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Execution Application No. 4 of 1978 (Suit No. 24 of 1963), decided on 18th August, 1979.

-- Art. 183-Execution of decree-Cause of action-Reviver Issuing of process (writ of attachment) by execution Court, held, constitutes reviver of cause of action and such date basic date for computing period of limitation under Art. 183.-[Decree].

Amulya Ratan Banerjee and others v. Banku Behari Chatterjee A I R 1925 Cal. 668 ; A. T. K. P. L. M. Muthiar Chettiar v. Chidambaran Chetty and others A I R 1928 Cal. 686 and Hasan Vali Bagas v. Isap Bapuji Patel and others A I R 1939 Born. 51 ref.

Mansoor-ul-Arfin for the Decree-Holder.

Abdul Rauf for Defendant.

C. M. A. No. 16/1979. Mr. Abdul Rauf does not press this appli cation and, therefore, the same is dismissed as withdrawn.

2. C. M. A. No. 18/79. In support of the above application Mr. A. Rauf, Advocate for the judgment-debtor submits that the present applica tion is time barred. And whereas the learned counsel for the decree-holder contends that it is within time. In order to appreciate the respective contentions; it will be necessary to state the facts leading to the filing of the present application. The decree was passed on 8th February, 1966. The decree-holder filed first execution application, namely, Execution Application No. 41/6.1. The above execution application was compromised through an application dated 18th December. 1967. Consequently, the aforesaid execution application was dropped on 6th May, 1969. Upon failure on the part of the judgment-debtor to fulfil the conditions of the compromise, the decree-holder filed second execution application on 25th March, 1969. However, this application was withdrawn before even it was numbered through an application dated 15th May, 1969 which was granted on 20th May, 1969. After that the decree-holder filed 3rd execution application namely Execution Application No. 86/70. To the above Execution Application, the judgment-debtor filed certain objections, which were dismissed by an order dated 15th November, 1971 and a writ of attachment was ordered to be issued. However, the above Execution application was also dropped on 31st March, 1972. After that tae decree-holder filed fourth execution application viz. Execution Application No. 197/72. In the above execution application on 16th September, 1972 the Court ordered the issuance of writ of attachment. The above execution application was also dropped by an application dated 14th November, 1974 on the ground that the judgment-debtor was not available in Pakistan and that the decree-holder would move a fresh execution application. The above withdrawal application was granted on 24th November, 1974. After that the decree-holder filed the present fifth execution application.

3. (a) Mr. A. Rauf, the learned counsel for the judgment-debtor in support of his contention that the present execution application is barred by time has invited my attention to Article 183 of the First Schedule, which reads as follows

"183.-To enforce a judgment, When a present right to enforce

decree or order of any the judgment decree or order

High Court in the exercise of accrues to some person capable

its ordinary original civil of releasing the right

jurisdiction, or an order of ,

the Supreme Court.

Provided that when the judgment,

decree or order has been revived,

or some part of the principal

money secured thereby or some

interest on such money has been

paid, or some acknowledgment

of the right thereto has been

given in writing signed by the

person liable to pay such

principal or interest, or his agent,

to the person entitled thereto or

his agent the six years shall be

come from the date of such

reviver, payment of acknow

ledgement or the latest of such

revivers, payments or acknow

legements, as the case may be."

Mr. Abdul Rauf, has urged that at the most for the purpose of reviving the cause of action for the instant execution application, date of the aforesaid compromise application, namely 18th December, 1%7 is the last date and, therefore, the application Is barred by time. Whereas according to Mr. Arfin the last date for reviving the cause of action is 25th October, 1972. When this Court in Execution No. 197172 ordered the issuance of a Writ of attachment.

(b) Mr. A. Rauf has referred the case of Amulya Aatan , and others v. Banku Behari Chatterjee (A I R 1925 Cal. 1668), the case of A. r, P. L. M. Muthiar Chattair v. Chidambaran Chetty and others (A I R 1928 Cal. 680 and the case of Masan Vali Bagas v. Isap Bapuji Patel and others (A 1 It 1939 Boom. 31) In the above two Calcutta cases it was held that in order to constitute reviver of a cause of action, there must be expressly or by implication a determination that the decree is still capable of execution and that the decree-holder is still entitled to enforce it.

On the other hand Mr. Arfin has relied upon an unreported order dated 28th October, 1978 passed in Execution Application No. 54/78 by this Court, in which it was held that issuing of the process by the Court would constitute reviver of the cause of action.

(c) In the instant case it has not been controverted by the learned counsel for the judgment-debtor that this Court had ordered the issuaner, of a process on 25th October, 1972 in Execution No. 197/72 as mentioned hereinabove and, therefore, for the purpose of computing the period o, A limitation, 25th October, 1972 would be taken as the basic date 0fo computing the period of 6 years provided for in the above-quote Article 183 of the First Schedule to the Limitation Act, and since the present execution application was filed on 18th October, 1977. it is within time. I therefore, dismiss the judgment-debtor's above application, but there will be no order as to cost.

The process shall be issued as prayed for by the decree-holder.

Application dismissed.

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