' This execution application was filed in this Court on 28-2-1974 by the decree-holder for execution of the decree passed on 6-5-1959 in Suit No, 965 of 1953 against the judgment-debtors. It is mentioned against column No, 5 in the execution application that the judgment-debtors have deposited in Court a sum of Rs, 1,70,000 on different date towards the decrial amount. Against column No, 9 total amount for which the execution application was filed is shown as Rs, 1,09,182.4-0 plus costs of execution and future interest. Against column No, 11, the mode in which the assistance of the Court is required is given as under :- "By attachment of the right, title and interest of J. Ds. In plot of land bearing plinth No, C-10/(E K) measuring 2357.5 Sq. Yds. Situate at Thole Produce Yard of K. P. T. Together (with superstructure standing thereon under/O. 21, R. 54, C. P. C."
2. By order dated 21-2-1977, this Court ordered issuance of notice to the judgment-debtors subject to all just exceptions particularly to the question of limitation. As the Judgment-debtors could not be served in the normal course, an application under Order V, rule 20, C. P. C. Was moved on 30-1- 1978 on behalf of the decree-holder for an order by substituted service, which was granted by the Additional Registrar on 13-9-1978. After publication of the notice of the execution application, Mr. Abdul Sattar Memon, Advocate filed vakalatnama on 28-2-1979 on behalf of Javed Ishaque, one of the legal representatives of Haji Muhammad Ishaque, a partner of the judgment-debtors.
Thereafter objections to the execution application were filed on 5-9-1979 by Javed lshaque.
3. By order dated 22-9-1979 of this Court, the judgment-debtors were granted one month's time to furnish security of the decretal amount in terms of Order XXI, rule 24-A, C. P. C. As security was not furnished, by my order dated 23-8-1980, the objections, except the question of limitation, were dismissed. The only point which remains for decision in this execution application is the question of limitation.
4. It may be mentioned that this is the second execution application seeking execution of the decree. Earlier, the first execution application was filed in this court on 29-8-1960 which is numbered as Execution Application 72 of 1960, prayer has been made for execution against other movable and immovable properties of the judgment-debtors. The present execution application was filed after the decree-holder came to know that the judgment-debtors were selling some other property belonging to them.
5. According to the learned counsel for both the parties Article of the Limitation Act applicable in the present case as Article 183. Article 183 of the First Schedule to the Limitation Act, 1908 is reproduced here :- {{TABLE}} "Description of Period of Time from which period begins suit Limitation to run.
183-To enforce a judgment, decree or order of any High Court in the exercise of its ordinary originl civil jurisdiction, or an order of the Supreme Court. Six years When a present right to enforce the judgment, decree or order accrues to some person capable of releasing the right-Provided that when the judgment decree or order has been revised, or some part of the principal money has been paid, or some acknowledgment of the right therein has been given in writing signed by the person liable to pay such principal or interest, or his agent, to the person entitled thereto or his agent, the six years shall be computed from the date of such revivors, payment or acknowledgment or the latest of such revivors, payments or acknowledgements as the case may be." {{TABLE}}
6. Previously the period provided by this Article was 12 years but by the Law Reforms Ordinance, XII of 1972, it was substituted by six years. According to Mr. Abdul Sattar Memon, Advocate for the judgment-debtors pendency of the First Execution Application No, 72/60 does not by itself gives a continuing right to the decree-holder. According to him the last amount deposited by the judgment-debtor is Court towards the payment of decretal amount was the sum of Rs, 10,000 on 1- 6-1966 and thereafter no further amount has been deposited. In the circumstances the contention of the learned counsel was that the period of six years should be calculated from 1-6-1966, as on that date payment was made, and under Article 183 this is the last date from which the decree- holder gets another six years to take any other proceedings for execution of the decree. If the contention of learned counsel is to be accepted, six years expired on 1-6-1972 whereas the present execution application was filed on 28-2-1974, much after the expiry of the six years period.
7. Mr. M. G. Dastgir, learned counsel who appeared on behalf of the decree-holder, had contended that so long as the first execution application remained pending, the decree-holder had the right to file another execution application in spite of the pendency of the previous execution application his right does not become barred by time. In support of his contention learned counsel relied upon the judgment of a Single Judge of the Bombay High Court in the case of Vithal Rao Gopal Rao v.
Ramkishan Woman (1). The learned counsel had relied upon Head Note (e) of this report for the proposition that a second execution application filed before final orders are passed on the first execution does not become barred by time. I, however, find that this part of the judgment of the Bombay High Court relates to Article 160 of the Hyderabad Limitation Act, which is different in material respects from the provisions of Articles 182 and 183 of the Limitation Act, 1908. Under Article 160 of the Hyderabad Limitation Act what was necessary was that an application for execution should have been made, and it was the making of an execution application which saved subsequent execution application from being barred by limitation and the date of the final order of the first execution application was the starting point of the period of limitation . For a subsequent execution application. However, according to Article 183 of the Limitation. Act the mere pendency of the first execution application would not save the second execution application from becoming barred by time if the second execution application is made beyond the prescribed period.
8. In my opinion as the decree in the present case was passed prior to the amendment in 1972 of Article 183 of the First Schedule to the Limitation Act, the period of twelve years previously available continues to be the period available for execution of that decree although the execution application is filed after the amendment of 1972. The amendment in 1972 curtailing the period of limitation from twelve years to six years is not retrospective and execution applications filed in the Courts for execution of the decrees passed prior to the amendment, therefore, will continue to be governed by the period provided at the time the decrees were passed. In this respect I may refer to a judgment of my learned brother Zafar Hussain Mirza, J, in the case of National Bank of Pakistan v.
Hyderabad Tando Fazat Bux Service (2) in which the learned Single Judge has held that the right to execution of a decree is a vested right in favour of the decree-holder, and alteration in the period of limitation for execution cannot be held to be a matter of procedure, and retrospective effect cannot be given to the amendment under the law of limitation. The learned Single Judge was interpreting the amendment by the {{FOOT NOTE}}
(1) AIR 1961 Bom. 258 (2) 1980 CLC 1146 {{FOOT NOTE}} ' Law Reforms Ordinance XII of 1972 is section 48 of the Code of Civil Procedure whereby the twelve years Limitation for execution of a decree has been curtailed to six years. I am in respectful agreement with the views of my learned brother Zaffar Hussain Mirza, J. In that case.
9. If, therefore, the starting point of limitation for the second execution application is taken as 1-6- 1966, which is the last payment (Rs, 10,000) made by the judgment-debtors against the decretal amount, the twelve years period will expire in 1978. The present application has been filed in 1974. I have already held that as the decree in this suit had been made prior to the amendment of 1972, the period of twelve years mentioned in the unamended Article 183 will continue to govern the execution applications filed for execution of such decree. The present execution application, which has been filed within twelve years of 1-6-1966, is, therefore, not barred by limitation.
10. Another point that had been raised by Mr. Abdul Sattar Memon, Advocate was that during the pendency of the first execution application, a second execution application could not be filed. I do not find any statutor provision placing any prohibition or restraint on filing of more than one execution application for enforcement of a decree. Learned counsel also could not point out to any such prohibitory statutory provisions. I may refer to Order XXI, rule 30, C. P. C. Which permits simultaneous execution against the property as well as person of the judgment-debtors. The court, however, has the discretion under Order XXI, rule 21, C. P. C. To refund simultaneous execution and to allow the decree-holder to avail himself o only one mode of execution at time and may restrict the execution against the person or against the property. In the present case the first execution application has been pending since 1960 and the decree-holder has not been able to execute the decree in its entirety so far. I do not see any reason for restricting the decree-holder to the first execution application in the circumstances of the case.
11. Other objections had already been dismissed by my order dated 23-8-1980. The legal objection regarding limitation has been dismissed by this order. In the circumstances the execution application is granted as prayed.