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Civil Revision No. 139 of 1975, decided on 1st August 1975:

----- Art. 182-Execution proceedings for possession of decreed land started on 12-9-67-Supreme Court, on application of judgment--- debtor for leave to appeal ordering stay of execution proceedings in executing Court-Leave to appeal ultimately refused but decree-holder not informed of such refusal and proceedings consigned to record room-Decree-holder making another application on 7-3-1972 stating that he was not aware of result of appeal in Supreme Court-Held, proceedings consigned to record-room without making final order could be revived at any time, in circumstances of case and petition for execution subsequently made by decree-holder not time-barred.

Mst. Amir Begum v. Lt.-Col. Sayed Mir Fateh Shah and others P L D '1968 Kar. 10; Krishnamachari v. Chengalraya Naidu A I R 1940 Mad. 281 ; Lal Pasi and others v. Ramsaran Lai Chaudhry and others A I R 1925 Pat. 298 ; Sat Narain Lai v. Ganga Lal and others A I R 1926 All. 409; Bibi Hajo and another v. Har Sahay Lai A I R 1926 Pat. 62; Mst. Habban Begum and others v. Mst. Mott Begum A I R 1934 All. 294 ; Kanwar Chandra Rajsaran Singh v. Munshi Lai A I R 1938 Lah. 295 ; Muhammad Taqi v. Raja Ram A I R 1936 All. 820 ; Rams Kant v. Satya Narain A I R 1938 All. 552; Krishnamachari v. Changalraya A I R 1940 Mad. 281 and Imtiaz Ahmad v. Ghulam Ali P L D 1963 S C 382 ref.

Khan Bahadur Khan for Petitioner.

Muhammad Aman Khan for Respondent.

Date of hearing: 1st August 1975.

By his order dated 27-3- 73 Additional Civil Judge Peshawar dismissed the application of Muaqarrab Khan and Shah Muhammad Khan, decree holders, for the restoration of their execution proceedings under No. 13/10 instituted on 14-9-67 and decided on 5-10-67 wherein they had prayed for possession of land decreed in their favour. The learned Additional Civil Judge was of the view that execution petition moved by the petitioner was barred by time, it being not within three years. It appears that he considered the terminus a quo to be the order of the Supreme Court of Pakistan dated 2-4-1968 whereby leave to appeal was refused to the judgment debtor.

2. There was an appeal by the decree-holders and that came up fort disposal before the Additional District Judge, Peshawar and he by his judgment dated 21-5-75 allowed it holding that the execution was stayed under the orders of the Supreme Court of Pakistan, leave to appeal of they respondent was not allowed to the respondent; and it appeared that no notice was sent to the decree-holders. In the circumstances, the appellant before him was not aware of the fate of his opponent's petition in the Supreme Court. The learned appellate Judge also reiterated that the consistent efforts of the appellant before him were frustrated on account of the pendency of the petition before the Supreme Court and a stay order issued by that Court. The learned appellate Court added that Mst. Amir Begum v. Lt.-Col. Sayed Mir Fateh Shah and others (P L D 1968 Kar. 10) and Krishnamachari v. Chengalraya Naidu (A I R 1940 Mad. 281) would support his view that the petition moved by the appellant was not time-barred.

3. The judgment-debtor, namely, Muhammad Umar Khan is not satisfied and he has moved the present civil revision. Mr. Khan Bahadar Khan his learned counsel, submits that final order consigning the file to the Record Room in the execution petition having been made on 5-10-1967, the petition moved on 1-11-71 was beyond three years, even if one was to hold that terminus a quo in the circumstances of the case was the 2nd of April 1968, when leave to appeal was disallowed to his client by the Supreme Court of Pakistan.

4. Before I embark upon a discussion of the legal position that arises, I should like to bring on this record that Application No. 13/10 of 1967 was moved by the respondent-decree-holder on 12-9-1967 so as to get the possession of one kanal and seventeen marlas of the land decreed in his favour. A warrant for possession was issued on 14-9-67 and it appears that it was represented to the Court that an application moved by the judgment debtor for the stay was pending before the Supreme Court of Pakistan on that day and it was in these circumstances that the case was adjourned to the next date for appropriate orders. On 5-10-1967 the following order was made:-

"Decree-holder No. 2 present. Judgment-debtor with counsel present. Appeal has been moved in the Supreme Court. According to the statement of Malak Maqbool Elahi, counsel for the judgment-debtor, stay order has been issued. On the strength of the statement of the aforementioned counsel execution petition in being consigned to the Record Room without further proceedings as infructuous. Order announced."

On page 10 of the execution file, there is a copy of the order of the Supreme Court and on page 12 there is a telegram from Supreme Court to the address of Qazi Attiqur Rehman, Civil Judge 1st Class, Peshawar. The learned counsel for the petitioner contends that the petition for leave to appeal was dismissed by the Supreme Court on 2-4-1968. It has been asserted by the learned counsel for the petitioner and as a matter of fact there is no denial that the respondent moved an application for execution on 1-11-1971 but it was consigned to the Record Room on 6-3-1972 when it was represented that the case in the Supreme Court had not been decided. On the following day, that is to say, on 7-3-72, the respondent moved another application, out of which the present petition arises, that the decree-holder was not aware of the result of the appeal in the Supreme Court. It was in these circumstances that notice was issued to the petitioner and on 1-4-1972 the latter represented that the case had been decided against him on 2-4-1968. This application was dismissed on 27-3-1973 by the order referred to in paragraph I of this judgment and the appeal against the same was accepted on 21-5-1975 vide, paragraph 2 of this judgment.

5. When I inquired from the learned counsel for the petitioner as to whether the respondents were ever summoned to the Supreme Court; or the result of the petition for leave to appeal was communicated to the Executing Court by the Supreme Court; or that his clients even brought the result of the Supreme Court and decision to the notice of the Court, his reply to all the three queries was in the negative. The learned counsel submitted that order of the Executing Court dated 5-10-67 was a final order within the contemplation of Article 182(5) of the Limitation Act and that in any case the application moved by the respondent ran 1-11-71 was also beyond three years of the 2nd of April 1968 when the leave to appeal was refused to the petitioner by the Supreme Court. In support of the proposition that where a stay order or an injunction is issued, it is the date on which such stay order and injunction are vacated, which is all important and that the period of three years limitation is counted from that day, the learned counsel referred me to Lai Past and others v. Ramsaran Lal Chowdhry and others (A I R 1925 Pat. 298), Sat Narain Lai v. Ganga Lai and others (A I R 1926 All. 409), Bib; Hajo and another v. Har Sahay Lal (A I R 1926 Pat. 62), Mst. Nabban Begum and others v. Mt. Moti Begum (A I R 1934 All. 294) and Kanwar Chandra Rajsaran Singh v. Munshi Lal (A I R 1938 Lah. 695).

6. Before I refer to the rulings cited by the learned counsel for the petitioner I should like to bring on the record that Article 182 read with Serial No. 5 of the Third Column thereof provides a period of three years from the date of the final order passed on an application made in accordance with law to the proper Court for execution. So to speak the fresh application should be within three years of the final order passed in an execution petition and if it is not made within that time, it will be barred by limitation. The all important question, therefore, is as to what is a 'final order' and again whether the order made by the Executing Court in this case on 5-10-1967 is a final order. Note 129 under Article 182 of the Limitation Act by V.V. Chitaley, Vol. III, 2nd Edn contains an elaborate discussion about the import of the expression 'final order'. Muhammad Taqi v. Raja Ram (A I R 1936 All. 820) the Full Bench had an occasion to deal with the point and the pertinent remarks of their Lordships are "we think that 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." In this context reference with advantage may also be made to Note 143 ibid where the learned commentator has said as follows:-

"An execution application must be deemed to be pending so long as no final order disposing of it 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. On the other hand, where a final judicial order terminating the proceedings has been passed on the application, it cannot be revived. And a subsequent application for executions will be regarded as a fresh application and not as one for a revival or continuation of the original proceedings.

The question whether or not an execution proceedings has been finally disposed of so as to be incapable of being revived or continued, is a question of fact which had to be determined having regard to the facts and circumstances of the particular case. The form of the order passed on the application is not sufficient to determine the question. The question is really one of substance and not of form."

It will be seen that facts and circumstances of each particular case have got to be noticed and the question is really one of substance and not of form. The cases nearer to the view which has commended itself to me are to be found in Rama Kent v. Satya Narain (A I R 1938 All. 552) and Krishnamchari v. Ghangalraya (A I R 1940 Mad. 281). On the basis of these two authorities, Chitaley has made the following observations:

"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 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."

7. The above view of law is fully endorsed by Mst. Amir Begum v. Lt. -Col. Sayed Mir Fateh Shah and others and I should say that the matter stands concluded by the observations of the Division Bench Authority, alluded to above. Be that as it may, I fail to understand how can an act of Court prejudice anybody (observations of Kaikaus, J. in Imtiaz Ahmad v. Ghulam Ali (P L D 1963 S C 382) on page 400 refer). The stay order of the Supreme Court though conveyed to the Executing Court by a telegram was not superseded by any communication to the address of the Executing Court. The petitioner was fully aware of the dismissal of his petition for leave to' appeal but he never brought to the notice of the Executing Court that his application has been dismissed and therefore the stay order issued by the Supreme Court had become infructuous. Since there was no notice to the respondent from the Supreme Court at any stage, it was but natural on his part to have assumed that the' stay order continues to remain in force.

8. 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 extenso. 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,

9. The authorities cited by the learned counsel for the petitioner are distinguishable on the short ground that in all these cases the proceedings were stayed or injunction were issued when the decree-holder was either a party to the case in which orders were issued or in the know of it. In

Lal Pasi and others v. Ramsaran Lal Chowdhry and others the decree-holder was a defendant in the injunction suit brought by the third party, claiming title in itself. In Bibi Hajo and another v. Har Sahay Lai the judgment-debtor had instituted a title suit to question the rent decree as null and void. To such a suit the decree-holder was a party. The facts of the case in Sat Nardu Lal v. Ganga Lal and others are not forthcoming in the report but the rulings referred to in the judgment would show that in one case the decree was being questioned on the ground of fraud and this could only take place if the decree-holder had been impleaded as party. In Kanwar Chandra Rajasaran Singh v. Munshi Lal it does not appear that any order was ever issued by the Privy Council.

10. On the view of the matter that I take, I do not find any force whatsoever in this petition and will uphold the order of the Additional District Judge setting aside the order of the Executing Court dated 27-3-73. The petition is dismissed with costs.

S. Q.

Petition dismissed.

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