ATIR MAHMOOD, J. --- Brief facts of the case are that respondent No. 1 namely Mst. Najma Zakia filed a suit for mandatory injunction regarding Plot No. 52, measuring 8 marla-28 Sq, ft. Situated at Chan Peepaiwala Scheme Model Town A, Bahawalpur against the petitioner and respondent No. 2. The plaintiff averred in the plaint that she had purchased the said plot from her real aunt, wife of Raja Mukhtar A.I, which was allotted to her in 1968 by the Municipal Committee Bahawalpur after having paid the total cost of the plot. Notices were served upon the petitioner and respondent No. 2 who contested the suit by filing written statements. After recording oral as well as documentary evidence adduced by the parties, learned Trial Court seized with the matter proceeded to dismiss the suit of respondent No. 1 under Order VII, Rule 11 of Civil Procedure Code, 1908 vide its judgment and decree dated 10.11.1992. Feeling aggrieved, respondent No. 1 preferred an appeal which was allowed by the learned Additional District Judge, Bahawalpur and the judgment and decree dated 10.11.1992 was set aside with the direction to respondent No, 1 to deposit the price of land including other charges with respondent No. 2- Cantonment Board vide judgment and decree dated 26.02.1995. Respondent No. 2 challenged the judgment and decree dated 26.02.1995 in Civil Revision No. 393-D/1995 which ultimately was dismissed as withdrawn vide order dated 04.02.1998.
2. On 31,07.1998, respondent No. 1 filed an execution petition for execution of judgment and decree dated 26.02.1995 passed by learned Additional District Judge Bahawalpur. In the execution petition, respondent No. 1 has sought direction to the present petitioner to receive the price of the land in dispute and issue sale-deed in her favour. The execution petition as resisted by the petitioner by way of filing the objection petition taking pleas that the decree under execution was not passed against the petitioner ; that the same is illegal and without jurisdiction and that it is badly barred by time. The executing Court framed issues on the objection petition, recorded evidence produced by the parties and after having considered the same proceeded to dismiss the objection petition vide order dated 09.12.2002. The appeal preferred thereagainst also met with the same fate vide order dated 25,10.2003 passed by learned lower Appellate Court. Hence this civil revision.
3. Learned counsels for the petitioner and respondent No. 2 (Cantonment Board) submit that respondent No. 1 wants to grab the valuable government property; that learned Courts below have failed to comprehend the nature of the decree under execution; that against notice of the Cantonment Board, appeal is provided in the Cantonment Board Act but respondent No. 1 filed suit illegally and unlawfully which was not maintainable in the presence of alternate remedy; that the amount deposited with the Cantonment Board was on account of penalty and not as a consideration money; that as per judgment of Hon'ble Supreme Court, the disputed property is owned by the TMA, as such, neither the Cantonment Board has any title nor it could sell or lease out the property to anyone; that the judgment and decree dated 26.02.1995 was awarded merely on the statement of the plaintiff that she is ready to make payment of the property without taking consent of the other side which is against the law of equity; that the judgment and decree dated 26.02.1995 does not call for petitioner to perform any act in pursuance thereof; that both the learned Court below have incorrectly treated the execution petition as within time which in fact was badly barred by time; that the disputed property is owned by the petitioner TMA or its predecessor local council which is a statutory body, therefore, the property owned by it was required to be governed under the provisions of Punjab Local Council (Property) Rules, 1981; that under the provisions of Rule 10 of Punjab Local Council (Property) Rules 1981, no property owned by TMA/local council can be alienated by way of sale or otherwise except through an open auction, therefore, the judgment and decree dated 26.02.1995 is void ab initio; that without conceding the judgment and decree, it was incumbent upon the decree-holder to comply with the direction contained in the decree which has not been done by her, therefore, she has not lOCUS Standi to seek execution of the decree; that the learned Courts below have committed gross illegalities which are floating on the face of the record attracting interference by this Court, therefore, this civil revision be allowed and the impugned orders dated 09.12.2002, 25.10.2003 and judgment and decree dated 26.02.1995 be set aside.
4. Conversely, learned counsel for respondent No. 1 vehemently opposes this civil revision and fully supports the impugned orders as well as the judgment and decree dated 26.02.1995. He contends that the executing Court cannot go beyond the decree; the impugned judgment and decree dated 26.02.1995 was never challenged by the present petitioners which has attained finality, as such, the objection petition was not maintainable. He asserts that this civil revision having no force merits dismissal.
5. I have heard the arguments advanced by learned counsel for the parties at length and also perused the record with their able assistance.
6. The questions to be determined by this Court are whether the execution petition before the executing Court was within time and whether the decree for mandatory injunction was executable or not.
7. So far as passing of a decree by the Appellate Court in a suit for mandatory injunction is concerned, I am convinced that the Court can pass the decree as has been done in this case. No doubt, there was no consent of any respondent before the Appellate Court and the decree was passed on the mere statement of the respondent No. 1-plaintiff but still that decree was not challenged by the present petitioners at the appropriate time nor respondent No. 2 (Cantonment Board) contested the matter wholeheartedly till at last and withdrew its Civil Revision No. 393D/1995, therefore, the said decree had attained finality. The executing Court and the Appellate Court have rightly held that the executing Court cannot go beyond the decree.
8. Now, I take up the question as to whether the execution petition filed before the executing Court was within time, Scanning of record shows that the impugned judgment and decree was passed on 26.02,1995 by the lower Appellate Court whereas the execution petition was filed on 31.07.1998. The judgment and decree dated 26.02.1995 was challenged before this Court in Civil Revision No. 393D/1995 wherein pre-admission notice was issued to the respondent No. 1-plaintiff but operation of the judgment and decree dated 26.02.1995 was not suspended. When confronted with, learned counsel for respondent No. 1 could not deny the fact that operation of the Impugned judgment and decree remained unsuspended. In my considered view, the period of limitation for filing of first application for execution of a decree as per Article 181 of the Limitation Act, 1908 is three years and mere filing of a civil revision does not extend the period of limitation. The limitation started with the passing of the decree continued till its expiry on 25.02.1998 as it is settled law that the limitation once started will not stop until and unless so ordered by a competent Court of law. Since the decree passed on 26.02.1995 was not suspended nor it was affirmed, reversed or modified but was withdrawn by present respondent No, 2, therefore, starting point for the computation of period of limitation will be the date of the decree, i.e. 26.02.1995 which period expired on 25.02.1998. I am guided by the judgment of the Hon'ble Supreme Court of Pakistan in case titled "Abdul Qayyum v. A.I Asghar Shah (1992 SCMR 241)" which reads as under:--- "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 stated 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 41, 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 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."
The above judgment has also been relied in latest judgment of the apex Court in case titled "Bakhtiar Ahmed v.
Shamim Akhtar (2013 SCMR 5)" wherein the above point has been further elaborated stating that "...Wherein stay is granted by the Appellate/Revisional Court, time can be extended for such period the decree remained under suspension."
9. It is evident from the record that the execution petition was filed on 31.07.1998 with a delay of about five months and six days. Under the law, each and every day of delay is to be explained, however, there is no plausible explanation given by the decree-holder for delay of five months and six days in filing the execution petition. In the circumstances, since no stay was granted by this Court in the Civil Revision No. 393-D/1995 challenging the decree dated 26.02.1995, a right has accrued in favour of the petitioner-defendant. As the period of limitation has been running from the date of decree dated 26.02.1995 passed by the learned lower Appellate Court till expiry on 25.02.1995 whereas the execution petition was filed on 31.07.1998. In the circumstances, no extension of time can be granted on account of pendency of the civil revision before this Court. Therefore, I am fully convinced that the execution petition was barred by time by five months and six days and was liable to be dismissed on this score alone,
10. The contention of learned counsel for respondent No, 1 that the execution petition was filed after withdrawal of the civil revision on 04.02.1998 does not hold water as when no restraint order was passed, the decree- holder was at liberty to file the execution petition but he did not do so, therefore, the limitation period expired on 25.02.1998 whereafter the execution petition was not maintainable until and unless the delay was condoned in accordance with law. The execution petition was unlawfully considered within time by the executing Court without condoning delay occurred on the part of the decree-holder,
11. For the afore-mentioned reasons, I am of the view that though the decree passed in a suit for mandatory injunction had attained finality and was executable yet the execution petition was filed with a delay of five months and six days without given any explanation for the same, therefore, the execution petition is time-barred . As a result, this civil revision is allowed, the impugned orders dated 09.12.2002 and 25.10.2003 passed by executing Court as well as learned lower Appellate Court respectively are set aside and the execution petition filed by respondent No. 1 is dismissed. Civil revision .