' YAHYA AFRIDI, J.---This Revision petition is directed against the order and judgment dated 2-4- 2009 passed by the learned Additional District JudgeI/Izafi Zilla Qazi, Dir Lower, whereby the revision of the present respondent was converted into an appeal and the judgment and decree dated 18- 3-2008 passed by the learned Civil Judge/Illaqa Qazi, Dir Lower was set aside.
2. The brief and essential facts, which have led to the present petition are that on 6-5-1998, the present petitioner along with Sultan Hakim entered into an agreement to purchase property from the present respondent ("Agreement"). In pursuance thereof certain payments were made by the present petitioner and Sultan Hakim to the present respondent.
3. Certain disputes arose between the parties, which constrained the present petitioner to take legal recourse for the specific performance of the Agreement and in the alternative; there was a prayer for the return of the payment already made to the respondent.
4. The present respondent filed his written statement along with an application under Order VII, Rule 11, Code of Civil Procedure, 1908 ("C.P.C.") contending therein that the terms of the Agreement had been cancelled by a subsequent agreement between the parties dated 9-9-2000 ("Agreement of 2000").
' It would be pertinent to note that Sultan Hakim, the other party to the Agreement, did not make any appearance in the trial proceedings and was proceeded ex parte.
5. The trial court vide its judgment dated 6-12-2004 rejected the plaint of the present petitioner under Order VII, Rule 11(1) of the C.P.C. On the ground that the Agreement could not be enforced as the terms thereof were subsequently cancelled by Agreement of 2000.
' The present petitioner aggrieved of the said decision filed an appeal against the same, which too was dismissed by the appellate Court vide judgment dated 8-3-2006.
6. The present respondent vide application dated 8-3-2008 filed an execution petition against the present petitioner seeking the execution of the decree dated 6-12-2004, whereby the trial Court had under Order VII, Rule 11, C.P.C., rejected the plaint of the present petitioner.
' The executing Court on 18-3-2008 refused to entertain the said execution petition filed by the present respondent stating that the decree passed under Order VII, Rule 11, C.P.C., was not executable.
7. The present respondent aggrieved of the said decision, filed a revision petition before the Additional District Judge/Izafi Zilla Qazi Dir, who firstly converted the revision petition into an appeal and thereafter accepted the same by holding that the decree passed under Order VII, Rule 11 C.P.C., was executable.
8. The impugned order of the Additional District Judge, Dir, dated 2-4-2009 has been impugned in the present revision petition, with an application for condonation of, delay in filing the same.
9. The learned counsel for the petitioner vehemently argued that the decree passed under Order VII, Rule 11, C.P.C., was a decree which was appealable and not executable. He contended that the same had been through a "deeming" clause included in the definition of a "decree" as provided in section 2(2) of C.P.C., only for the purposes of filing of an appeal. He emphasized that even if the petition was time barred, this court ought to exercise its suo motu powers under section 115 of the C.P.C., to correct the jurisdictional error committed by the appellate Court.
10. The learned counsel for the respondent on the other hand argued that the present petition was time-barred and revisional jurisdiction did not provide for any application for condonation of delay under section 5 of the Limitation Act, 1908 ("Act"), On merits of the case, learned counsel contended that the property was owned by the respondent and the petitioner was not handing over the possession of the said property to the present respondent. He also argued that a decree awarded under Order VII Rule 11 C.P.C., was executable, if it determined rights between the parties. He relied upon Farman Ali Dewan v. Munsur Ali (PLD 1962 Dhaka 214).
11. The valuable arguments of the learned counsel for the parties have been duly noted and the record of the case considered.
12. In regard to the period of limitation, the period of limitation having been prescribed under section 115, C.P.C., renders the same as a 'special law' in view of the provision of section 29(2) of the B Limitation Act, 1908 ("Act") and thus the provisions of section 5 of the Act for condonation of any delay are not applicable to revision petitions. Reliance may be placed on the decision of the august Supreme Court in Alladino v. Muhammad Shah (2001 SCM R 286).
13. Now to the legal import of a decree passed on an application under Order VII, Rule 11, C.P.C., a Division Bench of august Supreme Court in a judgment of a case titled Abdul Hamid v. Dilawar Hussain (2007 SCM R 945) held that the judgment of a court passed under Order VII, Rule 11, C.P.C., was a "decree" in fiction alone and did not preclude filing of a fresh suit on the same cause of action in view of Order VII, Rule 13 of the C.P.C. It further held that "... It is also settled law that rejection of plaint has not an adjudication on merit. It is a decree only by fiction, therefore, there is no bar to file a fresh suit."
' Another Division Bench of the august Supreme Court has in a more recent judgment of a Division Bench of the august Supreme Court titled Muhammad Ali v. Province of Punjab (2009 SCMR 1009) varied in its stance taken in its earlier decision in Abdul Hamid's case and has given credence and enforceability to the decree passed in pursuance of a judgment under Order VII, Rule 11, C.P.C. It held that:- "6. We have heard learned counsel and are not impressed by either of the contentions. L the first place an order rejecting a plaint is most certainly a decree in terms of the definition of the expression "decree" contained in section 2(2), C.P.C., which explicitly provides that the aforesaid expression shall be deemed to include the rejection of a plaint. It would, therefore, follow that it would carry the same degree of finality and enforceability unless provided otherwise by law. As such after the expiry of the period of limitation for a second appeal against the order, dated 21-2- 2005 passed by the learned Additional District Judge the order rejecting the plaint acquired complete finality.
' No doubt Order VII, Rule 13 does contemplate that rejection of a plaint shall not of its own force preclude the plaintiff from presenting a fresh plaint. Nevertheless the underlined words are important and clearly indicate that other provisions relating to avoiding multiplicity of litigation and attributing finality to adjudications could not be ignored. For instance if a plaint under Order VII, Rule 11 is rejected on the ground of the relief being undervalued or failure to affix proper court- fee stamps, a fresh plaint could always be presented upon rectifying the defects within the prescribed period of limitation. Nevertheless if the plaint is rejected after proper adjudication as to the non-existence of cause of action or upon the suit being barred by law the findings could operate, as res judicata and would not enable to plaintiff to re-agitate the same question through filing a subsequent suit upon the same cause of action and seeking the same relief. In our humble view, therefore, the question whether a fresh plaint could be presented under Order VII, Rule 13 or otherwise would depend upon the nature of the order passed by the court in rejecting a plaint under Order VII, Rule 11. A somewhat similar view appears to have been taken by this court in Muhammad Saleemullah and others v. Additional District Judge, Gujranwala and others PLD 2005 SC 511."
' In the peculiar circumstances of this case, where there are two judgments of Division Benches of the august Supreme Court on the same matter having variance, if not divergent views, on the issue relating to a "decree" passed in pursuance of a judgment under Order VII, Rule 11, C.P.C., the law of interpretation is that the later in time would prevail over an earlier judgment of the Supreme Court.
' In the circumstances, this court is to follow the subsequent dicta of the august Supreme Court in Muhammad Ali's case, whereby a decree passed in pursuance of a judgment under Order VII, Rule 11, C.P.C., would be a "decree" not only appealable but also executable under the provisions of the C.P.C., in cases where it determines rights of the parties.
' The legal import of this decision is that in cases where rights are determined by a court and which culminate in rejection of the plaint, the same attains "finality and enforceability". Hence the decision of the court under Order VII, Rule 11, C.P.C., can be appealed and enforced as a decree. This Court would, therefore, support and follow the rule laid down in Farman Ali Dewan v. Munsur Ali (PLD 1962 Dacca 214).
' In view of the aforementioned legal position, there is no need for this Court to invoke its suo motu revisional powers, to condone the delay in filing the present petition, and thus to correct or interfere in the judgment passed by the learned Additional District Judge, Upper Dir dated 2-4-2009.
' The present petition being devoid of merit is, therefore, dismissed.