RASAAL HASAN SYED, J.--Petitioners in this civil revision have challenged order dated 11.10.2018 of the learned Additional District Judge, Vehari whereby objection to the execution was allowed and in consequence the execution petition was dismissed.
2. Petitioners' predecessor filed a suit for specific performance on the basis of oral agreement dated 10.7.1989; the suit was initially decreed but in appeal, the case was remanded to the trial court and in the post-remand proceedings the suit was dismissed vide judgment and decree dated 31.5.2005. Appeal filed by the petitioners was partly accepted on 24.2.2006 by the learned Addl. District Judge Vehari, in result the suit was decreed only to the extent of return of Rs.3,05,000/- along with mark up as per scheduled bank till the realization of the decretal amount. Being not satisfied with the partial decree, the petitioner filed second appeal (R.S.A. No. 19/2006) and prayed for the grant of specific performance of agreement. The appeal remained pending for considerable time and, eventually, the petitioners opted to withdraw the same with a view to execute the decree as it was. In this backdrop, on the statement of the counsel for the petitioners, the appeal was disposed of as not pressed. Operative part of the Order dated 21.5.2015 in R.S.A. No. 19/2006 reads as follows:-- ",.. Learned counsel for the appellants states that on reconsideration appellants wants to file an execution petition for recovery of the amount, along with interest, in accordance with para 15 of the judgment of the learned first appellate court, therefore, states that the appellant does not want to press this appeal any further.
2. This appeal stands disposed of as not pressed. Appellant may move before the learned Executing Court for execution of the decree passed by the learned first appellate court mentioned in para 15 of the judgment dated 24.2.2006"
3. Petitioner thereafter filed execution petition on 23.5.2015 in which objections were filed. One of the objections was with regard to limitation. It was claimed that the execution petition having been filed after nine years though it could only be filed within three years under Article 181 of the Limitation Act, 1908, was barred by time. On receiving the evidence and considering the points raised from both sides, the learned Judge Executing Court dismissed the objections vide order dated 27.2.2018.
4. Feeling aggrieved by the outcome, respondents Fawad Nawaz, etc. filed an appeal which was allowed by the learned Addl. District Judge Vehari vide order dated 11.10.2018. The order of executing court, in consequence, was set aside; objection petition was allowed and the execution petition was dismissed as time-barred. Against the said order, the instant revision petition has been filed.
5. Learned counsel for the petitioner argued that the order could not sustain, execution petition was within time, execution petition having been filed within three years from the date of disposal of R.S.A. No. 19/2006, the same could not be declined on incorrect assumption of being barred by limitation and that the execution could continue against the non-appealing judgment-debtors.
6. Contrariwise learned counsel for the respondents while supporting the order submitted that the petitioner voluntarily withdrew their second appeal which was disposed of accordingly; no decision was rendered in second appeal by the High Court; the decree of trial court did not merge into the order of the revisional court and that the operation of the decree or its execution having not been stayed or suspended in appeal, limitation would keep on running and since the petitioner did not file execution within three years from the date of original decree passed in appeal by the learned Addl. District Judge, the objections were rightly allowed by observing that the execution petition was filed after more than nine years hence it was barred by time.
7. From facts noted hereinabove it is manifest that suit for specific performance was dismissed by the learned Civil Judge in the post-remand proceedings and that in appeal the petitioner was allowed the relief, partly, to the extent of recovery of the amount of Rs.3,05,000/- with mark up while specific performance claimed by the petitioner was declined. Petitioners did file appeal but the operation of the judgment of learned Addl. District Judge was never suspended nor the petitioner claimed for suspension of decree. It is not the case of the petitioner that the operation of the decree was ever suspended in appeal or its execution was kept in abeyance by the appellate court. Being so, the petitioner was at liberty to execute the decree as it was and obviously the limitation would continue running from the date of decree unless it was suspended or its execution was kept in abeyance. Under Article 181 of the Limitation Act, 1908 the petitioner could file the first execution petition A within three years from the date of decree. The decree in this case was passed in appeal by learned Additional District Judge on 24.2.2006; the period of three years would obviously expire on 23.2.2009 as there was no order for suspending operation of decree nor its execution was ever stayed. The limitation under the rule kept on running against the petitioner and ultimately it expired on 23.2.2009. The execution application, which was first application, having been filed on 23.5.2015 i.e. after nine years from the date of the decree in appeal, was obviously barred by time.
8. Petitioners' case before the learned Additional District Judge was that the execution was filed within three years from the date of judgment/order of the learned Single Judge of High Court by which the second appeal i.e. R.S.A. No. 19/2006, was disposed of as not pressed. The argument appears to have been raised in oblivion to section 15 of the Limitation Act, 1908 which contemplates that the limitation to execute the decree starts running from the date of the judgment/decree and that mere filing of the appeal will not suspend or stay the period of execution unless the suspension order or stay of execution is specifically made in the appeal. In "Ghulam Mehdi and 4 others v. Mst. Bhaghan and 4 others" (PLD 1989 Lah. 314) it was observed by the learned Single Judge of this Court that the limitation starts from the signing of the judgment by Court and that the provision of section 15 of the Limitation Act, 1908 is only interpreted by the circumstances mentioned in the section i.e. the decree sought to be executed is stayed by the issuance of injunction or order from the Court.
9. In "Bakhtiar Ahmad v. Mst. Shamim Ahktar and others" (2013 SCMR 5) this aspect of the matter was considered by the honourable Supreme Court. In the said case a suit for possession was dismissed by the learned trial court, appeal filed against it was also dismissed; the civil revision filed before this Court was accepted and suit was partially decreed vide judgment dated 17.3.2003. Against the said judgment, C.P.L.A. No. 1051/2003 was filed which was dismissed by the honourable Supreme Court vide judgment dated 31.3.2005.
An application for execution was filed by the decree-holder on 03.12.2007 in which an objection petition was filed on the ground that the execution was time-barred. The executing court vide order dated 14.2.2009 by accepting the objection petition dismissed the execution petition of the decree-holder; appeal was filed against the said order which was dismissed by the learned Addl. District Judge on 10.2.2009. In Civil Revision No.117/2010, the learned Single Judge of this Court affirmed the order of the executing court, dismissing the execution as barred by time. The three orders were challenged in the august Supreme Court in C.P.L.A.
No.1051/2003., An argument was raised that limitation to execute the decree would commence from the date on which the honourable Supreme Court dismissed the petition for leave to appeal and not from the date when the partial decree was granted. The argument did not find favour with the honourable Supreme Court where the petition for leave to appeal was dismissed, order of the court below was affirmed and it was held that mere filing of the petition will not automatically enlarge the time of filing execution application unless the appeal was allowed. In this view of the observations, the orders of courts below whereby the limitation was calculated from the date of partial decree and execution filed beyond three years were affirmed by the honourable Supreme Court. In view of the rule referred hereinbefore the objection raised by the learned counsel for the petitioner in the instant petition is without substance.
10. The alternative argument of the learned counsel that the judgment of the Addl. District Judge had merged into the Order of the High Court whereby R.S.A. No. 19/2006 was simply allowed to be withdrawn is also not well-founded. The question as to whether and in what circumstances and in which cases the decree merges into the decree of the higher forum remained under deliberation in number of cases and finally this issue was resolved by the judgment of the honourable Supreme Court in the case of "Sahabzadi Maharunisa and another v. Mst. Ghulam Sughran and another" (PLD 2016 SC 358) where the honourable Supreme Court ruled to the effect that in the cases where the appeal/revision is dismissed for non-prosecution, for lack of jurisdiction, for lack of competence/maintainability; as barred by law, as barred by time; withdrawal of the matter by the party; for the lack of locus standi; or decided on the basis of a compromise or it is rendered infructuous or been disposed of as having borne fruit or abated or dismissed on the ground of availability of remedy, the judgment of the court below challenged in appeal/ revision would not merge in the judgment of the appellate or revisional court. In the instant case the petitioner voluntarily withdrew the appeal in order to execute the decree under challenge as it was and without any modification or alternation and being so the judgment of the trial court did not merge into the order of the appellate court. The petitioner could not, therefore, urge that the limitation would start from the date of disposal of second appeal.
11. In the circumstances noted supra it is obvious that the petitioners were only granted decree for the return of Rs.3,05,000/- with mark up in their first appeal; while the relief of specific performance was declined by the courts i.e. civil court and first appellate court. In the second appeal filed by the petitioner i.e. R.S.A. No.19/2006, the decree was not suspended nor its execution was stayed nor it was ever decided on merits nor this Court modified the decree. The appeal, as requested, was simply disposed of as not pressed. This being so the execution petition could be filed by the petitioner within three years from the date of the decree of first appellate court dated 24.2.2006 and not from the date of withdrawal of the second appeal in this Court. On the day when the execution was filed it was barred by time as instead of filing the same within three years, it was filed after nine years. The learned Addl. District Judge, therefore, rightly set aside the order of the learned executing court and dismissed the execution petition as barred by time.
12. As to the objection that all the judgment-debtors did not file first appeal and only some of them filed the same and therefore the execution could be partly allowed and that the appellate court could not dismiss the execution petition in toto to benefit the non-appealing party; the objection so raised is ill-founded and appears to have been raised in oblivion to the provision of Order XLI, Rule 4, C.P.C. which contemplates that where there are more than one defendants in a suit and the decree appealed from proceeds on any ground common to all of them, any one of the defendants may appeal from the whole decree; and thereupon the appellate court may reverse or vary the decree in favour of all the defendant as the case may be. Rule 33 of Order XLI, C.P.C. contemplates that the appellate court shall have the power to pass any order which ought to have been passed and to pass such further orders as may be required and this power may be exercised by the court notwithstanding that the appeal is as to part of the decree only and may be exercised in favour of all or any of the respondents or parties, although such respondents or parties may not have filed any appeal or objection: In "Haji Rehmdil v. The Province of Balochistan and another" (1999 SCMR 1060) it was observed by the honourable Supreme Court to the effect that Rule 33 of Order XLI, C.P.C. empowered an appellate court specifically to grant relief even to the non-appearing respondents and at any time. Having found the suo motu revisional powers of the High Court to be available, the august Supreme Court did not deem that such objections, as aforesaid, remained of any significance.
13. The decree being indivisible, its execution having been found to be barred by time, the same was liable to be set aside in toto. The appellate court rightly exercised its jurisdiction by virtue of the provisions of law supra and in doing so no error of law was committed. The order passed by the learned Addl. District Judge being in accordance with law, no mis-reading of record could be pointed out; as such, no ground is made out for interference. Resultantly instant revision petition being devoid of any substance is dismissed.