MUHAMMAD SAJID MEHMOOD SETHI, J----Through instant petition, petitioner has assailed order dated 31.03.2018 and judgment dated 07.06.2018, passed by learned Civil Judge and Additional District Judge, Sialkot, respectively , whereby petitioner's objection petition was concurrently dismissed.
2. Brief facts of the case are that suit for recovery of possession of suit property after removal of constructed material and debris, filed by respondent, was decreed against petitioner by learned Trial Court vide judgment and decree dated 26.07.201 1. Feeling aggrieved, petitioner filed appeal before learned lower Appellate Court, which was dismissed vide judgment and decree dated 20.11.2014. Afterwards, ' respondent filed execution petition, whereupon petitioner filed objection petition seeking dismissal of the execution petition on the ground of being barred by time from the date of decree passed by learned Trial Court, which was resisted by respondent, by filing written reply . After hearing arguments, the objection petition was dismissed vide order dated 31.03.2018, appeal against said order was also dismissed vide judgment dated. 07.06.2018. Hence, instant revision petition. '
3. Learned counsel for petitioner submits that impugned decisions are against law and facts. He adds that execution petition was barred by limitatio n and operation of judgment and decree of learned Trial Court was not stayed by learned Appellate Court, thus, mere filing of appeal cannot operate as stay order automatically . He argues that limitation for filing of execution petition is three years from the date of decree as prescribed by Article 181 of the Limitation Act, 1908. He further submits that suit property is unidentifiable and un-demarcated, thus, execution petition is not proceedable. He maintains that an amount of Rs.5,15,018/- is being claimed, which was not part of the decree. In support, he has referred to Bakhtiar Ahmed v. Mst. Shamim Akhtar and others (2013 SCMR 5) and Muhammad Iqbal v. Additional District Judge, Rahimyar Khan and others (PLD 2011 Lahore 497).
4. Conversely , learned Law Officer subm its that suit property is well defined and identified, it was an evacuee property owned by the Government and acquired by respondent-department as per law. He adds that execution petition was within time as decision of learned Trial Court merges into appellate decision and limitation would reckon from the date appellate decision He further argues that leave granting or refusing order of Hon'ble Apex Court is not a judgment, thus, has no binding effect. He maintains that amount of rupees five lacs as compensation was claimed in the prayer of the suit, which has been concurrently decreed in favour of respondents. In support, he has referred to Kareem Nawaz Khan v. The State through PGP and another (2016 SCMR 291), Sahabzadi Maharunisa and another v. Mst. GhuM m Sughran and another (PLD 2016 Supreme Court 358) and Pervaiz Rasheed and others v . & Of ficio Justice of Peace and others (2016 YLR 1441 ).
5. Arguments heard. Available record perused.
6. The main question posed through instant petition is from which date the limitation for filing of execution petition for enforcement of decision of Civil Court would commence; whether from the date of decision of Trial Court or Appellate / Revisional Court. Section 15 of the Limitation Act, 1908, deals with exclusion of time during which the execution proceedings remained suspen ded while computing period of limitation. However , decree of the Trial Court continues to maintain its identity and is capable of execution. Order XLI, Rule 5, C.P.C. provides that mere filing of appeal does not operate as a stay of the execution of the decree, but Appellate Court is empowered to issue stay order . The object of this provisi on is that decree-holder is not deprived of the relief to which he has been found entitled by the Court and at the same time mere filing of execution petiti on does not render the appeal infructuous. It appears 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 exec ution but when the Court of last instance passes the decree that can be executed, irrespective of the fact that the decree of the lower Court is affirmed, reversed or modified. Undoubtedly , no limitation has been provided for execution of a decree of the Civil Court which has merged into decree of the final Appellate / Revisional Court under a specific Article of the Limitation Act. In this eventuality and in absence of any such specification by Section 48 of the Code of Civil Procedure, 1908, provisions of Article 181 of the Limitation Act would be attracted, which provides commencement of limitation from accrual of right to apply and such right would start when the appeal / revision is finally disposed of by the last higher forum. Reference can be made to Maulvi Abdul Qayyum v. Syed Ali Asghar Shah and 5 others (1992 SCMR 241), Muhammad Nazir and another v. Qaise r Ali Khan and 4 others (2003 SCMR 436), Dost Muhammad v. Muhammad Rafiq (2003 YLR 1908 ), Rasheed Ahmad and 7 others v. Farrukh Ameen and 3 others (2016 YLR Note 87) and Nagendra Nath Dey and another v. Suresh Chandra Dey and others (A.1.R.
1932 Privy Council 165) .
7. In the case of Dost Muhammad supra, the suit was decreed on 31.03.1986, consequent appeal and revision were dismissed, CPLA was also dismiss ed on 14.01.1999 and Execution Petition was filed on 04.02.2002. This Court clearly observed that in the said case, limitation of three years provided under Article 181 of the Limitation Act would start from the decision of Hon'ble apex Court. A further favourable observation for the decree holder was rendered by this Court, allowing him to approach revenue functionaries for implementation of decree, even if the execution petition is barred by limitation as right and title of the decree holder to the suit property , acquired by the decree, was not extinguished.
In the case of Nagendra Nath Dey supra, the Indian Privy Council, while interpreting Article 182 of the Limitation Act, 1908, (since omitted by the Law Reforms Ordinance, 1972) has clearly observed that where appeal is sub judice for decision of a question, the execution period would be suspended and time would run from the date of Appellate Court's decree.
In the case of Muhammad Nazir supra , the Hon'ble Supreme Court has made following observations:- ".... The appeal being continuation of suit, the decree in the suit would only be finalized on the disposal of appeal as the decree of the Court of first instance would merge into the decree of Appellate Court which alone could be executed. However , till the time appeal or revision was not filed or such proceedings were pending and no stay order was issued, the decree would remain capable of execution but if tile decree was under challenge in pending appeal or revision and was not executable, the decree ultimately passed by the decree of the Court of last instance in appeal or revision as the case may be would be executed irrespective of the fact that the decree of the lower Court was modified, affirmed or reversed . Thus if a decree is under challenge in appeal and cannot be executed, the limitation for filing an execution petition would not run against the decree-holder pending disposal of appeal...."
8. The main reliance of learned counsel for petitioner is upon the case of Bakhtiar Ahmad supra and ratio decidendi of said case is required to be comprehended in the light of its peculiar facts and circumstances. In the said case, the suit was dismissed by learned Trial Court, appeal was also dismissed, Civil Revision was decided by High Court on 17.03.2003, whereby suit was partly decreed and CPLA was dismissed by Hon'ble apex Court on 31.03.2005. While deciding question of limitation, the Hon'ble Supreme Court in Para 9 of the judgment observed that the time would run from the date of passing of decree of High Court i.e. 17.03.2003. It was further observed that remedy of petition for leave to appeal before the apex Court is not parallel to statutory remedy of appeal or revision unless converted into an appeal and unless suspension order is issued or petition is converted into appeal, limitation period could not be presumed to have been halted. It has been furthe r clarified that if some relief is granted by the apex Court after allowing the appeal with leave of the Court then the order would merge into decisions of lower fora and limitation would run from the order of the Supreme Court.
9. In somewhat recent pronouncement of Hon'ble apex Court in the case of Sahibzadi Maharunisa supra where question "Which Court is to be considered the Court passing final judgment, decree or order within the meaning of Section 12(2), C.P.C. where an aggrieved person shall file such application" was involved. The Hon'ble apex Court has made certain observations, the most relevant are reproduced hereunder:- "9. With respect of these four situations, our conclusion is as under:-
(i) In the cases where the remedy of appeal / revision is provided against a judgment etc. or a remedy of writ is availed, the appellate/revisional/constitutional forum records reasons on the consideration of the issues of law and/or fact the judgment etc. of the subordinate court/forum will merge into the decision of the appellate court etc. irrespective of the fact that such judgment reverses, varies or affirms the decision of the subordinate court/forum and its decision will be operative and capable of enforcement on the principle of merger , the application under Section 12(2) of the C.P.C. will be maintainable before the appellate/revisional/constitutional forum (High Court, District Court, Tribunal or Special Court as the case may be);
10. In the instant case, the matter went up to the level of learned lower Appellate Court, thus, stood finally decided on 20.11.2014. Resultantly , limitation period for filing of Execution Petition would reckon from the date of appellate decision, as rightly observed by learned Court below .
11. In view of the above, instant revision petition, being devoid and any merit, is hereby dismissed. No order as to costs.