MUHAMMAD EJAZ SWATI, J. --- The suit filed by the respondents (plaintiffs) for compensation in lieu of their land utilized by the appellant (defendant) for construction of rain water drain at Hub was decreed by Civil Judge, Hub vide judgment/decree dated 26th February, 2001, whereby price of the land in dispute was determined as Rs, 25876.32/- per acre. This Court in Regular First Appeal No, 14 of 2001 vide judgment dated 30th October, 2008 decided the rate of compensation as under:---- "For the foregoing reasons, instant appeal is partly allowed and after reversing findings of learned Civil. Judge on the point of rate we declare appellants to be entitled to compensation at the rate of Rs, 2,63,054/- per Acre and defendants are directed to pay such compensation."
2. The Civil Appeal No, 161 of 2009 filed by the appellant against the aforesaid judgment of this Court was dismissed by the Hon'ble Supreme Court of Pakistan vide order dated 10th November, 2015 with the following observations:--- "This appeal is barred by 35 days. No plausible reason has been offered in the application for condonation of delay. The application for condonation of delay is dismissed and as a consequence this appeal is also dismissed being barred by limitation."
3. The appellant filed a Civil Review Petition No, 784 of 2015 before the Hon'ble Supreme Court of Pakistan, which was dismissed vide order dated 9th November, 2016 with the following observations:-- "Learned ASC for the review petitioner concedes that the Civil Appeal filed by the petitioner was barred by 35 days. This being the position, no case for review is made out. The review petition is therefore dismissed.
However, in case the petitioner has any grievance as regards mathematical conclusion in the impugned judgment of the High Court he may seek a remedy before the appropriate forum."
4. Therespondents/decree-holders filed execution application No, 03 of 2016, the appellant initially objected that no decree passed by this Court is in field and thereafter raised question of limitation in filing execution application. On 24th. February, 2016 (hereinafter the "impugned order"), the executing Court i,e, Senior Civil Judge, Hub passed the order, which has been assailed, through the instant Civil Miscellaneous Appeal.
5. Learned counsel for the appellant contended that the execution application for realization of judgment/decree of this Court was barred by time, that the matter in respect of land used for rain water drain still requires determination, but the executing Court without providing opportunity to the appellant passed the impugned order, which caused gave prejudice to the public exchequer.
Learned counsel for the respondents/decree-holders contended that the mailer related to merit of the case has already been determined upto the Hon'ble Supreme Court and no further determination is permissible during execution proceedings; that the judgment/decree of this Court was assailed by the appellant before the Hon'ble Supreme Court of Pakistan, where, operation of judgment was ,stayed, therefore, after dismissal of civil petition as well as revision petition by the Hon'ble Supreme Court, limitation for filing execution application would recon from the said order.
6. We have heard the learned counsel for the parties and perused the record of the case. The Trial Court had passed the judgment/decree dated 26th February 2001, whereby price of the land in dispute was determined as Rs, 25876.32/- per acre. This Court in RFA No, 14 of 2001 vide judgment/decree dated 30th October 2008 while modifying the decree of the Trial Court determined the rate If compensation as Rs, 2,63.054/- per acre. In Civil Appeal No, 161 of 2009 filed by the appellant against the judgment/decree of this Court, the Hon'ble Supreme Court vide order dated 30th July, 1999 passed ad-interim order that "the operation of impugned judgment is stayed until hearing of leave petition".
7. The respondents/decree-holders had filed execution application No, 03 of 2000 on 28th February, 2000, and the executing Court vide order dated 12th April, 2000 in view of the above-referred stay order of the Hon'ble Supreme Court passed the following order:--- "Counsel for decree-holder present. Representative of judgment-debtor LIEDA present. Execution application was fixed for following of order of Hon'ble Supreme Court but representative of LIEDA submitted copy of order dated 30.4.1999 passed by Hon'ble Supreme Court when in the operation of judgment has been stayed uptill hearing of petition. Therefore the execution application is adjourned till the further order of Hon'ble Supreme Court."
8. Thereafter Civil Appeal No, 161 of 2009 was dismissed by the Hon'ble Supreme Court on 10th November, 2015. The revision petition No, 784 of 2015 filed by the appellant was also dismissed by the Hon'ble Supreme Court of Pakistan vide order dated 9th November, 2016. Admittedly, the respondents' first execution application was pending before the executing Court and it was adjourned till further orders of the Hon'ble Supreme Court. After dismissal of Civil Appeal and Review Petition by the Hon'ble Supreme Court vide order dated 10th November, 2015. and 9th November, 2016, the execution application No, 03 of 2016 was filed on 18th January, 2016 was not time-barred as the learned counsel for the appellant has failed to produce any order of the Hon'ble Supreme Court of Pakistan, whereby ad-interim order of the apex Court dated 30th July, 1999 was modified or recalled prior to final order of the Hon'ble Supreme Court on 10th November, 2015. In the case of Mehboob Khan v. Hassan Khan Durrani, PLD 1990 SC 778, where a Full Bench comprising five Hon'ble Judges of the Hon'ble Supreme Court held that "first application for execution of a decree would be governed by the residuary Article 181 and rest of the application made, thereafter will be governed by the sixyears time limit prescribed by Section 48, C.P.C. Similarly same view was reiterated by the Hon'ble Supreme Court of Pakistan in House Building Finance Corporation of Pakistan v. Rana Muhammad lqbal through L.Rs,, 2007 SCM R 1929, wherein it was observed as under:-- "We have heard the learned counsel for the petitioner at some length and have also perused the available record. 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."
9. On the question as to whether the period of limitation would start from the date of original or appellate decree in which judgment of the Trial Court or High Court remained under suspension or the one where no such suspension of the judgment of both the Courts were ordered. The Hon'ble Supreme Court of Pakistan in the case of Moulvi AbduI Qayyum v. Syed Ali Asghar Shah and 5 others, 1992 241 held as under- "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 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 had decree can be executed, irrespective of the fact, that the decree of the lower Court is affirmed, reversed or modified."
10.In the instant case, the partial decree dated 30th October, 2008 passed by this Court was suspended by the Hon'ble Supreme Court of Pakistan vide ad-interim order dated 30th July, 1999 and Civil Petition filed, by the appellant was dismissed by the Hon'ble Supreme Court on 10th November, 2015 and during this period, the period of limitation has been dogged, therefore, second execution application filed by the respondents/decree-holders on 18th January, 2016 was within time, as such we find no, illegality or irregularity in the impugned order to warrant interference.
In view of the above, Civil Miscellaneous Appeal No, 05 of 2016 is dismissed. Parties are left to bear their own costs. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.