SHAKEEL AHMAD, J.---By this common judgment, I intend to dispose of F.A.Os. Nos. 14-A/2019, 15-A/2019, 19- A/2019, 20-A/2019, 22-A/2019, 23-A/2019, 27-A/2019, 28-A/2019, 32-A/ 2019 and 33-A/2019, as all these appeals have not only sprung out of identical orders but the facts and law involved in all the appeals are also identical. These appeals have been filed under section 104 read with section 151 of C.P.C. by the appellants against the order dated 06.05.2019, pass ed by the learned Executing Court/Additio nal District Judge-II Abbottabad whereby applications filed by the appellants for dismissal/ rejection of execution petition on the ground of limitation was dismissed.
2. The facts relevant for the purpose of disposal of the present appeals, in brief are that the appellants acquired land measuring 1097 Kanals and 17 marlas for public purpose. The Land Acquisition Collector Abbottabad initiated proceedings and finally announced award No, 176 on 10.05.2004. The effectee s filed objection petitions under section 18 of the Land Acquisition Act 1894, whereupon the Referee Judge enhanced the compensation to Rs.500,000/- per Kanal along with 15% compulsory acquisition charges and 6% simple interest vide judgment and decree dated 20.12.2010. The appellant went in appeals which were dismissed by this court through judgments dated 22.10.2014. The appellant challenged Such if judgments dated 22.10.2014 before the August Supreme Court, which was dismissed being barred by time vide judgment dated 13.02.2018. Not contented with the same. appellant filed review petitions, but the same were also dismissed vide order dated 04.06.2018, whereafter the respondents filed execution petitions on dif ferent dates, details whereof is reflected from the following schedule:.
Appeals Nos.Title Date of filing of Execution Petition 14-A/2019 DG CWO v . Haji Banaras and 02 others 19-05-2018 15-A/2019 DG CWO v . Rashida Begum and 02 others 05-06-2018 19-A/2019 DG CWO v. Muhammad Yousaf and 02 others08-05-2018 20-A/2019 DG CWO v . Ansar Khan and 09 others 05-06-2018 22-A/2015 DG CWO v . Wali Astan and 30 others 19.05.2018 23-A/2019 DG CWO v. Ghazanfar Javed Khan and 04 others05-06-2018 27-A/2019 DG CWO v . Muhammad Aslam and 06 others 08-05-2018 28-A/2019 DG CWO v. Qazi Abdul Ghafoor and 09 others19-05-2018 32-A/2019 DG CWO v . Irtaza Khan and 02 others 19-05-2018 33-A/2019 DG CWO v . Zaitoon Bibi and 09 others 08-05-2018
3. After service of summons, the appellants/judgment debtors put their appearance before the learned Executing Court and filed application under sections 47 and 151 of C.P.C. read with Article 3 of the Limitation Act, 1908 for dismissal of the execution petition on the ground of limitation. The learned Executing Court/Additional District Judge-II, Abbottabad after providing an opportunity of hearing to the learned counsel for the parties dismissed objection petitions through separate order dated 06.05 2019, hence, these appeals.
4. It has been argued by learned counsel for the appellant that first application for execution of decree is governed by residuary Article 181 of the Limitation Act, 1908. He next contended that respondents/decree-holders did not file execution petitions within prescribed period of three years in terms of Article 181 of the Limitation Act, 1908. He further argued that respondents/ decree-holders filed execution petitions, after more than three years which were clearly barred by time and prayed for setting aside the impugned orders and dismi ssal of execution petitions being barred by time.
5. As against that, the learned counsel appearing on behalf of respondents/decre e-holders contended that in all these cases final judgment was passed by the august Supreme Court of Pakistan on 13.02.2018, whereafter , appellant filed civil review petition which too was dismissed on 04.06.2018, and after final adjudication respondents/ decree-holders filed execut ion petitions, which were well within time and impugned orders need no interference. They next contended that respondents' land was acquired on 10.05 .2004, they have already faced agonies of protracted trial and appellant wants to deprive the Decree-Holders from the benefits of decree, which has been passed in their favour on 20.12.2010, affirmed in appeals on 22.10.2014 and finally adjudicated upon by the august Supreme Court of Pakistan on 13.02.2018, where against review petition was dismissed on 04.06.2018, and prayed for dismissal of appeals.
6. I have heard the learned counsel for the parties at length and have also carefully examined the entire record appended with appeals with their valuable assistance.
7. The main issue to be resolved in these appeals, is as to what is the limitation for filing of first execution application and since when it will start i.e. either from the date of original decre e or from the date of appellate decree (Even if original decree is neither suspended nor ultimately modified) or from the judgment/order of Supreme Court dismissing the appeals being barred by time.
8. In order to resolve the issue I would take up the question of limitation for filing of the execution application in order to see as to whether the execution petitions filed by the respondents / decree -holders were filed within time or these were time barred?
9. It is by now settled that after promulgation of Law Reforms Ordinance (XII of 1972) first application for execution of a decree would be governed by resid uary Article 181 of the Limitation Act, and rest of the application made, thereafter , would be governed by six years period of limitation as provided by 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 that decree can be executed, irrespective of the fact, that the decree of the lower Court is affirmed, reversed or modified." It was also held that the merger is for limited purpose of computation of period of limitation for execution of the decree. It was further observed "Another issue before us is, whether the rule of merger which is usually regarded as an attribute of appellate jurisdiction can be extended to the revisional jurisdiction and the decree of the Revisional Court modifying or af firming the decree of the lower Court furnishes starting point of limitation under Article 181.
While replying this question Supreme Court held "Thus in a way revisional jurisdiction partakes of appellate jurisdiction" the Hon'ble Supreme Court concluded in para.9, these judicial announcements leave no room for doubt and for the purpose of execution rule of merger equally applies to the decree passed in exercise of revisional jurisdiction. When Article 181, unlike Article 182 which has disappeared from the statute hook, does not refer to decree of the Appellate Court or Revisional Court but anchors the commencement of period of section 48 of C.P.C.
In this context reference may be made to the cases reported as Mehboob Khan v. Hassan Khan Durrani PLD 1990 SC 778, National Bank of Pakistan v. Aziz-ud-Din 1996 SCMR 759 and Maqbool Ahmad v. Shahzad Tabasum 1995 CLC 358 .
10. To begin with, I first take up the case of Moulvi Abdul Qayyum v. Syed Asghar Shah, reported in 1992 SCMR 241 wherein the August Supreme Court by reproducing Article 181 of the Limitation Act, at page 245 of the judgment held that, period of three years would commence from the date of accrua l of right to apply for execution, but when such right arises this article is silent. It was observed as under:- "the question requiring determination in this case is whether the period of limitation would start from the date of decree of the appellate Court (in which judgment of trial Court remained under suspension) or the one passed by the High Court in revision (where no such suspension of the judgments of both the Courts were ordered). The Hon'ble Supreme Court said while comme nting upon the judgment of Lahore High Court "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 the decree of Court of first instance, merged into decree of Appellate Court, which alone can be executed, was not present in 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 that decree can be executed, irrespective of the fact, that the decree of the lower Court is affirmed, reversed or modified." It was also held that the merger is for limited purpose of computation of period of limitation for execution of the decree. It was further observed "Another issue before us is, whether the rule of merger which is usually regarded as an attribute of appellate jurisdiction can be extended to the revisional jurisdiction and the decree of the Revisional Court modifying or A affirming the decree of the lower Court furnishes starting point of limitation under Article 181.
While replying this question Supreme Court held "Thus in a way revisional jurisdiction partakes of appellate jurisdiction" the Hon'ble Supreme Court concluded in para.9, these judicial announcements leave no room for doubt and for the purpose of execution rule of Merger equally applies to the decree passed in exercise of revisional jurisdiction. When Article 181, unlike Article 182 which has disappeared from the statute hook, does not refer to decree of the Appellate Court or Revisional Court but anchors the commencement of period of limitation on the accrual of right to apply and such right legitimately arises when revision against the decision of the lower Court is in one way or the other disposed of.
12. That notwithstanding, any other judgment only the case of Moulvi Abdul Qayyum , referred supra brings us to hold that rule of merger is not restricted to appeal but is extended to the remedy of revision also provided such appeal or revision is decided on merits. Secondly , the rule of merger is meant for computation of the limitation period for filing of the execution application, whether the impugned judgment before Appellate Court and Revisional Court remained under suspension or not or whether the judgment of the trial Court was affirmed or modified by the appellate or revisional Court."
In this respect reference may also be made to Sardar Begum's case reported in 2001 SCMR 1636 where it was held as under: we therefore, dispose of this appeal with the observation that the execution petition for the execution of decree, dated 20-12-1980 was not barred by time on account of the principle of merger". It may be appreciated that the judgment of Supreme Court against the decree, dated 20-12-1980 was finally passed on 11-3-1990 and the execution application was held to be within time relying on the same doctrine of merger . Therefore, we are of the considered view that the execution application filed on 12-12-1998 was well within time."
11. Admittedly , the appellant had assailed the judgment of this court through separate Civil Petitions, which were contested by the respondents/ decree-holders and the same were dismissed vide judgment dated 13.02.2018, not on merits, but being barred by time, whereafter execution petitions were filed.
12. In view of the above, I hold that right to file the execution petitions accrued to the respondents / decree-holders after dismissal of appeals by the Apex Court on 13.02.2018, though on limitation, not on merits, because the appeals were contested by the respondents by putting their appearance through their counsels, therefore, the period of limitation in all those cases would commence from the date of judgment/ order of the august Supreme Court, therefore, the execution petitions filed by the respondents are held to be not barred by time.
13. It is settled law that each and every case is to be decided on its peculiar circum stances and facts of the case as laid down by the Apex Court in Muhammad Saleem's case 1994 SCMR 2213 . It will be material to keep in mind that a decree for payment of compensation under Land Acquisition Act is of a peculiar nature. In the instant case land of the respondents / decree-holders was acquired on 10.05.2004, but despite lapse of more than fifteen long years the compensation awarded by the Referee Judge could not be paid to them due to protracted litigation and it would not be fair to deprive them from fruit / benefit of decree as laid down by the August Supreme Court of Pakistan in the case reported as Syed Phul Shah v. Muhammad Hussai n PLD 1991 SC 1051 , wherein it was observed as under:- "It is also a well known principle in Islamic Justice, that one who succeeds in a litigation unjustly must not retain the benefit. It has been equated with burning charcoal in one's pocket; which burns an eats away the winner's belongings including the retaining pocket also. Thus, while trying our best to do justice in accordance with law, the principles in our own jurisprudence governing just dispensation shall have to be kept in view. In other words while adhering to principle: justice in accordanc e with law, we will have to keep in mind that it is the birth right of every citizen in an Islamic State to seek and obtain justice. In this exercise of keeping balance between undiluted justice and justice only in accordance with law , the general direction principles in Islam come to the aid when, exerts.
14. The upshot of the above discussion is that this and the connected appeals bearing Nos. 15-A/2019, 19-A/ 2019, 20-A/2019, 22-A/2019, 23-A/2019, 27-A/2019, 28-A/2019, 32-A/2019 and 33-A/2019, being bereft of any merit are hereby dismissed in limine .