied)
11.
The reading of the above provisions in juxtaposition with the
facts of the present case would show that since no stay order was
granted by this Court for suspending the decree or for stay of execution
proceedings which could be excluded from the period of limitation for
seeking execution of the judgment and decree passed by the Tribunal,
thus the said decree continued to maintain its identity and was capable
of execution from the day the right accrued to the appellant, however,
the appellant failed to file an execution within the period of limitation
as contemplated in Article 181 of the Act, which commenced from the
day the right accrued, thus, the execution petition was barred by time.
EFA No. 117828/2017
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12.
In the above perspective, we have gone through the judgments
cited by learned counsel for the appellant and find that these pertain to
the proceedings emanating out of civil suits and not a case which has
been filed and tried under a special dispensation as the proceedings in
the present case have been initiated under the Modaraba Companies
and Modaraba (Floatation and Control) Ordinance, 1980. Another
distinguishable feature in the judgments cited by the learned counsel
for the appellant is that in the cases of Maulvi Abdul Qayyum and
Muhammad Nazir (supra), the decrees were passed by the trial court,
however, prohibitory orders were passed by the 1st appellate courts qua
the judgments and decrees whereas in the case of Bakhtiar Ahmed
(supra), the decree was passed by the revisional court, thus the said
judgments are distinguishable and the principle of merger as discussed
in the said judgments will not apply to the case in hand.
13.
It shall be important to mention here that in the case of
“Bakhtiar Ahmed” (supra), while reiterating and endorsing the view
taken by the Honourable Apex Court in the case of “Maulvi Abdul
Qayyum” (supra), it has been held as follows:-
“It is to be remembered that till such time an appeal or revision
from a decree is not filed, or such proceedings are pending but
no stay order has been issued, the said decree remains capable
of execution but when the court of last instance passes the
decree, only the decree can be executed, irrespective of the fact,
that decree of the lower court is affirmed, reversed or modified.
It was further held as follows:-
“In the above cited case it was held that where stay is granted
by the appellate/revisional court, time can be extended for such
period the decree remained under suspension. In the instant case
a right has been accrued in favour of the respondent in terms of
the order of the High Court and admittedly no stay or leave to
appeal was granted by this Court, as such, the period of
limitation would run from the decree passed by the High Court
and no extension of time can be granted.”
EFA No. 117828/2017
6
14.
Even otherwise, this does not appeal to reason that a decree is
passed by a court, which is under challenge, before an appellate court
and despite the fact that no temporary injunction is granted, the decree
cannot be executed on the analogy that the appeal is continuation of the
suit and unless the appeal is finalized, the decree will not become final.
If this argument is accepted, then the provision of Order XLI Rule 5
CPC and Section 15 of the Act would become redundant. On the
converse side, this situation will help the judgment debtor on the
ground that as and when he files an appeal, he will not be required to
make a prayer for seeking a prohibitory order qua suspension of the
judgment and decree or the execution proceedings on the same analogy
of continuation of proceedings and the principle of merger. This
stipulation will in fact indirectly dispense with the above noted
provisions and defeat their mandate.
15.
As discussed above, since the present proceedings have been
initiated under a special dispensation [the Modaraba Companies and
Modaraba (Floatation and Control) Ordinance, 1980] and not under
Section 9 CPC and for initiation of the same, a special procedure has
been provided which has now been substituted with the Financial
Institutions (Recovery of Finances) Ordinance, 2001 (Ordinance) and
in Section 22 of the Ordinance, it has clearly been mentioned that
unless the operation of judgment and decree under execution is stayed
or execution proceedings are suspended by the appellate court or the
executing court, the proceedings under execution will go on, thus, mere
pendency of an appeal does not itself operate as a stay.
16.
Last but not the least, a perusal of the execution petition filed by
the appellant would show that it had sought execution of judgment and
decree passed by the Tribunal (and not by the appellate court), thus
even if rule of merger is applied to the case in hand, appellant was to
seek execution of the appellate judgment and decree, which has never
EFA No. 117828/2017
7
been sought, thus the execution petition was even otherwise not
maintainable (see Page No. 12 of the case file).
17.
For what has been discussed above, we find no reason to
interfere with the impugned order, therefore, this appeal fails and the
same stands dismissed.
Approved for Reporting
Judge
Judge
Abis Ali
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