' IJAZ AHMED CHAUDHRY, J.--This petition for leave to appeal has been filed against the judgment dated 21-5-2012 through which Civil Revision No,117 of 2010 filed by the petitioner against the judgment dated 7-12-2009 passed by the Additional District Judge, Pind Dadan Khan was dismissed and the order dated 14-2-2009 of the executing court dismissing the execution petition filed by the petitioner was maintained.
2. Brief facts of the case are that the petitioner filed a suit for possession of the house which was dismissed by the learned trial Court. Appeal filed .By the petitioner was also dismissed. A Civil Revision was filed before the Lahore High Court which was accepted and the suit was partially decreed in favour of the petitioner vide-judgment dated 17-3-2003. Against the said judgment respondent Mst. Shamim Akhtar filed CPLA No,1051 of 2003 which was dismissed by this Court vide judgment dated 31-3-2005.
' The petitioner filed execution petition on 3-12-2007 to which objection petition was filed on the ground that execution petition was time barred. The. Executing Court vide order dated 14-2-2009 by accepting the objection the execution petition of the petitioner. Petitioner filed appeal against the said order and the learned Additional District Judge Jhelum vide judgment dated 7-2-2009 dismissed the appeal and upheld the order of the executing court. Civil Revision No,117 of 2010 has been dismissed by the learned Judge in Chamber of the Lahore High Court vide impugned judgment. Hence, this petition for leave to appeal.
3. Learned counsel for the petitioner contends that the matter was finally decided by this Court on 31-3-2005 and after dismissal of the Civil Petition filed by the respondents the petitioner filed execution petition within three years hence the execution petition was not barred by time as the judgments of the Civil Court and the appellate courts have merged into the judgment of the Supreme Court. He further contends that under section 47 and subsection (2) of section 48 of the Civil Procedure Code the time has not lapsed as within six years petition can be filed for execution.
In support of this contention he has placed reliance upon (i) Mst. Niaz Bibi through L.Rs, v. Ghulam Mustafa and others (PLD 2011 SC 520), (ii) Maulvi Abdul Qayyum v, Syed Ali Asghar Shah and others (1992 SCM R 241) and (iii) Mst. Naziran Bibi and another v. Mst. Noor Begum (1997 CLC 1479). Learned counsel contends that the orders of the courts below may be set aside and the executing court may be directed to dispose of the application of the petitioner on merits.
4. We have heard arguments of the learned counsel for the petitioner and have gone through the impugned order. Partial decree was passed in favour of the petitioner by the High Court on 17-3- 2003 in its revisional jurisdiction. Respondent filed a civil petition before this Court which came up for hearing on 31-3-2005 and leave was refused. No stay was granted by this Court. The petitioner could have filed execution petition within three years w.e.f, 17-3-2003, the date of the judgment of the High Court which had attained finality. Mere pendency of Civil Petition before this Court is not a ground for enlarging the period of filing of execution petition as it is an admitted fact that no stay was granted by this Court. The judgment and decree passed by the High Court had attained finality on 17-3-2003 and the petitioner has admittedly filed the execution petition after one year, eight month and 17 days of the prescribed period of three years under the Limitation Act.
5. So far as the contention of the learned counsel for the petitioner that under sections 47 and 48(2) of the Civil Procedure Code the execution petition could be filed within six years is concerned this point was never raised by the petitioner before the courts below and has been raised first time before this Court. Even otherwise we are not convinced by the argument advanced by the learned counsel as the petitioner has never filed any application within time which was dismissed in default or which was withdrawn affording the opportunity to the petitioner to subsequently file application.
Section 48, C.P.C. Applies only to the subsequent/fresh application for execution of the decree, therefore, section 48, C.P.C. Would not apply in this instant case. Reference in this behalf is made to the case of Mahboob Khan v. Hassan Khan Durrani (PLD 1990 SC 778) where a Full Bench comprising five Hon'ble Judges of this Court held as under:-- "The position that emerges from the above discussion is that, as already stated, the first application for execution of a decree would be governed by the residuary Article 181 and the rest of the applications made, thereafter, will be governed by the six years time limit prescribed by section 48. Although the original purpose underlying section 48, read along with Articles 181 and 182 of the Limitation Act, before the amendment of the law was to provide maximum limit of time for execution of a decree. But in the changed position as a result of Law Reforms Ordinance, the only effect of section 48 would be to provide limitation for subsequent execution applications after the first one. The result would be that if no application at all is made within the period prescribed by Article 181, the execution application made, thereafter, would be barred under the said Article and as such there would be no occasion to avail of the benefits of the extended time provided by section 48, C. P.C. In other words once an application for execution is made within time so prescribed, any number of applications for execution can be presented within the six years period from the date of decree."
' In the case of National Bank of Pakistan v. Mian Aziz-ud-Din and others (1996 SCM R 759) this Court observed that:- "It, therefore, clearly follows that if no application for execution of a decree was made within the period of three years prescribed by Article 181, any application made thereafter, would be barred under the said Article and no benefit under section 48, C.P.C. Can be availed by the applicant in such a case. It is only after the first application is made within the period prescribed Article 181 of the Limitation Act, that subsequent applications can be filed within the period provided by section 48, C. P. C. Consequently, the view taken by the High Court and Special Court that the execution application filed by the petitioners beyond the period of three years was time-barred, is not open to exception."
' Similarly, the same view was reiterated in the judgment reported as House Building Corporation of Pakistan v. Rana Muhammad lqbal (2007. SCMR 929), wherein it was held as under:- "We find that the controversy involved in the present case has already been set at rest by this Court in the case of Mahboob. Khan v. Hassan Khan Durrani PLD 1990 SC 778, wherein it was held that for making first application for execution of a decree a period of three years was provided in terms of Article 181 of the Limitation Act and that the provisions of section 48, C. P. C. Could be availed only in the case of fresh application, once the first application had been disposed of. In our view, the impugned order of the High Court is in conformity with the law laid down by this Court to which no exception can be taken."
' In view of the rule laid in the cases noted above, first application for execution of a decree can be filed within three years under Article 181 C of the Limitation Act. The decree in this case was admittedly passed on 17-3-2003 while no application for execution was moved within three yeaRs, The application, out of which the present civil petition has arisen, was the first application, which could be filed within three yeaRs, The contention of the counsel for the petitioner that the execution application is governed by section 48, C.P.C. Is not correct. As held in the case of ID Mahboob Khan (supra), the result of the change brought out by the Law Reforms Ordinance is that the only effect of section 48, C.P.C. Would be to provide a period of limitation for subsequent execution applications after the first one and that if no application at all is made within the period prescribed by the Limitation Act, the execution application made thereafter would be barred by limitation and as such there would be no occasion to avail of the benefits of the extended time provided by section 48, C.P.C. The result of the above decision is that the first application for execution must be made within the period prescribed by the Limitation Act and that section 48, C.P.C. Would apply only to any subsequent application for execution. In the circumstances, section 48 of C.P.C. Has no applicability to' the facts of the present case.
6. It is not a case, where an application has been filed for seeking extension in time to deposit the amount under the decree, rather, it is a case, in which the decree-holder failed to apply for execution of a decree within the prescribed period of limitation. Therefore, the Court, in execution proceedings, will not be in a position, to extend period of limitation, for execution of decree, .Beyond the period prescribed in law. The execution application having been filed on 3-12-2007 was barred by time By failing to approach within time limitation, prescribed in law, the petitioner could not take benefit of his own wrong and a right has F accrued in favour of the respondent after lapse of prescribed period of three years which cannot be taken away. It is further to be noted that in terms of Article 181 of the Limitation Act, 1908 the period of limitation of three years for filing of execution application would commence from G the date of accrual of right which in the instant case is 17-3- 2003 when partial decree was passed by the High Court. The petitioner in the circumstances of the case is not entitled to any indulgence.
7. So far as the contention that the decree passed by the High Court has been merged into the judgment of this Court, it may be mentioned here that Supreme Court is not a court of appeal but a constitutional court, and no stay was granted by this Court, therefore, the case-law cited by the learned counsel for the petitioner is not applicable to the case in hand and is distinguishable.
8. The question for consideration in the case of Maulvi Abdul Qayyum v. Syed Ali'Asghar Shah and others (1992 SCM R 241) cited by the learned counsel for the petitioner was whether the period of limitation would start from the date of original or appellate decree 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. This Court has held that:-- "5. It may be recalled that, according to the High Court, the time started from the date when the First Appellate Court passed the decree. It is manifest from the impugned order that the reason which influenced the decision of the learned Single Judge in synchronizing the accrual of right to apply within the meaning of Article 181, with the date of the decree of the First Appellate Court, and not with that of the High Court, is that the First Appellate Court had stayed the execution of the decree and the stay order ceased to be operative on the dismissal of the appeal, but no such prohibitory order was issued in revision by the High Court. Obviously, the learned Single Judge was conscious of the provision of section 15 of the Limitation Act whereunder in computing the period of limitation for execution of a decree, the time during which the execution proceedings remained suspended has to be excluded; meaning thereby that despite the decree of the Appellate Court, the decree passed by the trial Court continued to maintain its identity and was capable of execution. Quite advantageously, reference here, may be made to Order XLI, rule 5, C. P. C., which provides that mere filing of an appeal does not operate as a stay of the decree appealed from.
The Appellate Court, is, however, empowered to order the stay of the execution of such decree.
Seemingly, the object of this rule is that the decree-holder is not deprived of the relief to which he has been found entitled by the Court, and at the same time to ensure that by execution of the decree the appeal is not rendered infructuous. 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 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."
' In the above cited case it was held that where stay is granted by the Appellate/Revisional Court, time can be extended for such period the decree remained under suspension. In the instant case a right has been accrued in favour of the respondent in terms of the order of the High Court and admittedly no stay or leave to appeal was granted by this Court as such the period of limitation would run from the decree passed by the High Court and no extension of time can be granted.
9. So far the question that the decree of the court of first instance is merged into the decree of Appellate Court which alone can be executed, it may be stated that in the case in hand the decree was passed by the High Court being appellate/revisional Court, therefore, the time would run from the date of passing of decree by the said Court. In the instant case the right was accrued in favour of the petitioner when the decree was passed by the High Court on 17-3-2003. There being no, statutory remedy of appeal or revision available against said decree and the only remedy available was filing a petition for leave to appeal before this Court, which is a constitutional court, therefore, unless the operation of the impugned decree is suspended or the petition is converted in to an appeal the petitioner cannot presume that the period of limitation has been clogged. Mere filing of petition before this court would not automatically enlarge the time of filing the execution application. Needless to mention here that in case relief is granted by this Court after allowing the appeal with leave of the Court then in the said eventuality the order of this Court would merge into order of the lower forums as such the period of limitation would start from the order of this Court.
10. In view of above discussion we find no illegality or irregularity in the impugned judgments. This petition is, therefore, dismissed and I leave to appeal is refused.