This petition is for revision of the order of the Additional District Judge Quetta dated 10-3-1981 whereby he has uphold the order made by the Civil Judge Quetta on 14-9-1980 in execution proceedings. The respondent had obtained a decree on 8-12-1960 from the Deputy Commissioner, Quetta in respect of immovable under section 8 of the Frontier Crimes Regulation, 1901. The respondent made application for execution of this decree on 19-8-1979 in the Court of Senior Civil Judge. Quetta. It was amended on 21-9-1979 and received in the Court of Civil Judge Quetta on 22- 9-1979. It is not clear from the order-sheet Of execution proceedings as to how the application came up before the Civil Judge but ever since 22-9-1979 this application has been pending in that Court. The judgment-debtor filed objection to the execution which was disposed of by the executing Court by its order dated 14-9-1980. Appeal against this order was made to the District Judge which was decided by the Additional District Judge by his order dated 10-3-1981.
2. The objections to. The execution of the decree by the civil Court was filed on 22-9-1979. The objections were drat the Court had no jurisdiction to execute the decree dated 8-12-1960 as it was a decree passed under the Frontier Crimes Regulation and as such was executable by the Deputy Commissioner who continued to be vested with jurisdiction to execute the decree in spite of withdrawal of the Frontier Crimes Regulation and that application for execution was time-barred and could not be executed.
3. The learned counsel of the petitioner Mr. Nawaz Ahmad contended that no application for execution of a decree could be made to the civil Court as it was not a decree passed by that Court nor it was a decree transferred for execution to that Court under section 38 of the C. P. C. His further contention was that the application for execution of the decree should have been made to the Deputy Commissioner who. Was competent to execute the decree under section 9 of the Frontier Crimes Regulation. As against this proposition Mr. Basharatullah, the learned counsel of the decree-holders/ respondents urged that since the Deputy Commissioner's powers under sections 8 and 9 of the Frontier Crimes Regulation did not exist, application for execution could only be made to the civil Court as this is the Court which would be deemed to be a Court that passed the decree, under section 37 of the C. P. C.
4. There is no dispute between the parties about the legality of the validity of the decree. The decree dated 8-12-1960 remains in tact after a long chain. Of litigation on this point and last being the judgment of the High Court in Second Appeal dated 16-5-1979. The learned counsel of the respondents/decree-holder has also referred to the pendency of execution application made to the Deputy Commissioner some times back and prior to the date of withdrawal of the Frontier Crimes Regulation from Quetta Division. That application is not before me and so I would not like to express any opinion about its existence or effect or its possible and ultimate fate. In the present petition we are concerned with the application for execution filed on 22-9-1979 in the Court of Civil Judge, Quetta. The first question required to be examined is ac to what Court would be the proper Court to execute a decree passed as for back as 8-12-1960 by the Deputy Commissioner. As long as the Frontier Crimes Regulation, 1901 was in the field, the decree passed by the Deputy Commissioner under section 8 of the Frontier Crimes Regulation was to be executed by him under section 9 of the said Regulation in the same manner as a civil Court would execute it. The decree had not been satisfied that on 17-12-1964. The Frontier Crimes Regulation was withdrawn by the Governor of West Pakistan by a Notifica--tion which is as under: "No. Judl. 1-1(72)/64(i).-In exercise of the powers conferred by subsection (3) of section 1 of the Frontier Crimes Regulation, 1901 (11: of 1901), the Governor of West Pakistan is pleased to exempt all the areas specified in the Third Schedule to the said Regulation from the operation of all the provisions thereof."
The effect of that withdrawal was considered in the Full Bench decision in the case of Bahadur Shah v. Deputy Commissioner PLD 1972 Quetta 67in which it was held that effect of withdrawal was not at par with repeal and that with the exception of those matters which were past and closed the proceedings could not be saved. It was also held that since the Frontier Crimes Regulation was not at Ordinance promulgated by the Governor, subsection (2) of section 4 of the Pakistan General Clauses Act would not have any application and the withdrawal of the Frontier Crimes Regulation by Notification dated 17-12-1964 could not have the effect of repeal. In Bahadur Shah's case it also was held that reference to the Council-of-Elders by the Deputy Commissioner on the assumption that withdrawal amounted to a repeal was not correct and as such the decree passed on 29-10-1969 was considered to be without jurisdiction. In the present case the decree having been passed on 8-12-1960 will be saved as it was a matter past and closed as change in procedural law would not take away and derogate from the rights already vested in the decree- holders under the decree.
5. The next question to determine is as to whether application for execution could be made to the civil Court in August, 1979, or not. The contention of the learned counsel for the petitioner is that even after with--drawal of the Frontier Crimes Regulation from Quetta and Kalat Division in 1964 by the, Notification dated 17-12-1964 application for execution of the decree should have been made to the Deputy Commissioner concerned. On withdrawal of the Frontier Crimes Regulation by the abovesaid Notifica--tion the Deputy Commissioner, as far as section 9 of the Frontier Crimes Regulation is concerned, ceased to exist. The Deputy Commissioner was not a Court but he could execute a decree in the same manner as a civil Court but that power too has been taken away from him by withdrawal of the Frontier Crimes Regulation. As observed above there is no dispute about the legality or validity of the decree and it continues to remain in tact in spite of the withdrawal of the Frontier Crimes Regulation. When the jurisdiction of the Deputy Commissioner had been taken away by withdrawal) of the Frontier Crimes Regulation the Provisions of the Civil Procedure Code which already was in the field became applicable to the decree: It may be mentioned here that Civil Procedure Code was applicable in the Quetta Division side by side with the Frontier Crimes Regulation. As soon: as the Frontier Crimes Regulation was withdrawn the provisions of the Code became applicable to the decree.
5-.A A decree can be executed by the Court which passed it or by the Court to which it is sent for execution. Since the Deputy Commissioner ceased to exist or to have jurisdiction to execute it the expression" "Court which passed the decree occurring in section 37, C. P. C. Would mean and.
Include the Court which would have jurisdiction to try the suit in which the decree was passed and the Court of Civil Judge or Senior Civil Judge will have power to execute such a decree under section 38, C. P. C. And com--petency to execute would depend upon the pecuniary and territorial jurisdic--tion". The learned counsel of the petitioner has relied upon the case reported in AIR 1939 Mad: 463. What happened in that case was that there was a change of the territorial jurisdiction.
The decree was passed byBerhampur Court in Madras Presidency and subsequently that area was included in the Province of Oriss and thus came to be within the jurisdiction of Chicacole Court.
Application for execution was made in the new Court after the notification involving the change came. This case does not help the petitioner rather it will show that application for execution made to the civil Court in the present case was proper. By the withdrawal of the F. C. R. The Deputy Commissioner's authority to execute the decree of even entertain an application for that purpose has been taken away. The Notification No. Judi. I. 1(72)/64(i), dated 17-12-1964 does not take away the decree holder's right to execute the decree if it is otherwise executable.
6. The next contention of the learned counsel of the petitioner is that civil Court could execute a decree provided it had passed it or that it was received for execution by transfer. Section 38, C. P. C.
Cannot embrace any other case and does not cater for any other situation. In the instant case since the Court of first instance has ceased to exist and to have jurisdiction, the expression Court which passed the decree means the civil Court.- The Court having competent pecuniary jurisdiction can execute this decree as if it was passed by it and the question of transfer of decree under section 38, C. P. C.I would not arise.
7. Another point to be considered is as to whether the Court of Civil Judge was competent to pass the decree if such a suit had been brought before it having regard to the value of the subject- matter of the suit. This point has not been considered by the executing Court although it was necessary for assumption of jurisdiction by the Civil Judge. If he was not competent to try the suit in which the decree was passed he was not competent to execute it.
8. The next question raised is as to limitation as a bar to the execution of the decree. As observed above the application of the pro--visions of the C. P. C. Were incidental to the withdrawal of Frontier Crimes Regulation on 17-12-1964 by the Notification No. Judi. I. 1 (72)64(i) and section 48 would become applicable. The decree for execution could be made within six years of the date of the decree. It is an admitted position and well-settled law that the provisions of Limitation Act and Civil Procedure Code were not applicable to the Courts on the Frontier Crimes Regulation side. When the decree became free to be executed by a civil Court on the cessation of powers of the Deputy Commissioner under Frontier Crimes Regulation the provisions of the Civil Procedure Code became applicable to the decree. The law applicable to the decree for the purpose of execution would be the law in force at the time of making the application for execution. Application of section 48 of C.
P. C. To the execution proceedings does not mean that time will be computed from date of withdrawal of the Frontier Crimes Regulation.
9. Section 48 of the Civil Procedure Code prescribes a limit for fresh application for execution while Article 181 of the Limitation Act prescribes limitation for any application for execution of the decree made successive in the Court. In the present case time for the purpose of section 48 of the C. P. C.
Would start from the date of the decree and not from the date of withdrawal of Frontier Crimes Regulation i. e. 17-12-1964. It is contended on behalf of the respondent that the decree-holders were unable to make any application for execution of decree after withdrawal of the Frontier Crimes Regulation on 17-12-1964. The learned counsel of the respondents had given the dates of various suits and petitions before the Court in respect of the decree. It is contended that first application for execution was filed on 3-1-1961 before the Deputy Commissioner and to which the petitioner filed objection on 4-7-1961 which was referred to Council-of-Elders on 20-7-1963. By the Deputy Commissioner. The Deputy Commissioner rejected the objection on 16-9-1963 after receiving findings of the Council-of-Elders and against this rejection revision was filed before the Commissioner which was dismissed on 7-1-1964. The petitioner then filed a writ petition on 3-2- 1964 which was dismissed on 19-9-1966 and L. P. A. Was dismissed on 27-9-1966. A Civil Suit was filed on 4-10-1966 which was decided by the Civil Judge on 27-3-1976. An appeal filed in the District Court was dismissed on 25-2-1977. Second Appeal filed in the High Court was dismissed on 16-5- 1979. The. Respondents have not been able to show that on filing the writ petition in the High Court on 3-2-1964 by the petitioners, the respondents were restrained from making an application for execution. They could file application for execution on withdrawal of the Frontier Crimes Regulation as there seems to have been no obstruction in their way. On 4-10-1966 the civil Court granted an injunction restraining the petitioners from disturbing possession . Of the respondent-decree holders. Strictly speaking they were not: restrained from making an application for execution. Ever if it is assumed that they were so restrained, the disability came into existence when injunction was granted by the civil Court and continued to exist till second appeal was decided on 16-5-1979 by the High Court. The present application which is pending before the civil Court was filed on 19-8- 1979 in the Court of the Senior Civil Judge. This period from 16-5-IJ79 to 19-8-1979 has not been accounted for by the respondents and no explanation has come forward. The decree-holders should have been vigilant as to their rights and should have been able to account for each and every day of the delay. They made no effort in this behalf. The application for execution dated 19-8- 1979 or 22=9-1979 would be barred under section 48, C. P. C. I therefore) accept the petition and set aside the orders of the Courts below.
S. A. H.