' By this judgment, I propose to dispose of Civil Revisions Nos. 462/1978 and 463/1978 as these are directed against the same judgment of the Additional District Judge as also of the trial Court.
2. The facts briefly stated are that the petitioners obtained two lots of land measuring 5 kanals 7 marlas and 106 kanals and 9 marlas respectively through an exchange and sale respectively.
Respondents Nos. 1 and 2 and another Muhammad Bakhsh, the predecessor-in-interest of respondents Nos. 3 to 10 instituted two suits for pre-empting the aforesaid transaction of exchange and sale of the parcels of land in dispute. Civil Revision No, 462/1978 has arisen out of the suit that sought the pre-emption of the sale of land measuring 106 kanals and 9 marlas, whilst Civil Revision.
No, 463/1978 has arisen out of the pre-emption suit whereby exchange of 5 kanals 7 marlas was called in question.
3. The suit out of which Civil Revision No, 463/1978 has arisen was dismissed by the learned trial Court. An appeal preferred against the judgment and decree of the trial Court was, however, accepted by the learned District Judge vide his judgment dated 12-4-1960 and the suit of the respondents was decreed. The petitioners preferred a second appeal in the High Court (R. S. A. No, 199/1960) against the above-mentioned decree passed by the lower Appellate Court. During the pendency of this second appeal Muhammad Bakhsh, the predecessor-in-interest of respondents Nos. 3 to 10 died on 3-11-1969 and by order dated 6-5-1974 passed by the High Court the appeal was held abated. After the passing of the aforementioned order by the High Court, the respondents moved an application for execution of the decree passed in their favour. The petitioners filed objections to the execution on which the executing Court framed 5 issues. The one which is the most important and challenged in this revision reads as under :- "Whether the petition is time barred ?"!
' After recording the evidence on the issues framed, the learned trial Court by order dated 17-4-1976 held that the execution petition was within time and consequently rejecting the objections directed the issuing of warrant for possession in respect of the suit property.
4. The suit out of which Civil Revision No, 462/1978 has arisen, was decreed ex parte by the learned trial Court on 28-7-1959. The petitioners filed an application for setting aside ex parte decree. The learned Civil Judge on this application passed a stay order and also directed that the case be kept pending and adjourned it sine die to await the decision of the High Court in the connected case of exchanges of land out of which R. S. A. No, 199/1960 had arisen. After this appeal was held abated by the High Court by order dated 6-5-1974, the respondents filed execution petition regarding this case as well to which execution the petitioners filed objections. These objections were tried together with the objections filed in the other case and were rejected by the learned executing Court by the same order dated 17-4-1976.
5. The petitioners preferred two appeals before the learned Additional District Judge against the order dated 17-4-1976 of the executing Court, who by his single judgment dated 10-4-1978 dismissed the two appeals. Hence the present two revision petitions.
6. In both these revisions the challenge is only in respect of the findings of the Courts below on issue No, 4 which has been reproduced above. That learned counsel for the petitioners in both the revisions made the following submissions :-
(1) The appeal having abated automatically on 2-2-1970 and Article 182 of the Schedule to Limitation Act having been deleted, the execution applications could only be filed within 3 years from the dates of the original decrees and in no case later than 3 years from the date of automatic abatement of the second appeal which took place on 2-2-1970, as Article 181 had become applicable to execution applications.
(2) The reliance placed by the executing Court on A 1 R 1939 P C 68 is not correct, in that there is no ruling on the point in the whole of the volume.
7. On the other hand the learned counsel for the respondents submitted that the orders of the Courts below are wholly unexceptionable as the period of 3 years had to run from the date on which the formal order was passed by the High Court in R. S. A. No, 199/1960, as before the passing of that order the respondents could not file execution petition, a stay having been granted by the High Court in the case out of which Civil Revision No, 462/1978 has arisen and by the trial Court in the case out of which Civil Revision No, 463/1978 has arisen. He further argued that the execution petitions having been filed on 7-6-1974 were within time as section 15(1) of Limitation Act excludes the period during which the execution remains stayed by injunction or an order. As regards the authority relied upon by the executing Court, the learned counsel for the respondent submitted that there is a typographical error of the year of report of the authority cited as it is AIR 1933 P C 68 which is applicable on all fours.
8. In reply the learned counsel for the petitioners only submitted that AIR 1933 P C 68 is distinguishable as the same interpreted Article 182 of the Schedule to the Limitation At which had since been deleted.
9. Having given consideration to the controversy involved I find that the contentions raised on behalf of the petitioners have no force. The only point requiring determination is the date from which the period for filing execution application has to be counted. It is the admitted position that Article 182 of the Schedule of Limitation Act having been deleted by Ordinance XII of 1972 which was promulgated in April, 1972, the period of limitation for filing execution petitions in the cases in hand has to be determined as provided by Article 181 ibid. Now Article 181 provides that an application under this Article can be made within 3 years from the date when the right to apply accrues.
10. Section 15 of the Limitation Act lays down that in computing the period of limitation prescribed for any suit or application for the execution of a decree the institution or execution of which has been stayed by injunction or order, the time of the continuance of the injunction or order, the day on which the injunction was issued or stay order made and the day on which it was withdrawn shall be excluded. The admitted position also being that stay had been granted against the execution by the High Court in R. S. A. No. 1.99/1960, it shall be deemed to have continued and withdrawn only when the formal order was passed by the High Court on 6-5-1974, holding the appeal aforementioned as abated. The execution petitions having been Fled on 7-6-1974, by the conjunctive reading of Article 181 of the Schedule to the Limitation Act and section 15 ibid, it emerges that the petition as regards Civil Revision No, 463/1978 was within time, as the three years from 6-5-1974 expired on 5-5-1977.
11. The same position would obtain as regards the execution petition out of which C. R. 462/1978 has arisen, since the proceedings in that suit had also been stayed by the trial Court pending decision of the appeal by the High Court which had arisen out of the other suit.
12. The case relied upon by the executing Court Khan Sahib Abdullah Asghar Ali and others v.
Ganesh Dass Wig (1) squarely applied to the facts of the present case and has very aptly been applied. In the cited case it was held that when an order is judicially made by an appellate Court which has the effect of finally disposing of appeal, such an order gives a new starting point for the period of limitation and that where there has been an appeal from a decree and the appellate Court has made an order that the appeal has abated, such an order is a final order of the appellate Court within the meaning of Article 182(2) of Schedule I of the Limitation Act, and the period of limitation for the execution of the decree runs only from the date of such order.
13. The contention raised on behalf of the petitioners that the authority aforementioned shall not apply to the present case as Article 182(2) of the Schedule to the Limitation Act has since been deleted, is misconceived inasmuch as the obvious principle laid is that on abatement of an appeal the starting point of limitation for filing an execution application shall be the date of passing of the order, holding the appeal abated.
14. Apart altogether from the above position, as already pointed out above, section 15 in any case would be applicable so as to exclude the period during which the stay against the execution remained operative. The stay' granted in R. S. A. No, 199/1960 only came to an end when order dated 6-5-1974 was passed by the High Court.
' In view of the foregoing discussion I find no merit in these revision petitions and dismiss the same.
There will, however, be no order as to costs in view of the peculiar circumstances of the case. {{FOOT NOTE}}
(1) AIR 1933 P C 68= .142 I C 326 {{FOOT NOTE}}