' SHEZADA MAZHAR, J.---This revision petition impugns the judgment dated 13-4-2010 rendered by the learned Additional District Judge, Sargodha whereby an appeal filed by the petitioners against the order dated 12-3-2010 passed by the learned Civil Judge Class-III, Sargodha was dismissed according to which an application filed by the respondent for dismissal of execution petition under section 48, C.P.C. Read with Article 181 of Limitation Act was accepted and the execution petition filed by petitioners pending in the court was dismissed being time-barred.
2. The facts are not in controversy. A suit for specific performance was filed by the petitioners on the basis of an agreement dated 10-5-1966 which was decreed on 21-6-1983 in favour of the petitioners. An appeal was filed against the said judgment which was also dismissed vide order dated 19-2-1984. The Civil Revision filed before this Court bearing No, 528 of 1984 was also dismissed by this Court on 14-7-1998. It is specifically mentioned in the said judgment that possession was already with the petitioners and that the petitioners have already paid full amount.
Even this fact is not disputed between the parties.
3. Petitioners filed execution petition on 30-3-2009 for execution of sale-deed in their favour wherein objection petition was filed by the respondent claiming that execution petition is barred by limitation which objection was upheld by the executing court vide order dated 12-3-2010. An appeal was filed against the said order which was also dismissed by the learned Additional District Judge, Sargodha, vide judgment dated 13-4-2010. Hence, this Civil Revision.
4. Learned counsel for the petitioners submits that the decree for specific performance is special decree and in case where possession is already delivered and payment is also admittedly paid, the execution of sale-deed is a formality and no limitation runs in such situation. In support of his contentions, learned counsel for the petitioner has relied upon an unreported judgment of the Hon'ble Supreme Court in C.P.L.A. No, 3262-L of 2003 decided on 26-2-2007.
5. On the other hand, learned counsel for the respondent submits that there is no law provided for execution of a decree. Article 181 provides three years limitation whereas section 48 C.P.C. Provides six years limitation and in the case in hand decree attained finality on 14-7-1998 and execution petition has been filed after 11 years but no application for condonation of delay has been filed.
Further submits that the petitioners were required to explain each and every day's delay. It is settled principle that if the procedure is provided in law to do a thing should be done in that way. In support of his contentions, learned counsel for the respondents has relied upon the following case- law:-
(1) 1996 SCMR 759,
(2) PLD 1990 Supreme Court 778,
(3) 2007 SCMR 1929,
(4) 2004 CLC 1482,
(5) 2001 CLC 108,
(6) PLD 2010 Lahore 42,
6. Arguments heard. Record perused.
7. There is no dispute with regard to the fact that limitation for filing of execution petition is not provided in limitation law and in such like situation Article 181 becomes applicable which provides three (03) years. When we read Article 181 of Limitation Act, 1908 read with section 48 of the C.P.C. It becomes clear that for filing first application for execution three years limitation will apply and any subsequent application will be run by the limitation provided in section 48, C.P.C. No other law is relevant or applicable.
8. Facts of each case have to be looked into before applying the law. In the case in hand as mentioned above it is not disputed that possession of the property is with the petitioners and they have already paid the consideration of the sale and the respondent has not denied this fact. This fact makes this case of its own nature and unique.
9. The judgments referred by the counsel for the respondent are not applicable to the unique facts of the present case. In "Mubarik All Farooqi and another v. Circle Officer, Police Station Anti- Corruption, Faisalabad and 3 others (PLD 2010 Lahore 42), although relates to a suit for specific performance, however, in this case the facts are totally different and not relevant for decision of the controversy in hand. In this case entry was made in the Revenue Record without getting execution order, therefore, the same is not relevant.
' In "Toor v. Abdul Qadir (2001 CLC 108), the matter relates to declaratory decree and deals with the rule of merger and it was held that limitation has to be started from the date of final judgment, however, facts of the case are different and not relevant to resolve controversy in hand.
' In "Nazir Ahmad and others v. Muhammad Saleem and others (2004 CLC 1482), states that mere getting of a decree for specific performance does not create any right, title or interest unless the same is got executed and sale-deed registered. This finding of the court is not relevant to the case in hand as in the cited case the issue was totally different as in the said case some fraud was involved whereas in the present case admittedly no fraud is involved, therefore not relevant.
' Similarly, "Habib Bank Limited v. M/s Five Star Travels and 2 others (PLJ 2007 Lahore 106), and "National Bank of Pakistan v. Mian Aziz-ud-Din and 7 others (1996 SCMR 759), relates to banking matter, therefore, not relevant to the dispute in hand.
"Mahboob Khan v. Hassan Khan Durrani (PLD 1990 Supreme Court 778), and "House Building Finance Corporation of Pakistan v. Rana Muhammad lqbal through L.Rs, (2007 SCMR 1929), both these judgment hold that limitation for Wing first execution petition is three years under Article 181 of Limitation Act, 1908 and any subsequent application will be governed by section 48, C .P.C.
Therefore of no help in resolving the controversy in hand.
10. Though the judgment of the Hon'ble Supreme Court bearing C.P.L.A. No, 3262-L of 2003 Mst.
Hakam Bibi through LRs v. Khushi Muhammad (decd.) through L.Rs,), relied upon by the learned counsel for the petitioners is unreported but the same is very much relevant to the case in hand. As mentioned earlier, the facts of the case are not in dispute, the petitioners have paid the price as well as enjoying the possession. It is settled law that every case has to be decided on the basis of the facts of that very case and this court has to decide the controversy on the basis of the facts of the present case.
' In "Trustees of the Port of Karachi v. Muhammad Saleem (1994 SCMR 2213), it has been held that:- "Every judgment must be read as applicable to the particular facts proved, or assumed to be proved, since the generality of the expressions which may be found there are not intended to be expositions of the whole law, but governed and qualified by the particular facts of the case in which such expressions are to be found."
11. In the present case the controversy is with regards to limitation for filing execution petition in a suit for specific performance wherein the petitioners have already paid the consideration and is in possession of the property. It has been held by the learned Division Bench of this Court in "Muhammad Wazir v. Ch. Jahangiri Mal and others (PLD 1949 Lahore 1), that a sale effected in consequence of a decree for specific performance is entirely different from a voluntary sale.
12. It is also well-settled that justice should not be sacrificed on account of technicality which did not go to the root of the cause; insofar as the fairness thereof is concerned. In "Syed Phul Shah v.
Muhammad Hussain and 10 others (PLD 1991 SC 1051), it has been observed as under:-- "Even if there would have been some force in the technical objection of the learned counsel, justice could not have been sacrificed, at least in this Court, on the altar of the technicality which does not go to the root of the cause, in so far as the fairness thereof is concerned. The Courts in Pakistan combine law and justice under the umbrella of Islamic jurisprudence; which provides harmonious solutions for situations like the present one. One amongst other principles which operates is that an obviously unjust and wrong decision which is also against the substantive law of the country, shall be avoided by the Court.
It is also a well-known principle in Islamic justice, that one who succeeds in a litigation unjustly must not retain the benefit. It has been equated with burning charcoal in one's pocket; which, burns and eats away the winner's belongings including the retaining pocket also. Thus, while trying our best to do justice in accordance with the law, the principles in our own jurisprudence governing just dispensation shall have to be kept in view. In other words while adhering to the principle; Justice in accordance with law; we well have to keep in mind that it is the birth right of every citizen in an Islamic State to seek and obtain justice. In this exercise of keeping balance between the undiluted justice and justice only in accordance with law, they general directional principles in Islam come to the aid when, one exerts."
13 Even if there is some force in the arguments of the respondent counsel this court feels that as the petitioners have paid the price and also enjoying possession therefore in view of Order XX, Rule 14 there is no need for the petitioners to file execution petition. In this regard reference is made to "Maulvi Abdul Qayyum v. Syed Ali Asghar Shah and 5 others (1992 SCMR 241), it has been held as under:- "It will be material to bear in mind, that a decree in a preemption suit is of a peculiar nature. Under Order XX, Rule 14, C.P.C., the title of the property accrues to the decree-holder on payment in the Court of purchase money together with costs, if any. It has not been controverted before us that the requirements of Rule 14 have already been complied with by the appellant. Thus, irrespective of the fact whether the possession is delivered to him or not, title in the property has vested in the appellant and he is owner of the land in dispute. Viewed in this context, the respondents' opposition to the execution of the decree becomes all the more ethereal."
14. Following the above said dictum of the Hon'ble Supreme Court, this Civil Revision is accepted and consequently judgment of the learned Additional District Judge, Sargodha dated 13-4-2010 and order dated 12-3-2010 passed by the'learned Civil Judge Class-III, Sargodha are hereby set aside and the case is remanded to the learned executing court/Civil Judge Class-III, Sargodha where the execution petition filed by the petitioners on 31-3-2009 shall be deemed to be pending before him, who shall proceed with the said execution petition in the light of judgment cited above.
As the matter is pending since 2009, therefore, the learned Civil Judge is directed to decide the same within three months from the receipt of certified copy of this judgment.