Execution petition filed once will be continue .
Certainly! Here's a summary of the main story of the case law and the key points discussed by the Lahore High Court:
**Main Story of the Case Law:**
- The case revolves around a dispute regarding a land possession decree dating back to 1956.
- The original decree was amended in 1991, and subsequent execution petitions were filed by the decree holders to enforce the judgment.
- The petitioner, Sabir Ali, raised objections to the execution petitions, arguing that they were time-barred as they were filed more than 20 years after the decree.
**Key Points Discussed by the Lahore High Court:**
1. **Timeliness of Execution Petitions:** The court examined whether the execution petitions were filed within the statutory time limits prescribed by law.
2. **Nature of Orders by the Executing Court:** The court analyzed the orders passed by the executing court, particularly whether they constituted final orders or merely suspended the execution proceedings.
3. **Revival vs. Fresh Application:** It discussed whether the subsequent execution petition should be considered a fresh application or a continuation of the original proceedings, based on the nature of the orders and circumstances.
4. **Interpretation of Statutory Provisions:** The court interpreted relevant sections of the Civil Procedure Code and the Limitation Act to determine the applicability of time limits for filing execution petitions.
5. **Satisfaction of Decree:** The court examined whether the decree holders had obtained satisfaction of the decree and whether the execution petitions were justified in seeking further relief.
6. **Jurisdictional Compliance:** It reviewed whether the lower courts had acted within their jurisdiction and whether any irregularities or jurisdictional defects were present in their judgments.
Overall, the Lahore High Court dismissed the civil revision, finding no merit in the petitioner's arguments and upholding the judgments of the lower courts.
THE LAHORE HIGH COURT,
LAHORE.
JUDICIAL DEPARTMENT.
….
Civil Revision No.2938 of 2022.
Sabir Ali.
Versus
Munawar, & others.
J U D G M E N T.
Date of hearing:
24.04.2024.
Petitioner by:
Raja Abdul Rehman,
Advocate.
Respondents # 1 to 6 by:
Mr. Muhammad Ghafoor
Malik, Advocate.
Respondent #.7 by:
Ms. Samia Khalid,
Additional Advocate
General.
AHMAD NADEEM ARSHAD, J. Through this Civil
Revision, filed u/s 115 of Code of Civil Procedure, 1908, the
petitioner has called in question the validity and legality of
impugned orders/judgments of learned Courts below, whereby,
his objection petition was dismissed concurrently.
2.
Facts in brevity are that this Court passed a
judgment and decree dated 10.12.1988 in favour of predecessor
of the respondents, namely, Jumun (Jamoo), etc. Said decree
was amended on vide judgment and decree 22.01.1991. For the
Civil Revision No.2938 of 2022. -2-
satisfaction of the said decree, the predecessor of the
respondents/decree holders moved an execution petition on
02.10.1991; that said execution petition was consigned to
record room vide order dated 28.11.1991 on the basis of report
submitted by the revenue field staff in compliance of ‘Warrant
Dakhal’; that as decree-holders were not satisfied, they filed
another execution petition on 08.02.1992; that said execution
petition was consigned to record vide order dated 07.03.2000
on the ground that decree holders failed to deposit process fee;
that decree holders filed another execution petition on
05.07.2011; that during the pendency of said execution petition
the petitioner Sabir Ali moved an objection petition with the
contention that after the lapse of 20 years of the decree, the
respondents/decree holders are estopped by law to file
execution petition, therefore, their execution petition is not
maintainable being barred by time; that said objection petition
was dismissed by the learned executing Court vide order dated
17.04.2012. Being aggrieved, the petitioner preferred an appeal
which also met the same fate and dismissed by the learned
appellate Court vide judgment dated 26.11.2021. Being dissatisfied, the petitioner approached this Court through instant
Civil Revision.
3.
I have heard learned counsel for the parties at full
length and perused the record with their able assistance.
4.
A suit for possession of land measuring 1257
Kanals 10 Marlas was instituted which was decreed on
Civil Revision No.2938 of 2022. -3-
03.05.1956 and appeal against it was dismissed on 25..03.1957
The defendants of said suit challenged said judgments and
decrees through filing RSA No.145 of 1957 titled “Jamun, etc. Vs
Mst.Hakan, etc.” before this Court which was allowed vide
judgment and decree dated 10.12.1988 and subsequently said
decree was amended vide judgment and decree dated
22.01.1991. For satisfaction of said judgment and decree dated
22.01.1991 an execution petition was filed on 02.10.1991
within a period of three years. Said execution petition was
consigned to record room vide order dated 28.11.1991 by the
learned executing Court on the information that the decree had
been satisfied in its letter and spirit and the possession of the
decreed property was handed over to the decree holders through
‘Warrant Dakhal’ dated 26.11.1991. Said order was passed in
the absence of decree holders. Being dis-satisfied they filed
another execution petition on 08.02.1992 with the contention
that their execution petition was consigned to record being
satisfied in their absence whereas the decree has not been
satisfied in its letter and spirit as neither possession was
delivered nor mutation was sanctioned and prayed for
satisfaction of the judgment and decree dated 22.01.1991
according to its spirit. Said execution petition was consigned to
record vide order dated 07.08.2000 on account of non-deposit
of cost of ‘Warrant Dakhal’. Decree holders filed a Criminal
Original No.22-C of 2010 in RSA No.145 of 1957 with a prayer
Civil Revision No.2938 of 2022. -4-
that contempt proceedings be initiated against the respondents
of said petition, as they failed to implement the judgment and
decree dated 22.01.1991. Said contempt petition was disposed
of vide order dated 17.06.2011 with a direction to the learned
Executing Court to decide the pending execution petition within
a period of two months from the order. The decree holders filed
another execution petition on 15.07.2011 in the light of said
order of this Court. The petitioner challenged said execution
petition by moving an objection petition that the said execution
petition is not maintainable being barred by time as it has been
filed after lapse of more than 20 years of the decree. Said
objection petition was dismissed after getting its reply and said
order remained intact before the Appellate Court. Hence, this
petition.
5.
By virtue of Article 181 of the Limitation Act,
1908 an application for the execution of a decree or order of a
Civil Court has to be made within three years of the date of
decree or order sought to be executed. Section 48 of C.P.C.
prescribes a period of six years as the outer limits after the
expiry of which the Court cannot entertain a fresh application
for execution.
6.
The first application was filed on 02.10.1991 within
a period of three years and second application was filed on
08.02.1992 before the expiry of outer limit and the third
application was filed on 15.07.2011. Now the question is
Civil Revision No.2938 of 2022. -5-
whether the third application filed on 05.07.2011 be considered
as fresh application filed after the expiry of limitation or to be
treated as continuation of the execution petitions which had
been consigned to the record room being satisfied and on
account of default for deposit of process fee.
7.
The stance of the decree holders is that neither any
mutation was sanctioned in their favour nor possession was
given to them as per judgment and decree dated 22.01.1991.
Therefore, their execution petitions were remained unsatisfied
and no final order for the disposal of the execution petitions
was passed. The third execution petition is revival of earlier
petitions and not fresh execution petition.
8.
The all important question, therefore, is as to what
is the “final order” and again whether the orders passed by the
executing Court in this case on 28.11.1991 and on 07.03.2000
are ‘final orders’. Where the Court intended to dispose of the
matter completely and no longer keeps it pending on its file and
does not merely suspend the execution or consign the record to
the record room for the time being, the order must be deemed to
a final order which will give a fresh start for the purposes of
limitation, and that the proceedings not being pending, there
would in such a case be no question of revival. But, where such
an order is made in a case in which the decree holder could not
take further proceedings owing to circumstances beyond his
control, the order will be regarded as merely suspensory in its
Civil Revision No.2938 of 2022. -6-
nature and a fresh application will be regarded as one for the
revival and continuation of the original proceedings. Thus,
where the execution is stayed or is prevented by injunction, or
becomes impossible to be proceeded with, owing to a claim
being advanced to the property which is the subject of the
execution or owing to some other obstacle placed by the
judgment debtor in the way of execution, and the application
“dismissed” or “struck off” or “consigned to the record room”
or “returned” the order will not be regarded as having finally
disposed of the petition, and a subsequent application will be
regarded as one for the revival and continuation of the original
proceedings. For reference “Rana Kent Malaviya and another
Vs Satya Narain Malaviya” (A.I.R. 1938 Allahabad 552) and
“Krishnamachari Vs. Chengalraya Naidu” (A.I.R. 1940
Madras 281).
9.
It should be noted that the words ‘fresh
application’ have been used in Section 48(1) C.P.C., therefore,
what is contemplated under this section by the words ‘fresh
application’, is a substantive merely ancillary or incidental to a
previous application, that is to say if the decree holder seeks to
set the court into motion to take further proceedings in respect
of an application already pending or where the application has
been recorded or where the execution proceedings have been
suspended by reasons of appeal or other proceedings, it would
not be regarded as fresh application. For reference “Venlappa
Civil Revision No.2938 of 2022. -7-
and others Vs Lakshmi Kant Rao” (A.I.R 1956 Hyderabad
07).
10. In case titled “MUHAMMAD UMER KHAN versus
MUQARRAB KHAN and another” (PLD 1976 Peshawar 43) it
was held as under: -
“At this stage I should like to refer to the order of the
Executing Court dated 5.10.67 which has already been
quoted in extensor. This is quite clear that the
proceedings were not consigned to the record-room at
the instance of the decree-holder. One fails to
understand how could a final order be at all passed by
the Executing Court when the Supreme Court of
Pakistan had ordered that the delivery of the possession
was to be stayed until the hearing of the petition. It
would follow that the proceedings were consigned to the
record-room without making any final order and such
being the case could be revived at any time, the court
was satisfied that the impediment which stood in the way
of the execution no longer existed.”
11.
The execution application was deemed to be
pending so long as no final order disposing it of judicially has
been passed thereon. In subsequent application in such a case
for execution will be deemed to be one merely for the
continuation of the original proceedings. Where final judicial
order termination the execution petition had been passed on the
application, such execution proceedings could not be revived
and the subsequent application for execution would be regarded
as fresh application and not one for revival and continuation of
the original proceedings.
12. The Hon’ble Supreme Court of Pakistan while
dealing with the similar proposition observed in case titled
Civil Revision No.2938 of 2022. -8-
“UNITED BANK LIMITED vs. FATEH HAYAT KHAN
TAWANA and others” (2015 SCMR 1335) as under: -
9.“Significantly, the terms of the order dated 7-2-1989 are
amenable also to the rival interpretation given to it by the
appellant. It is urged that the said order of the learned
Executing Court treats the second execution application to
be a substitute or a continuation of the first execution
application. This is because the second application
contains better particulars for the already prayed mode of
execution of the decree. Accordingly, the learned
Executing Court has consigned the first application to
record and proceeded with its substitute. The argument has
some force. The question of time bar is not considered by
the order dated 7-2-1989. It arose for determination after
the respondents/judgment debtors were issued notices on
the second execution application. Whilst examining that
objection, the learned Courts below were obliged to
consider whether the first execution application could at
all be terminated without an order dismissing or disposing
of the same. This aspect of the matter was ignored on the
presumption that the consignment of an application to the
record amounts to its dismissal. The fact is that in the
absence of a clear order disposing of the first execution
application there is no justification, for treating the
proceedings therein to have been concluded. The fate of an
execution proceeding in similar situation is explained by
the learned full Bench judgment of the High Court of Sindh
in Amir Begum v. Mir Fateh Shah (PLD 1968 Karachi 10)
wherein Wahiduddin J. (as the then was) opined as
follows:-
“….It is well settled rule of law that an execution
application must be deemed to be pending so long
as no final order disposing it of judicially has been
passed thereon. A subsequent application in such a
case for execution will be deemed to be one merely
for the continuation of the original proceedings. In
this connection the Privy Council in Qamar-ud-Din
Ahmed v. Jawahirlal (32 I A 102) observed as
under: --
“Their Lordships are of opinion that the execution
proceedings commenced by the petition of the 24th
August, 1888 were never finally disposed of and that
the application now under consideration was in
substance, as well as in form, an application to
revive and carry through a pending execution
suspended by no act or default of the decree-holder,
and not an application to initiate a new one.”
This principle has also been applied in cases where
the application is dismissed or struck off or
consigned to the record room or returned. Such
Revision No.2938 of 2022. -9-
order is not to be regarded as finally disposing of
the petition and a subsequent application will be
regarded as one of revival and continuation of the
original proceedings…….” (Underlining supplied).
10.
The judgment in Mehboon Khan’s case ibid is
relevant in laying down that where the ‘first execution’
application has been filed within a period of three years
from the date of decree under execution, then any fresh
application for execution of the said decree may be filed
within a period of six years from the date of the said
decree. According to the said judgment a fresh application
is conceived to be filed “after disposal of the first execution
application.” Therefore, an application that is filed during
the pendency of a timely first execution application cannot
be considered a ‘fresh application.’ This is because it
elaborates or amends the pending first execution
application. For the reason the subsequent application is
liable to be treated as a continuation of or ancillary to the
pending execution application. In such a case, quite
obviously the objection of limitation cannot have any
relevance.”
13. The learned executing court was given the
impression that the decree had been satisfied in its letter and
spirit and the possession of the decreed property was given to
the decree holders through ‘Warrant Dakhal’ dated 26.11.1991
and in this regard Rapt Roznamcha Waqiati No.104 dated
26.11.1991 was submitted. In the light of said submission the
learned executing court consigned the file of execution petition
to record room vide order dated 28.11.1991. Perusal of order it
appears that said order was passed in the back of decree
holders and without providing them opportunity of hearing.
The decree holders promptly approached the learned executing
court through execution petition on 08.02.1992 for completion
of their execution petition in the light of amended judgment
Civil Revision No.2938 of 2022. -10-
neither suit property was transferred in their names nor
possession was handed over to them. In the ‘Warrant
Dakhal’dated 26.11.1991, the Collector directed the concerned
Patwari to enter the mutation which also support the version of
the decree holders that suit property was not entered in their
names in the revenue record. The decree holders are not
claiming anything except their own rights determined by this
Court. Mere on the reports, in the ‘Warrant Dakhal’ and Rapt
Roznamcha Waqiati, that possession was given to the decree
holders cannot be taken as conclusive proof of the fact that the
decree holders were put into physical possession of the suit
land decreed in their favour till then the decree holders
admitted said fact. The decree holders have not come to the
court for some new or fresh relief rather they approached the
executing court to get the relief given by this Court. Therefore,
their third execution petition is just revival of their earlier
execution petitions which were filed within time and consigned
to record without satisfaction of the decree passed in their
favour. The decree holders pursuing their case since long and
their decree is still unsatisfied.
14.
I have minutely gone through the record available
on the file as well as the impugned orders/ judgments passed
by learned Courts below, I have seen no illegality, irregularity
and mis-reading or non-reading of record and jurisdictional
defect on the part of learned Courts below. Learned counsel for
Civil Revision No.2938 of 2022. -11-
the petitioner has been unable to point out any illegality,
irregularity or jurisdictional defect in the impugned
orders/judgments.
15.
For what has been discussed above, the instant
civil revision is, hereby, dismissed being without any merits.
No order as to costs.
(AHMAD NADEEM ARSHAD)
JUDGE
Approved for Reporting.
JUDG
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