1. ' The point requires determination is of limitation i,e, whether the execution application filed by the decree-holder is barred by time and the admission order of Additional Registrar, admitting the execution application is liable to be recalled.
2. ' The above question has been raised on admitted facts which are as follows.
3. ' The decree-holder obtained decree against the judgment-debtor in Suit No,308 of 1998 of 17-11- 1998 whereas, the execution application was filed on 9-9-2003. The plea of the judgment-debtor was that the execution application is governed by Article 181 of the Limitation Act, which prescribed three years from the date of decree, therefore, the execution application is barred by time.
4. ' I have heard Mr. Kazim Hasan, learned counsel for the judgment-debtor and Mr. Shahid Anwar Bajwa, learned counsel for the decree-holder.
5. ' Learned counsel for the judgment-debtor has convassed before me that the nature of the jurisdiction exercised by this court while trying suit will determine the question involved. His submission was that the nature of jurisdiction exercised by this Court while trying suit is of principal Civil Court of original jurisdiction to support his contention, he referred the observation of Mr. Justice Waheeduddin Ahmed, J (as he then was) in Firdous Trading Corporation and others v.
6. Japan Cotton and General Trading Co. Ltd. PLD 1961 (W.P.) Kar. 565, which reads as follows:-- "It is, therefore, perfectly clear that this jurisdiction is of a special nature and is not the ordinary civil jurisdiction of West Pakistan High Court otherwise there was no necessity of saying, that the Karachi Bench of the High Court of West Pakistan shall have the same original civil jurisdiction for the Civil District of Karachi as was exercisable by the Chief Court of Sindh under section 8 of the Sindh Courts Act, 1926. It will be further observed that original civil jurisdiction in respect of civil suit in Karachi was not conferred on the High Court as a whole as in the case of Calcutta, Madras and Bombay under their letters patent, but only to the Bench at Karachi. The nature of this jurisdiction is further clarified under para.7 of the amendments in Part.A of the Schedule of President's Order No,2 of 1956. In sub-clause (4) of para.7, which replaces the original section 45 of the Sindh Courts Act, 1926, it is provided that all decrees and orders in suits and proceedings wherein the subject-matter in amount or value does not exceed twenty-five thousand rupees, or such sum as the Central Government may by order under the proviso to subsection (2) of section 22 prescribe, passed before the appointed day, by Bench of the High Court of West Pakistan at Karachi functioning or exercising the powers and performing the duties as the principal Civil Court of original jurisdiction shall be deemed for the purpose of execution to have been passed by the District Court of Karachi.
7. It is quite plain that the Karachi Bench of West Pakistan High Court is functioning or exercising the powers and performing the duties as the principal Civil Court of original jurisdiction in the Civil District of Karachi and not ordinary civil jurisdiction of the High Court understood under the letters patent of some High Courts in this sub-Continent."
8. ' His further contention was that the view taken in Firdous Trading Corporation (supra) was considered and approved in Pakistan Fishries Ltd. Karachi and others v. United Bank Ltd . PLD 1993 SC 109. His further contention was that the execution application is governed by the Article 181 of the Limitation Act which prescribed three years for filing of execution application as the decree passed by this Court in exercise of jurisdiction of Principal Civil Court in contradiction with Original Civil Jurisdiction exercised by the chartered High Courts.
9. ' He referred the case of Mahboob Khan v. Hassan Khan Durrani PLD 1990 SC 778, wherein Zafar Hussain Mirza, J. (as he then was) after examining the provisions of Articles 181, 183 and section 48 of C.P.C. Concluded follows:-- "The position that emerges from the above discussion is that, as already stated, the first application for execution of a decree would be governed by the residuary Article 181 and the rest of the applications made, thereafter, will be governed by the six years time limit prescribed by section
48. Although the original purpose underlying section 48, read along with Articles 181 and 182 of the Limitation Act, before the amendment of the law was to provide maximum limit of time for execution of a decree. But in the changed position as a result of Law Reforms Ordinance, the only effect of section 48 would be to provide limitation for subsequent execution applications after the first one. The result would be that if no application at all is made within the period prescribed by Article 181, the execution application made, thereafter, would be barred under the said Article and as such there would be no occasion to avail of the benefits of the extended time provided by section 48, C.P.C. In other words once an application for execution is made within time so prescribed, any number of applications for execution can be presented within the six years period from the date of decree. This construction, in my opinion is the only construction that can be placed on the consequent legal position arising out of the amendments made by the omission of Article 182 and substitution of six years period in section 48, C.P.C. Otherwise the provisions for repeated applications every three years or taking steps in aid of execution provided for in Article 182, having disappeared, section 48 would become redundant and ineffective."
10. ' Learned counsel for the judgment-debtor has also referred the case of Mian Akbar Hussain v. Mst.
11. Aishabai and others PLD 1991 SC 985 to contend that Article 181 of the Limitation Act is applicable to execution application for execution of decree passed by this Court on original side, and referred the following observations:-- "As is obvious from the judgment quoted above while enter taining and trying Civil suits the High Court of Sindh is exercising District Court jurisdiction in contradistinction to the ordinary original civil jurisdiction of the High Court. Article 183 provides a period of limitation of six years for enforcing a judgment, decree or order from any High Court in the exercise of its ordinary original civil jurisdiction. Therefore, it is the nature of jurisdiction exercised by the High Court of Sindh which will determine the applicability of the Articles. In the light of the judgment of the Court quoted above Article 183 cannot be applied. Therefore, either Article 181 or 182 will be applicable. In both the cases the period of limitation is three years. It is not the case of the respondents that the right to enforce the decree arises from a date other than the date o1 decree. Therefore, the execution application should have been filed within a period of three years from the date of judgment decree."
12. ' The facts of the case referred to above are that the learned Single Judge dismissed the execution application filed by the respondent as barred by time, the order was set aside by the Division Bench and the execution application was held to haVe been filed within the period of limitation within six years. The leave to appeal was granted for reinterpretation of Article 183 of the Limitation Act.
13. ' The case of National Bank of Pakistan v. Mian Aziz-ud-Din and 7 others 1996 SCM R 759 on the point was also referred that if no application for execution of a decree was made within the period of three years prescribed by Article 181, any application made thereafter, would be barred under the said Article and no benefit under section 48, C.P.C. Can be availed by the applicant in such a case.
14. ' Conversely, learned- counsel for the decree-holder convassed before me that the execution application filed in High Court is governed by Article 183 of the First Schedule to the Limitation Act which prescribes the period of six years for filing execution application. His further contention was that the jurisdiction exercised by this Court is Ordinary Civil Jurisdiction and referred the case of Pakistan Fishries Ltd. Karachi and others v. United Bank Ltd. PLD 1993 SC 109, wherein the jurisdiction of this Court while trying the suit under the Banking Companies (Recovery of Loans) Ordinance, 1979 was examined and the observation made was that the jurisdiction conferred on the High Court under the Ordinance is a special jurisdiction and while exercising such jurisdiction the High Court bears the fictional character of a Special Court as defined in the Ordinance. It is fundamental rule, that where an enactment creates a new jurisdiction, prescribes the manner in which that jurisdiction is to be exercised and further specifies the remedy, such remedy is exclusive and the party aggrieved of an order made in exercise of that jurisdiction must seek only such remedy and not others.
15. ' Learned counsel for the decree-holder also referred the case of Ahmad Khan v. The Chief Justice and the Judges of the High Court West Pakistan and others PLD 1968 SC 171, wherein the expression 'ordinary original civil jurisdiction' in section 4 of the Court Fees Act with reference to clauses 9, 24 and 25 of the Letters Patent of the Lahore High Court was examined and the following observation was . Made:-- "Speaking with great respect, the mere fact of a matter coming directly before the High Court under a law would not suffice to bring it within the ordinary original civil jurisdiction, however, frequent such occasions may be, if the words in clauses 12 and 13 of the relevant Letters Patent be given their full effect. The ordinary original civil jurisdiction was confined to the trial of suits arising within the local limits of that jurisdiction. The extraordinary original civil jurisdiction was given for the removal and trial of suits pending or falling within the jurisdiction of Courts subordinate to the High Court. Every other jurisdiction of a civil nature, conferred by the Letters Patent would as contended by the learned Attorney-General be best described as special jurisdictions or a statutory jurisdictions, since some of those jurisdiction were to be exercised under existing statutes.
16. In the case of the Lahore High Court, there was no power to receive suits in the ordinary original civil jurisdiction, there being no provision in the relevant Letters Patent in that behalf. The Lahore High Court had testamentary and intestate jurisdiction to be exercised in accordance with law, and matrimonial jurisdiction exercisable under its own law. The jurisdiction of a general nature that it possessed was that conferred by clause 9 described as extraordinary original jurisdiction, which was confined to power to remove and try suits pending before its subordinate Courts.
17. ' On that view, it would appear that the use of the expression `extraordinary original civil jurisdiction' in section 4 of the Court Fees Act is clearly apt to cause confusion. The section read with the two Schedules gives the impression that in the contemplation of the Legislature, which passed the Court Fees Act, with reference to a Court such as the Lahore High Court, its extraordinary original civil jurisdiction covered not only the jurisdiction given by clause 9, but also that conferred by clauses 24 and 25 of its Letters Patent. That assumption cannot be supported on the wording of the Letters Patent itself, but it does not either affect the validity of the charges specifically provided in the Schedules or oblige the Courts to regard matters falling under clauses 24 and 25 of the Letters Patent of the Lahore High Court as falling under the 'extraordinary original civil jurisdiction' conferred on the Lahore High Court by clause 9 aforesaid."
18. ' The above case has no application as this Court has been conferred with the jurisdiction to try the suit under the provisions of amended Article 9 of the Federal Order (15 of 1948) and such jurisdiction has been retained by subsequent Presidential Orders.
19. ' He also referred the term 'ordinary original civil jurisdiction', examined by the Division Bench of this Court in Haji Razak v. Usman and 9 others PLD 1975 Kar. 944, that the word 'original', it can only refer to the jurisdiction of a Court to decide a matter as a Court of the first instance, therefore, this means that a suit decided by this Court is decided in the exercise of its original jurisdiction, just as a Constitutional petition is decided in the exercise of its original jurisdiction, and the view taken in Firdous Trading Corporation's case by Wahiduddin Ahmed, J. Was rejected. The view taken in Haji Razak v. Usman (supra) was not approved by the Supreme Court in case of Province of Sindh v. Haji Razak 1991 SCM R 920 by a Bench of five Judges and the view taken in case of Firdous Trading Corporation v. Japan Cotton and General Trading Co. Ltd. (supra) was approved.
20. ' Learned counsel for the decree-holder also referred the following cases to contend that the Article 183 is applicable to the execution application for execution of a decree passed by High Court:--
(1) Sh. Muhammad Ali v. Messrs China Silk House and another 1985 CLC 679, (2) Mst. Tayyaba Begum v. Gul Rehman and 2 others 1988 CLC 2370 and (3) La11 Zaman v. Safdar Ali Khan 1996 M LD 860.
21. ' In the first case, the effect of amendment in the procedural law was examined and it was ruled that 'the amendment in the procedural law would not operate with retrospective effect so as to interfere with or take away or impair any vested right or remedy in the absence of any provisions to the contrary being provided in the amending law'.
22. ' The relevant facts were that the consent decrees were passed on 11-12-1997, execution applications were filed on 11-10-1968 and second application on 18-12-1968. The respondent raised objection to the execution applications that the same were barred by time. The learned Single Judge upheld the objection of limitation by holding that the applications were barred by time and dismissed the same. In appeal, it was noticed that at the time execution application was filed, the period of 12 years was provided for execution of such decree, subsequently on 14th April, 1972 by the Law Reforms Ordinance, 1972 (Ordinance XII of 1972) inter alia Articles 182, 183 and section 48, C.P.C.
23. Were amended and the period of 12 years was reduced to 6 years and on the basis of these amendments, the learned Single Judge held that the applications were barred by time as the same were filed beyond six years of the passing of order. The appeal was allowed with above observation that procedural amendment will not effect the vested right.
24. ' The last two judgments are of Single Bench and though it has persuasive value and but not binding effect.
25. ' The second contention of learned counsel for the decree-holder was that there was drastic change in jurisdiction of this Court after the promulgation of the West Pakistan Civil Court Ordinance, 1962.
26. ' It may be stated that Sindh Courts Act, 1926 was enacted whereby Civil Courts in Districts of Sindh were established by designating the District Courts as the Principal Court of original civil jurisdiction, so far as the Civil District Karachi was concerned under section 8 of the Act, the Judicial Commissioner Court. Sindh and later on Sindh Chief Court was made Principal Court of original civil jurisdiction. Karachi District ceased to form part of the Province of Sindh and began to he centrally administered under the West Pakistan (Establishment of the Federal Capital) Order (15 of 1948).
27. Article 9 of the said Order provided that the Chief Court of Sindh shall continue to be the District Court for Karachi and shall retain such jurisdiction as it had immediately before the coming into force of the said Order. In other words, the Chief Court of Sindh continued to be the Principal Civil Court of original jurisdiction in relation to Civil District of Karachi. When the Province of West Pakistan was established, Article 7 of the Establishment of West Pakistan Act, 1955 empowered the Governor-General to establish by an order a single High Court for the Province of West Pakistan, pursuant to the aforesaid provision, the Governor-General promulgated the High Court of West Pakistan (Establishment) Order, 1955. Under the provisions of Article 5 of the said Order, the original civil jurisdiction formerly exercised by the Karachi Bench under section 8 of the Sindh Court Act, 1926 was preserved and continued with the result that the Karachi Bench of the West Pakistan High Court continued to he the Principal Civil Court of original jurisdiction for Karachi District. Article 5 thereof reads as follows:-- "Original Civil and Criminal jurisdiction of the Bench at Karachi.--- Notwithstanding anything in this Order or in any other law for the time being in force, the Bench of the High Court at Karachi shall have the same original civil jurisdiction for the Civil District of Karachi and the same criminal jurisdiction and powers of the Court of Session, for the Sessions Division of Karachi, as were exercisable, immediately before the commencement of this Order, by the Chief Court of Sindh under section 8 of the Sindh Courts Act, 1926 (Sindh Act (VII of 1926)."
28. ' Karachi Courts Order, 1956 (Order No,2 of 1956) was promulgated, whereunder, the District Judge and subordinate Courts were established in Karachi. Section 8 of the Sindh Court Act, 1926 was amended and for the words 'and shall be a Court of Session and shall exercise the power and perform duties of a Sessions Judge in Sessions District of Karachi', the words 'in respect of suits and proceedings wherein the subject-matter in amount or value exceeds twenty-five thousand rupees or such sum as the Central Government may by order under the proviso to subsection (2) of section 22. As a result of this order, the original jurisdiction exercised by Karachi Bench upto the limit of Rs,25,000 was entrusted to the newly-created District Court and Karachi Bench to exercise original jurisdiction only in civil over value of Rs .25 , 000 .
29. ' By subsequent Presidential Order No,1 of 1970, such jurisdiction was maintained when the High Court for the Province of Sindh and Balochistan with principal seat at Karachi was created, under sub-Article (2), each new High Court were to be a Court of record and shall have original, appellate and other jurisdiction and such powers and authority in respect of the territories for which it was established as the High Court of West Pakistan, immediately before the appointed day, had in respect of the territories in relation to which it exercised appellate jurisdiction.
30. ' The original civil jurisdiction of this Court in matters exceeding Rs,25,000 in value enjoyed by it under section 8 of the Sindh Chief Court Act was maintained. This jurisdiction was also preserved by the Balochistan and Sindh (High Courts) Order, 1976, (President's Order 6 of 1976).
31. ' The legislative history of Original Jurisdiction of this Court was also examined by the Full Bench of this Court in re: Office Reference in respect of the Civil Courts (Sindh Amendment) Ordinance, 1970 PLD 1981 Kar. 210 and after examining the various enactments including the Sindh Civil Courts Ordinance, 1962 it was held that in suits and other matters in which the value of subject-matter exceed Rs,25,000, this Court continued to exercise the jurisdiction.
32. ' It may be noted that subsequently section 8 of Sindh Courts Act, 1926 has been repealed, but its repeal has no effect on the jurisdiction exercised by this Court.
33. ' In Rimpa Limited and another v. Karachi Metropolitan Corporation 2004 CLC 1797, I have also examined the effect of repeal of section 8 of Sindh Courts Act, 1926 in the following words:-- "Article 5 of High Court of West Pakistan (Establishment) Order, 1955, whereby the original civil jurisdiction of the Karachi Bench of West Pakistan High Court was retained which was exercised by Chief Court of Sindh under section 8 of the Sindh Courts Act, 1926. Such legislation is known as 'legislation by incorporation' which is of common occurrence and is a known mode of legislation in which it is not necessary to set out the whole provision intended to be re-enacted. It sometime happens that one act instead of expressly repeating the word of a section contained in an earlier enactment merely refers to it and by relation applies its provision to some new state of thing created by subsequent enactment. In the instant case, instead of reproducing the entire language of section 8 which was given in Sindh Courts Act, 1926. A mere reference is made for the sake of economy of words; but the true effect of the provision in the Presidential Order, 1955 is as if it is cut- out and pasted here. Such an incorporation makes the section so incorporated as a part of new statute and even the repeal of statute containing the incorporated section does not have the effect of repealing that provision in the statute in which it is incorporated."
34. In the light of above discussions, I am of the view that the jurisdiction exercised by this Court while trying the suit is of principal Civil Court of Original jurisdiction in contradistinction with extraordinary civil jurisdiction exercised by the chartered High Courts. The view taken in Mian Akbar Hussain v.
35. Mst. Aishabai (supra) by the Supreme Court is fully applicable to the present case. Article 181 is applicable to the application for execution of the decree passed by this Court on original side and not the Article 183 of the Limitation Act.
36. ' Next point which requires determination is whether the execution application was filed beyond the period of three years. The decree is dated 14-5-1999, its copy was applied on 4-5-1999 and the same was supplied on 15-5-1999. Execution Application was filed on 9-9-2003 beyond the period of three years as prescribed in the Article 181 of the Limitation Act. As a consequence thereof, the admission order is recalled and the Execution Application is dismissed as barred by time.
37. ' It may also be stated that though the appeal was filed against the decree on 16-6-1999 for the first time, stay was granted on 16-5-2003, in absence of stay within limitation period, the decree- holder cannot get the benefit of section 15 of the Limitation Act which excludes the period of stay for the purpose of limitation.
38. ' Resultantly, the execution application is dismissed as barred by time.