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-- S. 48--Application for execution of decree passed before Law Reforms Ordinance (XII of 1972) - Limitation - Application for execution of money decree (passed on Ist January, 1969) filed on 1st November, 1972, dismissed and consigned to record without execu tion on 2nd March, 1973-On 19th February, 1978 second execution .application filed-Held, period of limitation prescribed in S. 48 prior to amendment by Law Reforms Ordinance (XII of 1972), (i. e., 12 years) apply and second execution application within period of limitation.-[Decree-Limitation].

The State v. Maulvi Muhammad Jamil P L D 1965 S C 681 ; Adnan Afzal,:. Capt. Sher Afza1 P L D 1969 S C 187 and Ghulam Haider v. Mst. Raj Bhari and four others P L D 1973 Lah. 372 ref.

National Bank of Pakistan v. Messrs Hyderabad Tando Fazal Bus Service 1980 C L C 1146 rel.

-- S, 115 (4) read with. O. XXI, r. 23 (2)-Petition in High Court for revision of Additional District Judge's appellate order also rejecting judgment-debtor's objection petition under O. XXI, r. 23(2) & S. 47-Competency of-Suit, out .of which execution pro ceedings arising, instituted and decided before promulgation of Law Reforms Ordnance (XII of 1972) where before rejection of objec tion petition under O. XX1, r. 23 (2) appealable as decree and whereafter also such rejection appealable order under section 104 subsection (1) (ff )-Civil Judge rejection judgment-debtor's objection petition under O. XXI, r. 23 (2)-Judgment-debtor filing petition for revision of Civil Judge's order=Additional District Judge reject ing revision petition-Held, proceedings before Additional District judge obviously, appeal and not revision and therefore against his appellate order revision- in High Court competent.-[Revision (civil)].

Ch. Abdul Rashid and Ch. Muhammad Hussain for Petitioner.

Malik Muhammad Afzal for Respondent. .

Dates of hearing : 4th November, 1981 and 21st February, 1982.

This revision petition is directed against the order dated 8th April, 1981 of the Additional District Judge whereby he had dismissed the revision filed by petitioner against the order dated 18th December, 1980 of Mr. Ata Mohsin, Civil Judge, Lahore, rejecting the objection application filed by the petitioner in execution proceedings.

2. The facts of the case are that a decree was passed -by the Civil Judge, Lahore on 1st November, 1969 for recovery of sum of Rs. 39,546.15 (plus interest and costs of the suit) in favour of respondent National Bank of Pakistan against the petitioner Qasimi Jewellers. The petitioner judg ment-debtor was allowed to pay decretal amount in installments .of Its, 1,000 per month with effect from 1st November, 1969. The petitioner failed to adhere to the payment programme. Accordingly execution application was filed for recovery of entire decretal amount on 1st November, 1972. (It is alleged by the learned counsel for the respondent that the -said first execution application was actually filed on 30tb October, 1972 and it was only registered on 1st November, 1972). The .6aid execu tion application was, however, dismissed on 2nd March, 1973 and was consigned to record, without execution having taken. place. On 19^th February, 1978, second execution application was filed by the respondent bank. On 12th October, f978, the judgment-debtor Qasimi Jewellers filed an objection petition under Order XXI; rule 23 (2), read with section 47, C. P. C. inter alia on the ground that the execution application. was barred by article 175 of Limitation Act as the same had been applied for after lapse of 8 years and that the earlier execution application having been dismissed, the fresh application was not maintainable. A reply dated 25th January, 1979 was submitted by the respondent decree holder, National Bank of Pakistan, controverting the pleas raised in the said objection peti tion on the ground that the decree holder was entitled to file any number of applications within the period of six years as provided in section 48, C..P. C. read with Article 183 of the Limitation Act. The learned Civil Judge by his order dated 18th December, 1980 held that the first execu tion application which had been consigned to record on 2nd March, 1973 without execution having taken place had been filed on Ist November, 1972 which was within the period of three years from the date of the decree and, therefore, objection petition (containing two abovementioned objec tions) was not maintainable and on that ground rejected the said objection petition. The petitioner filed revision against the said order dated 18^th December, 1980 of the Civil Judge, inter alia, on the ground that execution application had been filed after expiry of eight years and was barred by time. At the hearing before the Additional District Judge the finding of the Civil Judge that there was an earlier execution application filed on 1st November, 1972 and dismissed on 2nd March, 1973 was challenged. The learned Additional District Judge, however, found that there was a clear admission in para. 2 of the objection petition of the petitioner that an earlier execution petition had been filed and dismissed and on that ground held that petitioner could not be allowed to raise the contradictory plea which stood falsified by his own admission. On merits of the point raised in the revision itself, he came to the conclusion that the said execution application having been filed within a period of five years of the dismissal of the earlier petition was within the period of limitation prescribed there fore. On this ground he rejected the revision petition of the petitioner by his order dated 8th April, 1981.

3. The main ground raised in this revision against said order dated 8th April, 1981 of Additional District Judge is that the second execution application filed on 19th February, 1978 was barred by time as it was hit by section 48, C. P. C as amended by Law Reforms Ordinance (XII of 1972).

4. Learned counsel for the respondent has raised a preliminary objec tion that the revision having already been filed before and decided by the Additional District Judge, no fresh revision in the High Court is compe tent as laid down in subsection (3) -of section 115, C. P. C. which had been added in the Statute by Law Reforms Ordinance, 1972. I have con sidered the said preliminary objection. In my view, against the said order of Civil Judge an appeal was competent under the law and, therefore, the revision filed before District Court should have been treated and decided as an appeal. The suit out of which the execution proceedings had arisen had been instituted and decided before Law Reforms Ordinance was pro mulgated and under the earlier law contained in unamended C. P. C. rejec tion of an objection petition under Order XXI, rule 23(2) was appealable as- a decree. Even after amendment of the C. P. C. by Law Reform Ordinance, 1972, rejection of an objection petition is an appealable order under subsection (1) ( f ) of section 104, C. P. C. Thus,' in 'any case, an appeal should have been filed and the learned counsel for the petitioner had made an error in filing a revision instead of an appeal. The proceedings before the Additional District Judge were obviously an appeal and not a revision and, therefore, against the said appellate order of Addi tional District Judge, this revision is competent. In this view of the Matter I overrule the preliminary objection and proceed to decide the present case as a revision petition.

5. I now turn to the point raised by tae learned counsel for the peti tioner in this revision. His argument is that limitation of six years for the second execution application as prescribed in amended section 48, C. P. C. is to be computed from the date of the decree sought to be executed and the learned Additional District Judge has erred in considering the starting point of that period of limitation from the date of dismissal of first execu tion application and considered in that light, the second application for execution of decree dated 1st November, 1969 which had been filed on 19th February, 1978 was barred by time. I have considered the point raised. It is no doubt true that the starting point of limitation of six years according to amended section 48, C. P. C., is the date of decree but the further question involved is whether C. P. C. as amended by Law Reforms Ordinance, 1972, which had reduced the period of limitation for any fresh execution application from 12 years to 6 years would apply to a second application for execution of a decree dated 1st November, 1969 or the unamended section 48, C. P. C. according to which limitation was 12 years from date of decree..

6. In ordinary circumstances amendments in procedural law, no doubt, operate with retrospective effect but it is established law that when a substantive right has been acquired by a person on account of operation of the procedural law, then the amendment in the procedural law cannot destroy the said right and it would not operate. with retrospective effect and the old law will be made applicable in that regard. The principle was recognized in case of The State v. Moulvi Muhammad Jamil (P. L D 1965 S C 681), wherein it was laid down that if a statute deals merely with procedure in an action and does not affect the rights of parties, it will be held to apply prima facie to all actions pending as well as future and it is only if it be more than a mere matter of procedure, i. e. it touches a right in existence at the passing of the new Act that the aggrieved party would be entitled to succeed iii giving a successful challenge to retrospective effect of the new law. Reference in this respect is also invited to following observations made by ;their Lordships of the Supreme Court in case of Adnan Afzal v. Capt. Sher Afzal (P L D 1969 S C 187) :-

"Nevertheless, it may be pointed out that if in this process (the process of giving retrospective to a procedural Statute) any existing rights are affected or giving of retrospective operation causes inconvenience or injustice, then the Courts will not even in case of procedural Statute favour an interpretation giving retrospective effect to the Statute."

Relying on the principle enunciated above, the Lahore High Court had, in case of Ghulam Haider v. Mst. Raj Bhari and four others (P L D 1973 Lab, 372.), held that when an appeal had abated much before the promulgation of Law Reforms Ordinance, 1972, abolishing abatement, the opposite party had acquired a valuable right of defeating the claim of legal representatives to be brought on record and, therefore, the said amendment in procedural Statute could not be considered to be retrospective and respondent in that case could not be deprived of said vested right of abatement of appeal against him.

7. The question as to whether litigant who has got a decree from a Court of law, has got a vested right to get the said decree executed and the precise question as to whether 12 years period of limitation as laid dawn in unamended section 48, C. P. C. or 6 .years period of limitation as provided for in amended section 48, C. P. C. would apply in a case in which the decree had been passed prior to enforcement of Law Reforms Ordinance, 1972, directly fell for decision in case of National Bank of Pakistan v. Messrs Hyderabad Tando Fdzal Bus Service (1980 C L C 1146 (K))" In that case it was held that like the right of action by suit, the right to execute a decree is a vested right accrued in favour of a. decree-holder and, there fore, any alteration in the period of limitation for execution of such decrees cannot be ,held to be a matter of mere procedure and the amending statute cannot be given retrospective effect and as such the case will be governed by provisions of section 48, C. P. C. as they stood prior to the amendment. It was reiterated in the said decision that when a person had already invoked the jurisdiction of the Court and obtained adjudication upon a cause of action that accrued to him culminating in decree in his favour, the abridgment of outer, limits of time by the amendment in section 48, C. P. C. affected a vested right to execute the decree and, therefore amen ding law could not be given retrospective, effect. It was further held that since the Legislature had abruptly amended the period from 12 years to 6 years without giving any intervening period for filing of actions under the old law, there was a presumption that the new procedural law reduc ing period of limitation was not meant to be retrospective. The said observations are in complete accord with decisions. of Supreme Court quoted above and I fully agree with them and respectfully following the same I hold that period of limitation as prescribed in section 48, C. P. C. prior to amendment by Law Reforms Ordinance, 1972, applied to said second execution application in this case and that being 12 years, the said fresh execution application was within the period of limitation. Thus though the reasoning of Additional District Judge was erroneous, his conclusion that the said second execution application was not barred by time was correct.

8. In view of the above, there is no substance in this revision and the same is dismissed with costs.

K.M,A, Revision petition dismissed.

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