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Civil Revision Application No. 234 of 1985, decided on 23rd February, 1987.

‑‑‑ Ss. 47 & 48‑‑Limitation Act (IX of 1908), Arts. 181 & 183‑ Application for execution of decree‑ ‑Limitation‑ ‑Section 48, C.P.C. provides for a period of six years for making a fresh application for execution of a decree but it does not provide for any period of limitation for previous application and only refers to outside period of limitation otherwise an application for execution of a decree was to be governed by Limitation Act, 1908‑‑Article 181, Limitation Act, 1908 being the residuary Article, governs all such applications which do not fall within ambit of Art. 183‑‑Argument that such applications were to be governed by S. 48, C.P.C., held, was without substance‑ Revision application allowed and execution application filed by respondent dismissed as time‑barred.

Yeshwant Deorao v. Walchand Ramchand A I R 1951 S C 16; Govindan v. Demodaran and others A I R 1952 Tr. C. 269; Ram Ranbijaya Prasad Singh v. Kesho Prasad Singh A I R 1938 Pat. 401; Pakistan Industrial Development Corporation, Karachi v. Aziz Qureshi 1979 C L C 16 and Law of Limitation by K.J. Rustumji (Fifth Edition) 1653 ref.

Shafaat Hussain for Applicant.

J.H. Rahimtoola for Respondent.

Dates of hearing: 4th and 10th December, 1986

This revision application has been filed by applicant Hassan Khan Durrani after his appeal filed against the order of VIIth Senior Civil Judge, Karachi, dated 29‑4‑1980 rejecting his objections filed against execution application No.13 of 1976 in Suit No.235 of 1969, had been dismissed by the learned IIIrd Additional District Judge West. Karachi, vide Judgment dated 2‑10‑1985.

2. The brief facts giving rise to this revision application are, that respondent Mehboob Khan had filed a suit for specific performance of a contract in respect of sale of immovable property situated in North Nazimabad, Karachi. The suit was later compromised on 10‑1‑1970 and according to the terms of the compromise the respondent was given an option to pay to the applicant a sum of Rs.14,000/‑ whereafter he was to become sole owner of the property in the suit. In the alternative an option was also given to the applicant to become owner in respect of half of the property on payment of Rs.23,000/‑ to the respondent. It was further provided in the compromise that in case of default by either of the parties to exercise such option on or before 31‑3‑1971 the property would be sold and the sale proceeds after deducing the expenses would be disbursed as follows:‑

(a) The applicant would be paid a sum of Rs.14,000/‑.

(b) The remaining amount would be paid to the respondent.

Thereafter, neither party exercised its option according to the above terms or took any further steps to enforce the compromise. However, after a lapse of more than five years the respondent on 12‑2‑1976 filed an application for execution of the compromise decree, inter alia, praying for sale of the property through court and payment of the sale proceeds to him after disbursement of Rs.14,000/‑ to the applicant.

3. The applicant after service of notice of application filed objections under section 47, C.P.C. one of such objections being that the execution application was time‑barred. The learned trial Judge however, overruled the objections of the applicant holding that the decree was executable and consequently ordered that the property be sold and its proceeds be disbursed in terms of the compromise. Aggrieved by such order the applicant filed appeal which was dismissed by the learned IIIrd Additional District Judge, Karachi as aforesaid and hence the revision application.

4. While dismissing the objections, the learned appellate Court held that the provisions of Article 181 of the Limitation Act were not attracted to the application for which the period of limitation was prescribed by section 48 of the Civil Procedure Code. The object, according to him behind the amendments introduced through Law Reforms Ordinance, 1972 in the Limitation Act and Section 48 of the Civil Procedure Code was to do away with the necessity of making successive execution applications by the decree holder to keep the decree alive and to make filing of only one application necessary within the period prescribed under Section 48 of the Code. It was consequently held that Article 181 of the Limitation Act was not applicable but section 48, C.P.C. was which provided for a period of six years for filing an application for execution of a decree, and therefore, the execution application filed by the respondent was within time.

5. I have heard Mr. Shafaat Hussain, learned counsel for the applicant and Mr.J.H. Rahmitoola learned counsel for the respondent.

6. The contention of Mr. Shafaat Hussain has been that the execution application, even if otherwise maintainable, was miserably time‑barred as admittedly the same had been filed beyond a period of three years as provided by Art. 181 of the Limitation Act. The applications for execution of decree passed by the Civil Court other than those passed by a High Court, etc. according to the counsel, are now to be governed by Article 181 of Limitation Act, after the omission of Article 182 therefrom, Mr. J.H. Rahimtoola on the other hand has completely supported the view taken by the learned Additional District Judge by arguing that after omission of Article 182 from the Limitation Act, the period of limitation for filing execution applications is purely to be governed by section 48 of C.P.C. which provides for a period of six years and not by Article 181. Admittedly if the application filed by the respondent is to be governed by Art. 181, the same would be time‑barred.

7. There appeared to be no contest on the point that before Article 182 was omitted from the Limitation Act, by the Law Reforms Ordinance, 1972, applications for execution of a decree or order passed by any Civil Court other than a High Court etc. were generally governed by Article 182 of the Limitation Act. The period of limitation provided by this Article was three years which was to be reckoned from the time as provided in column 3 thereof in the schedule to Limitation Act. Section 48 of the C.P.C. as it originally stood then provided for a period of twelve years within which a fresh application for execution of a decree could be presented before the court. Besides these provisions there was Article 183 of the Limitation Act which provided for a period of twelve years for execution of Judgments, decrees or orders passed by the High Court etc. However, we are not concerned with Art. 183 at present. Be that as it may, but a number of changes was introduced by the Law Reforms Ordinance, 1972 as Article 182 was omitted from the Limitation Act and the period of twelve years provided by Art. 183 for execution of Judgments, decrees or orders of a High Court, etc. was reduced to six years. Changes were also introduced in Section 48 of the C.P. Code and the period of limitation provided therein was reduced to six years.

8. The question which arises for determination now is, whether an application for execution of a decree passed by the Civil Court which was originally governed by Art.182 of the Limitation Act is now to be governed by Article 181 which is the residuary Article of only Section 48 of the C.P.C. Article 181 provides for a period of limitation of three years for applications for which no period of limitation is provided elsewhere in the schedule or by section 48 of the Code of Civil Procedure, 1908. The time from which this period would begin to run, according to column 3 of the schedule, is to be reckoned from the date when the right to apply accrues. Section 48 of the C.P. Code on the other hand provides as follows:‑

1148. Execution barred in certain cases.‑‑(l) Where an application to execute a decree not being a decree granting an injunction has been made, no order for the execution of the same decree shall be made upon any fresh application presented after the expiration of (six) years from‑‑

(a) the date of the decree sought to be executed, or

(b) where the decree or any subsequent order directs any payment of money or the delivery of any property to be made at a certain date or at recurring periods, the date of the default in making the payment: or delivery in respect of which the applicant seeks to execute the decree.

(2) Nothing in this section shall be deemed‑‑

(a) to preclude the Court from ordering the execution of a decree upon an application presented after the expiration of the said term of (six) years, where the Judgment‑debtor has, by fraud or force, prevented the execution of the decree at some time within (six) years immediately before the date of the application; or

(b) to limit or otherwise affect the operation of Article 183 of the First Schedule to the Limitation Act, 1908.

A bare reading of sub‑section (1) of Section 48 shows that where an application to execute a decree has been made, no order for the execution of the same decree can be made upon a fresh application presented after the expiration of six years from the date, as indicated by the Section. Sub‑section (1) of section 48, therefore, clearly indicates that it envisages more than one application and further bars a fresh application made after the expiration of a period of six years. Furthermore, barring decree for grant of injunction it appears that all other decrees are to be governed by Section 48. Besides that the section provides for a period of limitation for a fresh application which may be filed for execution of a decree but it does not provide for a period of limitation for any previous application in this behalf. Article 181 which is a residuary Article relates to applications for which no period is elsewhere prescribed in the schedule to the aforesaid Act. Reading together of all these provisions, therefore, indicates that after deletion of Art. 182 from the Limitation Act, there is no other provision in the Limitation Act specifically providing for a period of limitation for execution of a decree except that contained in Art. 183. Section 48 of the Code of Civil Procedure no doubt provides for a period of six years for making a fresh application for execution of a decree, but the scope of the section appears to be limited as it does not provide for any period of limitation for any previous application. Consequently it appears that all such applications for execution of a decree which do not fall within the purview of Art. 183, are to be governed by the residuary Art. 181.

9. There are precedents on the point which may also be referred to with great advantage. In Yeshwant Deorao v. Walchand Ramehand (A I R 1951 S C 16), the Supreme Court of India while referring to Articles 181 and 182 of the Limitation Act and section 48 of the C.P.C. observed that although these provisions are to be read together but they are independent or parallel provisions, different in their scope and object. In Govindan v. Demodaran and others (A I R 1952 Tr.C. 269), it was held that the application of section 48, C.P.C. is not attracted to a case where there has been no previous application for execution of a decree. In Ham Hanbijaya Prasad Singh v. Kesho Prasad Sing (A I R 1938 Patna 401) it was held that section 48 C.P.C. provides a maximum period during which the application for execution could be taken out but the period from which limitation would run should be the period provided by the Limitation Act. Iii Pakistaii Iridustrial Development Corporation, Karachi v. Aziz Qureshi 1979 CLC 16, it was held by a learned Single Judge of this Court that after omission of Article 182 from the Limitation Act by the Law Reforms, Ordinance, 1972, an application for execution of a decree passed by a Civil Court other than a High Court etc. is now to be governed by the residuary Article 181 of the Limitation Act. It was further observed in that case that section 48 of the Civil Procedure Code only provides for an outside period within which an application for execution of a decree could be filed. Reference may also be made to the Law of Limitation by K.J. Rustumji (Fifth Edition) where at page 1653 the author comments:

"Article 182 is not exhaustive of applications for execution. So, if such application does not, from whatever cause, fall within Article 182, it would be governed by the residuary Article 181. The true criterion is to determine whether any of the seven starting points specified in column third of Art. 182 is applicable to a particular application for execution, if none of them is (under the circumstances) applicable, in such a case, the appropriate Article to apply is 181.

10. The consensus of these authorities clearly is that section 48 of the C.P.C. only refers to the outside period of limitation but otherwise an application for execution of a decree is to be governed by the provisions of the Limitation Act. Art. 181 being the residuary Article, therefore, governs all such applications which do not fall within the ambit of Art 183. The argument of Mr. J. H. Rahimtoola that such applications are to be governed by Section 48 of the C.P.C. appears to be without substance. In fact section 48, C.P.C. does not provide for any period of limitation within which the decree‑holder must first apply for execution of a decree.

The upshot of the entire discussions that this revision application is allowed and the Judgment passed by the learned IIIrd Additional District Judge (West), Karachi, dated 2‑10‑1985 is set aside and the execution application filed by the respondent is dismissed as time‑barred. The parties are left to bear their own costs, in view of the questions arised in this revision application.

S.Q./H‑16/K Application dismissed.

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