MAULVI ANWARUL HAQ, J.---A suit filed on 23-7-2000 by respondent No.1 against the petitioners and respondents Nos. 2 and 3 for possession of the suit property was contested and was decreed by the learned Civil Judge, Sialkot, on 20-12-2000. A first appeal filed by the petitioners was heard by the learned Additional District Judge, Sialkot, who dismissed the same on 14-11-2002 but directed respondent No.1 to pay a sum of Rs.25,000 to the petitioners as compensation for structures.
' On 10-11-2005, respondent No.1 filed an execution petition. It was stated that he is ready to pay the said amount of Rs.25000 to the judgment-debtors in instalments. However, later he made a deposit of the said amount on 10-6-2006. On 7-3-2007, the petitioners filed objections, stating that the execution petition is barred by time as it has been filed after 5 years of the passing of the original decree and also because of the non-deposit of Rs.25000 within the period of limitation. The objections were replied. These were dismissed by the learned Executing Court on 13-6-2007. A first appeal filed by the petitioners has been dismissed by the learned Additional District Judge Sialkot on 14-11-2002.
2. Learned counsel for the petitioners contends that notwithstanding the fact that the first appeal was filed against the decree, dated 20-12-2000 and was dismissed, the limitation of three years would start from the date of the original decree. Further contention is that the said amount having been deposited beyond the period of said limitation would render the execution proceedings to be time-barred.
3. I have gone through the copies of the record as noted by me above. The decree, dated 20-12- 2000 was appealed against, which appeal was dismissed on 14-11-2002 and the execution petition was filed on 10-11-2005. I find that there is no averment in the said objections that a stay order was not granted in the said first appeal. However, the learned counsel has contended in the revision that a stay order had not been granted. However, the plea is not supported by any material. Even if it be assumed that the appellate Court had not stayed the execution, nothing turns on the same.
The reason being that after the dismissal of the appeal, which infact was a modification of the trial Court decree inasmuch as a direction was issued to respondent No.1 to pay Rs.25000 to the defendants as value of the structures, the learned appellate Court drew up a decree in terms of order XLI rule 35, C.P.C. It is this decree draw on 14-1-2002 which was to be executed. In the case of Maulvi Abdul Qayyum v. Syed Ali Asghar Shah and 5 others (1992 SCM R 241), the Honourable Supreme Court of Pakistan has observed as follows, at page 246 of the report:-- "It appears that in holding that the period of limitation for execution of the decree commenced from the date of decision by the Appellate Court, the rule that the decree of the Court of first instance, merged into the decree of Appellate Court, which alone can be executed, was not present to the mind of the learned Judge. It is to be remembered that till such time, an appeal or revision from a decree is not filed, or such proceedings are pending but no stay order has been issued, such decree remains capable of execution but when the Court of last instance passes the decree only that decree can be executed, irrespective of the fact, that the decree of the lower Court is affirmed, reversed or modified."
4. So far as the matter of payment of Rs.25000 is concerned, the learned 'Additional District Judge had in fact in a manner of speaking passed a decree in favour of the petitioners/defendants and it was for them to institute proceedings for recovery of Rs.25000 from the respondent. I may further note here that prior, deposit of the said amount was not even made a condition precedent for executing a decree or for getting possession. This being so, the deposit of the said amount after the filing of the execution within three years from the date of the decree would have no adverse effect on the competency of the execution petition. The writ petition accordingly is dismissed in limine. A copy of this order be immediately remitted to the learned trial Court who shall take steps to execute the said decree..