JUDGMENT ; SAAR SAOOD JAN, J.-On 11-12-1968 the Senior Civil Judge, Lahore, passed a decree in favour of the petitioner for the specific performance of an agreement for the sale of a house. The decree was in the following terms. ---. . It is ordered that the plaintiff is granted a decree for the specific performance of the agreement to sell dated 24-6-1964. The defendant shall get the sale-deed executed and registered within one month of the date of this order on plaintiff's paying a sum of Rs.87,000 to her in the presence of the Sub=Registrar. In case she fails to do so the Clerk of Court shall get a sale- deed executed and registered on plaintiff's depositing a sum of Rs.87,000 in Court. There will be no order as to costs."
From this decree the respondent on 17-5-1969 preferred an appeal in the High Court which was dismissed on 29-1-1979. It may be mentioned that while admitting the appeal to regular hearing or during its pendency no order with regard to the suspension of the execution of the decree was made.
2. On 18-9-1974 the petitioner filed an application for the execution of the decree. He stated in the application that he had within one month of the making of the decree offered the purchase money to the respondent but that she had refused to accept the same on the ground that she was going in appeal from the decision of the trial Court. The application was resisted by the respondent. She denied that the petitioner had offered the purchase money to her and alleged that as the petitioner had neither deposited the money in Court nor moved the application within the prescribed time the application was barred by time. By its order dated 11-3-1975 the Executing Court rejected the objections of the respondent but refused to proceed further with the execution of the decree on the consideration that the execution ought to be postponed till the decision in the appeal preferred by the respondent. It then consigned the application to the record-room as unsatisfied.
3. From the order of the Executing Court the petitioner preferred an appeal in this Court. The respondent too on her part filed cross-objections. Subsequently the petitioner withdrew his appeal.
To begin with, the cross-- objections were rejected by a Division Bench on the ground that these had been filed after the expiry of the prescribed period. Later, on review the Division Bench reserved its earlier decision and declared the cross-objectionsto be within time. As the petitioner has already withdrawn his appeal we are now only concerned with the cross-objections.
4. One of the contentions raised by the learned counsel for the respon--dent before us is that the decree passed by the trial Court was a conditional one inasmuch as the petitioner was required to deposit the purchase money prior. To seeking execution of the decree. Thus he argued, the application made by the petitioner was governed by Article 181 and not Article 182 of the Limitation Act. He pointed out that Article 181 provided a period of three years from the day when the right to make the application accrued. He submitted that in this case the right to apply accrued to the petitioner on the day when the decree was passed and as the application for execution was made more than 5 years and 9 months after the making of the decree it was barred by time. In support of his contention he referred to Narailt v. Brfj Narain (AIR 1931 All. 326), Goppal Sattu v. Dnyanu Maruti (AIR 1938 Bom. 367) and Dada v. Ganpat--no (AIR 1931 Nag. 54).
On the face of it the contention of the learned counsel seems attractive but on closer examination it cannot be sustained. The decree passed by the trial Court in favour of the petitioner was in the usual form and was executable as such. It is true that before getting a sale-deed executed and registered the petitioner was required to pay the purchase money but we find nothing in the decree that it was not to come into existence or was to remain inchoate till the purchase money was tendered before the Court. It is also to be noticed that for depositing the purchase money in Court or seeking the execution of the decree through a process of the Court no time limit was fixed.
Thus the application made by the petitioner was for all purposes an application for the execution of the .q decree within the ambit of Article 182 of the Limitation Act. We find it difficult to agree with the learned counsel that since the said application was made before the payment of the purchase money it ought to be treated as one preliminary to making the decree executable and, for that reason, as one to be governed by the residuary Article 181. To do so would be tanta--mount to placing too narrow an interpretation on Article 182 which is against the trend of authority. A similar question was raised before the Madras High Court in Syed Hussain Salb Rowthen v. Rajagnpala Mudaliar (I L R 30 Mad. 28). In this case a decree for redemption of mortgage was passed directing "that the plaintiff is to recover possession on payment of Rs.865." An application for execution was made by the plaintiff before depositing the mortgage money. An objection similar the one taken before us was canvassed before the High Court. The Court held that the application was one for the execu--tion of the decree and was governed by Article 179 of the Limitation Act, 1877 which corresponds to Article 182 of the Limitation Act, 1908. In support of its decision the Court observed that though the payment of the mortgage money was a condition precedent to the making of an order for the delivery of the property but it was not a condition precedent to the making of an application for a conditional order. This decision was followed by Almond A J C in Budhu Ram v.
Mushtag Shah Singh (AIR 1935 Pesh. 129).
6. The cases reported as Narain v. Brij Narain and Gopal Saltu v, Dnyanu Maruti upon which the learned counsel for the respondent has relied stand upon a different footing. In both these cases decrees for possession of immovable property conditional upon payment of money were made.
On the finding that the decrees were incapable of execution till the condition with regard to payment of money was satisfied, the Courts held that-an application for execution was governed by Article 181 and not by Article 182 of the Limitation Act. We do not think that the rule laid down in these cases is applicable to a decree for the specific performance of an agreement of the nature which has been passed in this- case. A decree for the specific per--formance of an agreement has a feature of its own inasmuch as it is a decree both in favour of the plaintiff and the defendant and either party can seek its enforcement. See Heramba Chandra v. Jyodsh Chandra (AIR 1932 Cal. 579). It becomes executable at once. There is therefore no reason why an application for its execution should not be treated as one under Article 182 of the Limitation Act which specifically deals with applications for execution rather than resort be had to the provisions of an Article of a residuary nature.
7. The only other case upon which the learned counsel for the respon--dent relied, namely, Dada v.
Ganpatrao runs counter to his contention. In this case also a decree for possession contingent upon payment of certain amount by the plaintiffs to the defendant was passed. The question before the Court was whether an application for execution made by the plaintiffs was governed by Article 182 or 181 of the Limitation Act. While holding that it was Article 182 which was applicable Staples, A. J. C. Observed :- "I hold then that, when a decree for possession is passed on condition of payment of a certain sum by the decree-holder, the starting point for limitation for execution of the decree is the date of the decree and not the date of payment by the decree-holder. The decree is one that is capable of being executed immediately, as the condition of payment is one entirely dependent upon the will of the decree-holder or his ability to pay. In such a case the decree cannot be said to be a conditional one or one that is incapable of being executed until a condition is fulfilled. The decree- holder cannot obtain extension of limitation by deferring payment. Limitation runs from the date of the decree, whether any time for payment is fixed or not. The only effect of fixing a time for payment is that payment cannot be made a after the date fixed. If no time is fixed payment may be made under the terms of the decree at any time within the period of limitation, i.e. Within three years of the date of decree. Such a case, therefore, is governed by Article 182, Sch. 1, Limitation Act and not by Article 181.
To appreciate the second part of the submission made on behalf of the respondent we may mention that Article 182 of the Limitation Act, as it stood at the time when decree was passed, gave a fresh lease of limitation with regard to execution to a decree-holder if the decree obtained by him was challenged in appeal in other words, whenever an appeal was filed a decree --holder was vested with the option to defer the execution of his decree till after the decision in the appeal. The Law Reforms Ordinance, 1972 repealed the said Article. Learned counsel for the respondent contended that with the repeal of the said Article the petitioner could no longer take advantage of its provisions and that now the time limit for execution of the decree was to be regulated by section 48 of the Code of Civil Procedure. According to this section whenever an application to execute a decree had been made no order for the execution of the same decree could be made upon any fresh application presented after the expiration of six years from the date of the decree sought to be executed. He also pointed out that the petitioner had deposited the purchase money in Court only on 17-2-1979, that is, more than 10 years after the passing of the decree. Consequently, he argued that the decree was no longer executable.
9. In our opinion the second contention of the learned counsel is also devoid of merit. As already stated, at the time when the decree was passed the petitioner had the right under Article 182 to postpone the execution of his decree till the decision in the appeal which the respondent had preferred from the High Court. The subsequent repeal of Article 182 by the Law. Reforms Ordinance could not have the effect of taking away this right. In this context the provisions of section 6 of the General Clauses Act are, relevant. This section states Where---------------any Central Act---------------..Repeals any enactment ----------------- -then unlesssa different intention appears, the repeal shall not .........
(c) affect any" right, privilege, obligation or liability acquired, accrued or incurred under any enactment so repealed---------------"
By operation of these provisions the right of the petitioner to apply for execution after the disposal of the appeal which was pending at the time of the repeal was not affected.
10. The next contention of the learned counsel for the respondent was that the provisions relating to limitation were merely of a procedural nature and for that reason no one had any vested right in them; consequently, any amendments in the law of limitation had retrospective effect and they applied even to the pending proceedings. In support of his contention he referred to a number of authorities. It is unnecessary to refer to these authorities for the proposition canvassed by the learned counsel is a well established but then C it has also been settled for long that changes made in the procedural law cannot be so construed so as to affect vested or substantive rights.
Thus, in Adnan Afzal v. Sher Afzal (PLD 1969 SC 187) Hamoodur Rahman, C. J. Observed :- "The general principle with regard to the interpretation of statutes as laid down in the well known case of the Colonial Sugar Refining Company Limited v. Irying 1905 A C 369 is that, if the matter in, question be a matter of procedure only, the provisions would be retrospective. 'On the other hand, if it be more than a matter of procedure, if it touches a right in existence at the passing of the Act', then `in accordance with a long line of authorities ex tending from the time of Lord Coke to the present day', the legislation would not operate retrospectively, unless the Legislature had either' by express enactment or by necessary intendment' given the legislation retroactive effect."
To seek execution of his decree is a substantive right of a decree-holder. Unless a contrary intention is discernable any amendment in the procedural law; including limitation, cannot be so interpreted, as to take away or abridge that right. Reference in this context is invited to National Bank of Pakistan v. Hyderabad Tando Fazul Bus Service (1980 CLC 1146) and Nazir of High Court v.
Ha/1 Dost Muhammad (1981 CLC 372). In the present case the respondent's appeal was pending in the High Court when the Law Reforms Ordinance was promulgated. At that time the petitioner had a right to apply for execution after the decision in the appeal. The repeal of Article 182 by the Ordinance could not be construed so as to make his decree suddenly incapable of execution by law of limitation.
11. Finally, the learned counsel for the respondent argued that from the perusal of the provisions of the Law Reforms Ordinance it was clear that the repeal of Article 182 was intended to operate retroactively so as to affect those decree-holders also who by taking advantage of this Article had deferred initiating execution proceedings till the decision in the appeals pending against their decrees. Although he frankly conceded that there was no express provision to that effect in the Ordinance yet he maintained that the intention to give retrospective effect to the repeal was discernable from its scheme. In support of his contention he referred to the cases of Muhammad Abdullah v. Imdad Ali (1972 SCMR 173), Ali Ahmad v. Muhammad Fazal (PLD 1973 Lah. 207), Rashid Rayon Mills v. Amin Yausaf Nizami (PLD 1975 Kar. 96) and Bashir v. State (PLD 1979 Lah.79). In our opinion none of these cases is of any relevance to the case before us. In Muhammad Abdullah v.
Lmdad Ali the Supreme Court considered the effect of the amendment introduced in section 537 of the Code of Criminal Procedure and hold that as these amendments were of procedural nature they had retroactive operation. The case reported as Ali Ahmad v. Muhammad Fazal related to the execution of a decree passed in a pre-emption suit. The pre-emptor deposited the purchase money in Court but took no steps for the execution of the decree. Later, he applied for the attestation of a mutation in his favour in accordance with the decree. This application was resisted by the vendee. The High Court took the view that the mere fact that the pre-emptor had not applied for the execution of the decree did not imply that he had lost all his rights there under particu--larly when he had privately taken possession of the property in dispute. In Bashir v. State, the question for consideration was whether after the repeal of section 288 of the Code of Criminal Procedure, the prosecution could use a statement recorded by the Committing Magistrate as a substantive piece of evidence. The case of Rashid Rayon Mills Amin Yousaf Nizami is about the construction of the proviso to section 3 of the Law Reforms Ordinance which saved the pending appeals filed under the Letters Patent. p We do not think that the rule laid down in this case has any bearing whatsoever on the effect of the repeal of Article 182 of the Limitation Act.
12. For the reasons stated above we find no merit in the cross-objections which we hereby dismiss with costs.
M. Y. H. Cross-objection dismissed