Muhammad Faheem Wali, J.- Petitioners through the instant Civil Revision, filed within the purview of Section 115 of CPC, have called in question the vires of Judgment dated 20.12.2019 passed by the learned District Judge, Hangu, whereby the appeal of petitioner filed against order dated 10.10.2019 of the learned trial court as to dismissal of his execution petition, was dismissed.
2. The factual matrix essential to decide the controversy is that the petitioners instituted a suit seeking therein declaration of ownership in respect of the land, described in the headnote of plaint, issuance of perpetual and mandatory injunction and possession. After processing the suit in accordance with the laid down procedure, learned trial court passed an ex-parte decree dated 13.02.2010 in favour of petitioners, who for execution of the decree, filed a petition which was dismissed on the ground of limitation vide order dated 17.05.2017, which was upheld by the learned District Judge Hangu vide Judgment dated 05.07.2017 but provided petitioners an opportunity to file another execution petition under Section 48 of CPC. Accordingly, petitioners filed another petition for execution of the decree within the contemplation of Section 48 CPC, which too was resisted by respondents on the ground of limitation, and finally the learned executing court dismissed this second execution petition vide order dated 10.10.2019. Petitioners assailed the said order in appeal before the learned District Judge Hangu but the same also had not succeeded and dismissed vide Judgment dated 20.12.2019. Still not satisfied, the petitioners have preferred in the instant Civil Revision before this Court.
3. Arguments of the learned counsel for parties heard and record gone through with their valuable assistance but for the sake of brevity, without reproducing the arguments of the counsels, same will be adequately dealt with at appropriate stages in this judgment.
4. A minute perusal of the record reveals that the first execution petition of the petitioners was dismissed on the ground of limitation and this dismissal was maintained by the appellate court below, however, petitioners were given opportunity to file execution petition within the purview of provisions of Section 48 CPC, which they did but this second execution petition too could not survive and dismissed concurrently by the two learned courts below through the orders dated 10.10.2019 and 20.12.2019, impugned herein the revision. Now the only question for determination before this Court is, 'can the second execution petition be proceeded, or not?', and in this context suffice it to say that the first application for the execution of a decree would be governed by the residuary Article 181 of the Limitation Act, 1908, prescribing a period of three years and any subsequent or fresh application for execution would be governed by the provision of section 48 of C.P.C. which provide six years' time limit for filing of subsequent application of the nature. Section 48 CPC reads as under:
48. 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 execution of the same decree shall be made upon any fresh application presented after the expiration 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 from 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 affect the operation of Article 183 of the First Schedule to the Limitation Act, 1908 (IX of 1908).
5. The expression of 'not being a decree granting an injunction' is in-fact an exception for the injunctive decrees which means that the bar of limitation contemplated in Section 48 CPC does not apply to the petitions for execution of decrees granting injunctions. Learned counsel for respondents, during the course of arguments, laid a great stress over the fact that there were three prayers in the suit of petitioners; first, declaratory, second, injunctive to restrain defendants from interfering in and changing the nature of suit property and, third, for possession by demolishing constructions, if any, over the suit site with particular reference to the contents of plaint where petitioners mentioned the constructions by defendants, and therefore, the decree for injunction to the exclusion of prayers for declaration and possession, cannot be executed, and as such, the same was rightly dismissed. However, this court is not in agreement with the said argument of learned counsel for petitioner, for the simple reason that the second prayer in the suit was for injunction which reads as under:
6. Petitioners in their second execution petition have sought the assistance of court in the following manner:
7. The above extract of prayer in the second execution petition though co-relates to the decree of injunction so granted to petitioners yet additional words mentioned in the execution petition i.e. were needed to be amended to bring the execution fully in line with the aforementioned Prayer 'Bay'. However, instead of getting the execution amended as per Prayer "Bay", both the courts below have dismissed the second petition being time barred and not on the other ground. The procedure for the execution of decree of injunction has been provided under Rule 32 of Order XXI CPC which reads as under:
32. Decree for specific performance, for restitution of conjugal rights, or for an injunction. (1)
Where the party against whom a decree for the specific performance of a contract, or of restitution of conjugal rights, or for an injunction, has been passed, has had an opportunity of obeying the decree and has willfully failed to obey it, the decree may be enforced in the case of a decree for restitution of conjugal rights by the attachment of his property or, in the case of a decree of the specific performance of a contract or for an injunction by his detention in prison, or by the attachment of his property, or by both.
(2) ....
(3) ....
(4) ....
(5) Where a decree for the specific performance of a contract or for an injunction has not been obeyed, the Court may, in lieu of or in addition to all or any of the processes aforesaid, direct that the act required to be done may be done so far as practicable by the decree-holder or some other person appointed by the Court, at the cost of the judgment-debtor, and upon the act being done the expenses incurred may be ascertained in such manner as the Court may direct and may be recovered as if they were included in the decree.
8. The above extracted provisions of sub-rule (1) & (5) of Rule 32, in unequivocal words provide that where the party against whom a decree for an injunction, has been passed, has had an opportunity of obeying the decree and has willfully failed to obey it, the decree may be enforced. In the instant case, respondents having the opportunity of obeying the decree of injunction but they did not obey the same. According to learned counsel for respondents, they are having possession prior to the institution of suit and the position was same on the date of decree, but no execution petition was filed by petitioner at that time, and for this reason, the present petition is hopelessly time barred. If such argument of the learned counsel for respondents is taken as correct, even then this plea is not beneficial to respondents as this shows continuous default in obeying the decree, despite having opportunity, and this fact provides a recurring right to petitioners to file petition for the execution of injunctive decree. As far the objection of respondents as to the executability of the decree for injunction, excluding decrees for declaration and possession, is concerned, sub-rule (5) ibid amply provides the mode and manner to execute such a decree. In this regard this court in the case of "Rustam Khan and 2 others VS. Taqdeer Khan and 3 others" (2010 YLR 3323) has already held: "12. It appears that none of the two courts below took notice of the above provisions of law, nor did any of the learned counsel while arguing this revision petition refer to the same. Since the period provided under section 48, C.P.C. is not applicable to the execution of injunction decrees, nor is any such restrictive period Provided anywhere else in the code or under "The Limitation Act, 1908" while the language of Order XXI Rule 32, C.P.C. would suggest that as and when on having an opportunity to obey the decree and willfully failed to do so, then the provisions of sub-rule 1 and sub-rule 5 would come into play and the defaulter be dealt with in accordance with the said provision."
9. Where a decree prohibits the defendant from doing a thing, is a decree granting prohibitory injunction and is not capable of execution on the date it is passed or in other words, until an obstruction is caused, and in absence of such obstruction there would be nothing to execute, and as such, execution may not be necessary to be filed within three or six years of the date of passing decree. As soon as any obstruction is caused or defiance made and the court's order in this regard is breached, a cause of action for enforcement of decree for prohibitory injunction arises and decree holder's right to apply for execution accrue. Such right is beyond the reach of the bar provided in Section 48 CPC coupled with provisions of Article 181 of the Limitation Act, 1908.
10. In view of the aforesaid reasons, both the learned courts below have failed to properly appreciate the facts and law of the case, and erred in dismissing the second petition for execution of the decree filed by petitioners. Hence, while allowing this revision petition, both the impugned Judgment/Orders are hereby set aside and resultantly the execution petition is restored and remanded back to the learned executing court with the direction to proceed ahead with the same in accordance with law and procedure but after getting the amended petition as hinted in the Para No.7 supra. Parties are left to bear their own cost.