' MALIK MUHAMMAD AQIL AWAN, J.---This Constitutional Petition bearing No,C.P. D-669 of 2006 is filed on 24-4-2006 against the Revisional order, dated 14-3-2006 passed in Civil Revision No,51 of 2004, where under revision petition was dismissed by learned District Judge, Karachi East.
2. The brief facts of the case are that petitioner's father (since deceased) had filed the suit for recovery of possession, injunction and mesne profits on 1-5-1991 against the father of respondents (since deceased) in respect of Plot No,45, FS-20, Model Colony Karachi.
3. The suit was contested and ultimately decreed on 28-4-1994 against which respondents filed a Civil Appeal No,126 of 9194 which to was dismissed earned IXth Additional District Judge East on 11- 2-2005. The petitioners then filed Execution Application on 12-12-1998 and to resist this Execution Application, respondents filed application under section 12(2), C.P.C. The learned Executing Court after hearing the parties, dismissed the application under section 12(2), C.P.C. And consequently allowed the Execution Application by ordering issuance of writ of possession on 9-4-2000.
4. However, the possession could not be obtained by the decree holder as in the meanwhile on 12- 3-2004 the respondents moved a miscellaneous application under section 3 of the Limitation Act, praying for dismissal of the Execution Application being barred under Article 181 of Limitation Act.
The petitioners filed Counter-affidavit pleadings therein that since the decree passed by the original Court had been challenged before the appellate Court by way of appeal which was dismissed on 11-2-1996 therefore, decree of original Court of Civil Judge merged into decree of appellate Court and as such limitation period would commence, to file Execution Application from the date of decree of the Appellate Court. The learned Executing Court did not agree with the contention and allowed the application vide its order, dated 29-5-2004 which was called in question by the petitioners in Civil Revision No,51 of 2004 but the said revision was also dismissed.
5. It is important to note that Executing Court had allowed the execution application on 10-3-2000 after hearing the objections of the respondents and had issued writ of possession in consequence thereof on. 9-4-2000. Whereas the application under section 3 of the Limitation Act was filed on 11- 3-2004. The main contention before the Revisional Court, raised on behalf of petitioners was that after allowing the Execution Application, Executing Court had become functus officio and could not recall its earlier order, under, which the execution application was allowed. Secondly very application under section 3 of the Limitation Act having been filed on 11-3-2004, being itself governed under Article 181, was hopelessly time barred and on such score was not entertain able.
The third contention of the petitioners was that time for filing Execution Application would commence from the date of appellate judgment/order even if the impugned decree is not stayed by the appellate Court and under the doctrine of merger, it is the appellate decree which is executable whether the original decree is modified or not.
6. That on behalf of respondents first contention was since the decree in appeal was not suspended and mere filing of appeal against the same would not amount to stay of the original decree therefore, the time to file execution would commence from the date of the original decree and not the appellate decree and as such the same being governed by Article 181 of the Limitation Act, was barred by time. The second raised on behalf of the respondents was that the execution Court despite after allowing the Execution Application, under the principle of locus poenitentiae would have power to recall illegal order and placed reliance upon the case of Shaaban and others v. Mst. Shamim Akhtar and others, 2005 SCMR 1707.
7. That the Revisional Court after hearing the parties came to the conclusion that although the decree of the trial Court had merged into the decree of appellate Court but the time to file execution application would commence from the date of the decree of original Court particularly when the appellate Court had not suspended the operation of the decree appealed against.
According to the revisional Court, there was no reason as to why the petitioners did not file execution application when there was no legal bar to do so because no stay had been granted by the appellate Court. On the second point revisional Court relying upon the case of Engineer In Chief Branch through Ministry of Defence v. Jalaluddin, PLD 1992 SC 207, came to conclusion that Court has the power to recall an order which was illegal because perpetual rights cannot be conferred on the basis of an illegal order. It was further held that the bar of limitation does not operate against the void order and relied upon the case of Land Acquisition Collector v. Sarfraz Khan, PLD 2001 SC 514. In this view of the matter, the learned Revisional Court dismissed the revision vide order, dated 14-3-2006 which has been challenged before this Court in the Constitution Petition and this petition remained through out at the stage of Katcha Peshi. One diary dated 27-11-2008 shows that after hearing arguments, matter was reserved for orders and the diary dated 13-12- 2008 shows that in view of non-confirmation of Mr. 'Justice Qamaruddin Bohra, the order was not passed and the office was directed to fix the matter according to roster.
8. We have heard both the learned counsel for petitioners as well as respondents at length.
According to us, the main issue to be resolved in this petition, is as to what is the limitation period for filing of execution application and since when it will commence wiz., either from the date of original decree or from the date of appellate decree (even if original decree neither suspended nor ultimately modified). Secondly the order of the Executing Court being appealable, whether through " miscellaneous application on any ground Executing Court was competent to recall its earlier order under which the Execution Application was allowed, when such miscellaneous application was filed after .About four years of such allowing of Execution Application..
9. That to resolve both the points, in this petition, we would first take up the question of limitation for filing of the execution application in order to see as to whether the execution application was filed within time or it was time barred.
10. We express our great dissatisfaction on the appreciation of legal position by the learned Revisional Court because case-law cited before the Revisional Court, the same precedents are cited before us. Had the Revisional Court given serious thought to the case law relied upon before it by the petitioners, the result would have been otherwise. To begin with, we .First take up the case of Moulvi Abdul Qayyum v. Syed Ali Asghar Shah, reported in 1992 SCM R 241. The Revisional Court has noted and appreciated this judgment of Hon'ble Supreme Court in para.10 of its judgment but in a very cursory manner. The facts of Abdul Qayyum's case are that trial Court had decreed the suit on 27-4-1981. Appeal against the same was dismissed on 18-10-1981. Revision made before High Court met the same fate under judgment and decree of High Court, dated 18-11-1986. On 5-1-1987 execution application under Order XXI, Rule 11, C.P.C. Was filed which was resisted by the judgment debtor that the execution was barred by time. Executing Court overruled the objection against which order, an appeal was filed which was dismissed by the learned District Judge, consequently in revision High Court up-held the objection of the judgment-debtor in following words:-- "As no stay order was issued during the pendency of revision but before the first appellate Court stay order was issued therefore, respondent/plaintiff was to file an application within a period of three years as provided under Article 181 of the Limitation Act, from the date when the appeal of the petitioner/defendant was dismissed by the learned District Judge Mansehra on 19-10-1981. The record shows that the execution application was filed in the Court of learned Civil Judge on 5-1- 1987 which is beyond the period of limitation of three years is time barred."
11. The sole question cm which leave was granted by the Hon'ble Supreme Court was whether the limitation would start from 18-10-1981 when the appeal of the respondents confirming the decree of the trial Court was dismissed or when the revision filed by the predecessor of the respondents against the same order before the High Court was dismissed vide judgment, dated 18-11-1986 in other words whether the application for execution moved on 17-1-1987, within two months of the decision of the revision was entertain able. On this sole ground leave was granted, appeal was allowed and order of the High Court was set aside and it was inter alia held by reproducing the Article 181 of the Limitation Act, at page 245 of the judgment that period of three years would commence from the date of accrual of right to apply for execution but when such right arises, this Article is silent. Supreme Court says the question requiring determination in this case is whether the period of limitation would start from the date of decree of the appellate Court (in which judgment of trial Court remained under suspension) or the one passed by the High Court in revision (where no such suspension of the judgments of both the Courts were ordered). The Hon'ble Supreme Court said while commenting upon the judgment of Lahore High Court "It appears that in holding that the period of limitation for execution of the decree commenced from the date of the decision by the Appellate Court, the rule that the decree of Court of first instance, merged into decree of Appellate Court, which alone can be executed, was not present in 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." It was also held that the merger is for limited purpose of computation of period of limitation for execution of the decree. It was further observed "Another issue before us is, whether the rule of merger which is usually regarded as an attribute of appellate jurisdiction can be extended to the revisional jurisdiction and the decree of the Revisional Court modifying or affirming the decree of the lower Court furnishes starting point of limitation under Article 181."
' While replying this question Supreme Court held "Thus in a way revisional jurisdiction partakt., of appellate jurisdiction" the Hon'ble Supreme Court concluded in para.9, these judicial announcements leave no room for doubt and for the purpose of execution rule of . Merger equally applies to the decree passed in exercise of revisional jurisdiction. When Article 181, unlike Article 182 which has disappeared from the statute book, does not refer to decree of the Appellate Court or Revisional Court but anchors the commencement of period of limitation on the accrual of right to apply and such right legitimately arises when revision against the decision of the lower Court is in one way or the other disposed of.
12. That notwithstanding, any other judgment only the case of Moulvi Abdul Qayyum, referred supra brings us to hold that rule of merger is not restricted to appeal but is extended to the remedy of revision also provided such appeal or revision is decided on merits. Secondly, the rule of merger is meant for computation of the limitation period for filing of the execution application, whether the impugned judgment before Appellate Court and Revisional Court remained under suspension or not or whether the judgment of the trial Court was affirmed or modified by the appellate or revisional Court.
13. Since in the present case no revision was filed therefore, this case stands at a better footing than the case of Moulvi Abdul Qayyum discussed supra. In the case in hand, suit was decreed on 28-4-1994 and the appeal was dismissed by the appellate Court on 11-2-1996 and the execution application was filed on 12-12-1998. Relying upon the rule of merger, we hold that execution application was well within time notwithstanding the fact that Appellate Court had not stayed the execution nor suspended the judgment of the trial Court.
14. That on the same point there is a judgment of Division Bench of. Hon'ble Supreme Court in the case of Sardar Begum v. Ch. Muhammad Saeed, 2001 SCM R 1636, the Hon'ble Supreme Court without dilating upon as to whether the appellate or revisional Court had stayed the decree challenged before them straightaway observed in para.7 of the judgment "we therefore, dispose of this appeal with the observation that the execution petition for the execution of decree, dated 20- 12-1980 was not barred by time on account of the principle of merger". It may be appreciated that the judgment of Supreme Court against the decree, dated 20-12-1980 was finally passed on 11-3- 1990 and the execution application was held to be within time relying on the same doctrine of merger. Therefore, we are of the considered view that the execution application filed on 12-12-1998 was well within time.
15. That the next incidental question which has perturbed our mind is that whether on the basis of miscellaneous application purported to be filed under section 3 of the Limitation Act, on 12-3-2004 with the prayer to dismiss execution application which stands allowed and finally disposed of on 10-3-2000, could be allowed when admittedly the order of the Executing Court was appealable against which admittedly no appeal was filed. Furthermore Article 181 of the Limitation Act, being residuary Article would apply on any or all applications for which specifically no limitation period is provided. Under Article 181, the limitation period would commence with effect from the date when the right to apply accrues. In this case execution application having been disposed of on 10-3- 2000, the right to apply would accrue on 12-12-1998 when execution application was filed or at the most on date of disposal, therefore, the very miscellaneous application under section 3 having been filed on 12-3-2004 was hopelessly time barred. It is a fantastic case of misuse of authority on the part of learned Executing Court who has set aside a lawful order passed on execution application filed within time on a time barred application. The language of section 3 of Limitation Act, if perused, shows clearly that it is the date of application when filed, is to be taken into consideration and not after its disposal. Therefore, section 3 is reproduced herein below:-- "(3) Dismissal of suit, etc., instituted, etc., after period of limitation.---Subject to the provisions contained in sections 4 to 25 (inclusive), every suit instituted, appeal preferred, and application made, after the period of limitation prescribed therefor by the First Schedule shall be dismissed, although limitation has not been set up as a defence.
Explanation.--A suit is instituted, in ordinary cases, when the plaint is presented to the proper officer; in the case of a pauper, when this application for leave to sue as a pauper is made, and, in the case of a claim against a company which is being wound up by the Court, when the claimant first sends his claim to the official liquidator."
16. The bare perusal of the section shows that it is the duty of the Court to see that every suit, appeal and application whether is within limitation or not at the time when suit instituted, appeal preferred and application made. Here in this case, the Executing Court has done quite converse to the requirements of law, it has appreciated the period of limitation meant for filing of, execution application after about four years of its decision allowing the Execution Application on one hand and on the other hand, absolutely failed to appreciation that the very application being made on 11-3-2004 with the mala fide intention to deprive the Decree Holder from the benefits of decree which has been passed in this favour on 284-1994 and confirmed in appeal, on 11-2-1996, failed to see as to whether the same was within time or of out of time or otherwise maintainable under law.
Such approach on the part of Executing Court is not less than exercising of the powers in violation of the law amounting to abuse of power and authority.We therefore, hold that the very application, dated 12-3-2004 being hopelessly time barred, the order passed thereon where under disposed of execution application on 10-3-2000 was dismissed as time barred, is without lawful authority and void ab initio. The revisional Court having not shown any better approach than that of the approach of the learned Executing Court, would not improve status of the impugned order of the Executing Court merely for the reason that it was confirmed by 'the Revisional Court.
17. That since the order of the Executing Court where under execution application was allowed, was appealable therefore, such a time barred application under section 3 of the Limitation Act, amounted to nothing but to circumvent the law and as such was not maintainable.
18. The connected issue with the present question is that Executing Court after having allowed execution application on 10.3-2000, had become functus officio and the power of Executing Court remained limited to see that the decree is satisfied in the light of order, dated 10-3-2000 whereunder the application was allowed. Question arises that a Court, which becomes functus officio, whether 'can recall its owns order on a miscellaneous application which itself is not maintainable in law on any ground, particularly when such order of the Court is appealable. We are of the considered view that such miscellaneous application was not maintainable.
19. We are fortified in our above view by the case of Muhammad Azhar Khan v. Assistant Commissioner, Toba Tek Singh, 2006 SCM R 778 R.782 Para.9, the Hon'ble Supreme Court has held "It is to be noted that once the appeal was not filed in time before the Appellate Authority how the writ or revision petition was competent because before approaching the High Court for redressal of the grievance by invoking its constitutional jurisdiction under Article 199 of the Constitution, it was incumbent upon the respondents to have availed alternate remedies according to law". We are mindful of the fact that the respondents had not filed constitutional petition but the miscellaneous application which can at the most be named as review petition. But the principle enunciated by the Hon'ble Supreme Court in very such applicable on the case in hand that the order being appealable and no appeal having been filed against the same, no review petition was competent.
We are also of the view that the remedy of review is a substantive right like that of remedy of appeal and unless it is shown that under the relevant statute remedy of review was provided against the order of the Executing Court where under execution petition was allowed, the same powers could not have been exercised to review its earlier order where under execution petition was allowed.
20. The rule of locus poentientiae which is relied upon by the Revisional Court to support the proposition that no perpetual rights are conferred under illegal order, although there is no cavil with such proposition but, what is to be seen, is that under what circumstances such proposition is being applied. The case law cited by the Revisional Court in this regard is that of Engineer In Chief Branch through Ministry of Defence v. Jalaluddin, PLD 1992 SC 207. The reliance so placed in our view is absolutely misplaced under the circumstances of the case. Because in the cited case matter was pertaining to service laws and the beneficiary of the illegal order was a civil servant, which was passed in his favour by the departmental authority. Ordinarily in the judicial matters as complete hierarchy with remedies to the general litigant public in the shape of appeal, revision, review and remedy of constitutional petition is provided and as such against judicial order such principle is not applied. On the contrary there is no dearth of case-law where under it has been held that remedy of review, is a substantive right like that of appeal and such remedy can not be invoked unless provided under the relevant lay. Ordinarily according to rule of locus poenitentiae, where under an authority passing an order can recall the same unless it is acted upon, is subject to three exceptions which are very common in its nature against such rule and i,e, the order must not be obtained by its beneficiary through fraud or misrepresentation, secondly it must not be passed by incompetent authority and thirdly it must not be passed in Violation of specific provisions of the law.
21. Therefore, the reliance of the learned Revisional Court on such judgment was absolutely uncalled for, for the reason that learned Revisional Court has neither perused section 3 of the Limitation Act nor has appreciated in its true prospective the case of Moulvi Abdul Qayyum v. Syed Ali Asghar Shah supra. Had the learned Revisional Court perused section 3 of the Limitation Act, it would have found that it is the duty of the Court to see whether the "cause" being brought before the Court is within time or out of time. Such action do not apply on the "cause" which has already been decided and thereafter it falls within the jurisdiction of appellate or Revisional Court to see as to whether original Court had complied with section 3 of the Limitation Act, or not. The Revisional Court had also not appreciated the length of time after which the application under section 3 was made which was in itself barred under the residuary. Article 181 of the Limitation Act.
22. The reliance by the Revisional Court on the case of Muhammad Mazhar v. Qaiser Ali Khan, reported in 2003 SCM R 436, was improper because it was distinguishable case as in that case Supreme Court has held that decree was finalized on dismissing of first appeal by High Court on 15-10-1997 and during pendency of the appeal status-quo was operating and such execution application filed on 2-3-1998 was within time. In view of the facts mentioned above, the case relied upon do not advance in any manner plea of respondents, with regard to limitation against the date of filing of Execution Application, in the present case.
23. The reliance of the Revisional Court on the case of Land Acquisition Collector v. Sarfraz Khan, PLD 2001 SC 514 is also out of context, wherein the proposition was laid down that no limitation runs against the void order. One fails to understand as to what is the relevancy of this judgment to be cited in the facts and circumstances of this case. The learned Revisional Court has further placed reliance on the case of Nazakat Ali v. WAPDA, reported in 2004 SCM R 145, which is a service matter and the proposition relied upon by the Revisional Court is that once the period of limitation starts to run it can not be stopped. Again we will say with respect to the learned Revisional Court that neither there is any cavil with the proposition advanced ,nor this proposition was applicable to the facts of the case, in hand as we have already stated above purposely we have not referred the case-law cited on behalf of respondents on the point of doctrine of merger arising out of an application under section 12(2), C.P.C., as that principle was to determine as to which is final Court before which an application under section 12(2), C.P.C. Can be filed, so therefore, same being irrelevant and absolutely out of context, so far the facts of this case are concerned, has not been adverted with.
24. Before parting with this judgment we were informed that the decree holders are still deprived of the relief's/benefit arising out of the decree, dated 26-4-1994 and Execution Application itself for execution of such decree was allowed on 10-3-2000 and in pursuance of the same the writ of possession was also issued. In this view of the matter, we would direct the Execution Court to complete the process of satisfaction of the decree within 90 days with police aid if so required without any further notice to J/D, from the date,of communication of this order and report the compliance of such satisfaction to the M.I.T-1 of this Court within seven days from the date of complete satisfaction of the decree and in case of failure to do so, the reason thereof be communicated.
25. These are the reasons for allowing the petition and setting aside both the orders of the subordinate Court, dated 29-5-2004 passed by the Executing Court in Execution Application No.11 of 1998 and order, dated 14-3-2006 passed in Civil Revision No,51 of 2004, arisen out of the order of Executing Court.