WIQAR AHMAD, J. This order is directed to dispose of Civil Revision No. 24-P of 2010 filed by the petitioners against the judgment dated 22.06.2010 of the Court of learned Additional District Judge/Izafi Zila Qazi Behrain Swat, whereby the appeal filed by respondents No. 1 to 7 was accepted and the order of the learned Civil Judge dated 12.03.2010 was set aside and the execution petition filed by the petitioners was dismissed.
2. The petitioners had instituted a suit in the Court of learned Senior Civil Judge/A'ala Illaqa Qazi Swat on 14.10.1996. The said suit was proceede d and finally decreed in their favour vide order dated 01.02.2002 of the learned Civil Judge/Illaqa Qazi-III Swat. A petition for execution of the decree was however brought by the petitioners on 10.07.2006. The judgment debtors filed an application for dismissal of the execution petition for being barred by the law of limitation. The learne d executing Court rejected the application of the respondents No.1 to 7, who filed an appeal there-against in the Court of learned District Judge Swat. The said appeal was accepted vide order dated 22.06.2010 of the learned Additional District Judge/Izafi Zila Qazi Behrain District Swat. Feeling aggrieved therefrom the petitioners have invoked the revisional jurisdiction of this Court under section 115 of the Code of Civil Procedure, 1908 (hereinafter to as "CPC").
3. Learned counsel for the petitioners contended that the period of limitation for filing an application for execution of the decree has been provided in section 48 of the CPC and therefore the limitation provided in Article 181 of the First Schedule of Limitation Act have not been applicable in this case.
4. Learned Astt: Advocate General appe aring on behalf of contesting responde nts No. 1 to 7 relied upon the judgments in case of "House Building Finance Corporation of Pakistan v/s Rana Muhammad lqbal through LRs" reported as "2007 SCMR 1929 ", in the case of "Secretary to Govt: of the then NWFP now KPK Forrest Department, Peshawar and another v/s Abdur Rehman and others" reported as "2000 CLC 1047 (Peshawar)" and in the case of "Malka and 4 others v/s Sultan and another" reported as "2008 CLC 197 (Lahore)" and contended that the limitation for filing first application for execution of the decree is governed by Article 181 of the First Schedule to Limita tion Act, where the period of limitation has been provided as three years, while the application in hand has been filed after more than four years of the pass ing of the judgment and decree, therefore, same was expressly barred by law of limitation, which was rightly dismissed vide the impugned judgment.
5. Learned counsel for the legal heirs of respondent No. 8 supported the learned Astt: Advocate General and adopted his arguments.
6. Arguments heard and record perused with the able assistance of learned counsel for the parties.
7. The fate of the instant petition revolves around resolution of the question of law as to whether the application of the petitioners filed for execution of the decree in the learned executing Court was governed by section 48 of the CPC or Article 181 of the Schedule First of the Limitation Act. The former provides a period of limitation of six years while the latter has given a maximum of three years for filing an application for execution of the decree. There is no cavil with the proposition that where period of limitation is provided for any legal proceedings in the Limitation Act or anywhere else in the Statute then recourse may not be made to the provisions of Article 181 of the First Schedule of the Limitation Act. The wording of Article 181 is clear itself to the extent of specific period of limitation prescribed by the provisions of Limitation Act and section 48 of the CPC, but this cannot be limited to the Limitation Act or section 48 of the CPC, rather applies wherever period of limitation is provided for instituting any legal proceedings under any provision of a Statue. But the case of the petitioners is not the one covered by section 48 of the CPC.
Section 48 CPC is reproduced hereunder for ready reference; Section 48 of the CPC Execution barred in certain cases.--(1) where an application to execute a decree not being a decree granting an injunction has been made, no order for the execu tion of the same decree shall be made upon any fresh application presented after the expiry of six years from--
(a) the date of the decree sought to be executed, or
(b) where the decree or any subsequent order directs any payment of money or the delivery of any property to be made at a certain date or at recurring periods, the date of the default in making the payment or delivery in respect of which the applicant seeks to execute the decree.
(2) Nothing in this section shall be deemed (a)to preclude the Court form ordering the execution of a decree upon an application presented after the expiration of the said term of six years, where the judgment-debtor has, by fraud or force, prevented the execution of the decree at some time within six years immediately before the date of the application; or (b)to limit or otherwise af fect the operation of article 183 of the First Schedule to the Limitation Act, 1908".
It provides that no order for execution of the decree shall be made upon any fresh application presented after expiration of the six years from the date of the decree sought to be executed. The words "any fresh application" are of utmost importance, which means an application filed in a situation when the decree-holder had first applied for execution of the decree but the decree or its part remained unsatisfied due to any reason including filing of appeal, revision or other proceedings which may have caused stay or disposal of the first application. In such a situation if a fresh application is filed, same would be governed according to the regime provided for in section 48 CPC. The first execution application would therefore be governed by Article 181 of the Limitation Act which provides a period of three years for filing an application for execution of the decree. In a similar situa tion the Hon'ble Supreme Court of Pakistan in case of "Mahboob Khan v/s Hassan Khan Durrani" reported as "PLD 1990 S.C. 778", held as follows; The position that emerges from the above discussion is that, as already stated, the first application for execution of a decree would be governed by the residuary Article 181 and the rest of the applications made, thereafter , will be governed by the six years time limit prescribed by section 48. Although the original purpose underlying section 48, read alongwith Articles 181 and 182 of the Limitation Act, before the amendment of the law was to provide maximum limit of time for execution of a decree. But in the changed position as a result of Law Reforms Ordinance, the only effect of section 48 would be to provide limitation for subsequent execution applications after the first one. The result would be that D if no application at all is made within the period prescribed by Article 181, the execution application made, thereafter , would be barred under the said Article and as such there would be no occasion to avail of the benefits of the extended time provided by section 48, C.P.C. In other words once an application for execution is made within time so prescribed, any number of applications for execution can be presented within the six years period from the date of decree . This construction, in my opinion is the only construction that can be placed on the consequent legal position arising out of the amendments made by the omission of Article 182 and substitution of six years period in section 48, C.P.C. Otherwise the provisions for repeated applications every three years or taking steps in aid of execution provided for in Article 182, having disappeared, section 48 would become redundant and inef fective.
(underline is emphasized)
Reliance in this respect is also placed on the judgments in the case of "National Bank of Pakistan v/s Mian Aziz- ud-Din" reported as "1996 SCMR 759", in case of "House Building Finance Corporation of Pakistan v/s Rana Muhammad lqbal through LRs" reported as "2007 SCMR 1929 ", in the case of "Bakhtiar Ahmad v/s Mst. Shamim Akhtar" reported as "2013 SCMR 5" in the case of "Secretary to Govt: of the then NWFP now KPK Forrest Department. Peshawar and another v/s Abdur Rehman and others" reported as "2000 CLC 1047 (Peshawar)" and in the case of "Malka and 4 others v/s Sultan and another" reported as "2008 CLC 197 (Lahore)".
8. The petitioners could nowhere show that they had ever applied for execution of the decree before filing the instant petition dated 10.07.2006 for execution of the decree dated 01.02.2006, which was barred by 16 months and 10 days. The petitioners have rightly been declined the period of limitation provided for in section 48 of the CPC, which was not relevant in their case. The appeal of respondents No. 1 to 7 has therefore rightly been accepted vide the impugned judgment. The petitioners failed to show any illegality or material defect in the impugned judgment, the revision petition in hand is therefore found to be meritless, same is accordingly dismissed.