' A money decree was passed by the Civil Court in favour of respondent No, 2 and against the petitioners on 19-2-1968. Respondent No, 2 took out execution within time but his application was dismissed in default on 12-7-1974. He filed another execution application on the very next day i. e.
13-7-1974. Petitioners raised an objection that the execution petition filed on 13-7-1974 was time- narred in view of the amendment made in section 48 of C. P. C. Which provided a maximum period of six years for the execution of the decree. Learned executing Court by its order, dated 20-6-1975 upheld this objection and dismissed the application for execution as barred by time. Respondent No, 2 filed a revision petition which was allowed by the learned Additional District Judge Multan by his order, dated 28-2-1976 holding that the original application for execution was tiled within time and on its dismissal in default, fresh execution application filed the following day was continuation of original proceedings and as such it could not be treated as time-barred.
2. Petitioners have filed the present constitutional petition to challenge the aforementioned order of the learned Additional District Judge. This petition, on the face of it, suffers from gross lathes in so far as it calls in question an order passed 9 years ago. The inordinate delay has not been explained in the petition. Learned counsel, however, seeks to explain that the petitioners had earlier filed a revision petition to challenge the impugned order which is still pending. The fact has not been mentioned in the writ petition but it is borne out from the record of the revision petition (C. R. No, 233/76) which is available in this Court as it is stated to be linked with the present writ petition.
Perusal of the record of the revision petition shows that on 13-5-1984 when the matter was fixed before my learned brother Abaid Ullah Khan, J., learned counsel for the petitioner requested that he be permitted to convert the revision petition into writ petition. His request was allowed "subject to all just exceptions by the opposite party" and it was directed that the matter be relisted after the writ petition has been filed. Learned counsel states that the petitioner has now filed this writ petition independently to challenge the order of he Additional District Judge because the revision petition (C. R. No, 233-76) filed earlier was incompetent as second revision is not available in this Court. He further submits that the petitioner shall not press the revision petition. Submission of the learned counsel is that the delay in filing the writ petition occurred on account of the pendency of the aforementioned incompetent civil revision. This submission appears to have force. Order impugned in the present writ petition having been challenged earlier through revision petition which is still pending, delay A in filing the present writ petition, per se shall not be fatal.
3. Learned counsel has assailed the validity of the impugned order of the learned Additional District Judge on the ground that the order of the executing Court, dated 20-6-1975 was appealable but respondent No, 2 instead of filing an appeal preferred a revision petition which was accepted by the learned Additional District Judge vide the impugned order. Argument of the learned counsel is that the order of the Executing Court being appealable and no appeal having been filed against it, revision petition was not competent and consequently the impugned order of the learned Additional District Judge was without jurisdiction. For this proposition, learned counsel has relied upon Mian Usman Saigal v. T.D.A. (1). In the case cited by the learned counsel, judgment and decree of the civil Court which was appealable was not assailed in appeal during the prescribed period of limitation and instead a revision petition under section 115, C. P. C. Was filed before the District Judge and that, too after lapse of 7 years. On these facts, it was held that "the judgment and decree passed about 7 years earlier having not been appealed had attained finality and the learned District Judge had no jurisdiction to interfere in revision, in past and closed matter". In the present case, there is nothing on the record to show that revision petition filed by respondent No, 2 was beyond the period of limitation prescribed for appeals nor does the impugned order indicate that the petitioner had taken any objection before the learned Additional District Judge regarding the incompetency of the revision petition.
(1) 1980 CLC 1296 ' If the petitioner had raised such an objection, the respondent could have prayed for converting the revision petition into an appeal, if it was otherwise filed within the limitation period prescribed for appeals. Thus, the case relied upon by the learned counsel is distinguishable and is of no help to the petitioner.
Petitioner can also not be permitted to take the objection regarding the incompetency of the revision petition in the present proceedings. He appeared before the learned Addl. District Judge and was heard through counsel but he is not shown to have raised the objection sought to be taken now. This clearly means that the petitioner submitted to the jurisdiction of the learned Addl.
District Judge. Having so submitted petitioner cannot turn round and question his jurisdiction after the impugned order was passed against him. Reference in this behalf may be made to Nawab Khan v. Waris Iq_ al and another (1)
4. However, even if the argument of the learned counsel be accepted that the impugned order of the learned Addl. District Judge suffered from jurisdictional defect owing to the incompetency of the revision petition filed by respondent No, 2, I am not inclined to interfere with it in writ jurisdiction for the simple reason that the learned Addl. District Judge exercised his revisional powers to set aside an illegal order. Executing Court, it appears, had applied section 48, C. P. C. As amended by Law Reforms Ordinance (XXII of 1972) whereby outer limit of time for the execution of the decree was reduced from 12 years to 6 years. Amended provision curtailing the period of limitation was not applicable to the execution of the decree which respondent No, 2 had obtained long before the promulgation of Law Reforms Ordinance, 1972. Execution of that decree continued to be governed by the old law with the result that it could be executed within a period of 12 years from the date it was passed viz. 19-2-1968. In somewhat similar case from Karachi High Court titled National Bank of Pakistan v. Messrs Hyderabad Tando Fazul Bus Service (2) it was held that "like the right of action by suit the right to execute a decree is a vested right accrued in favour of the decree-holder and, therefore, an alteration in the period of limitation for execution of such decrees cannot be held to be a mere matter of procedure. As already pointed out the decree in the present case was passed on 2nd October, 1965 and could, therefore, be executed until 2nd October, 1977 under the existing law. The amending statute cannot, therefore, be given restrospective effect and as such this case will be governed by the provisions of section 48, C. P. C. As they stood prior to the amendment. The application for execution was therefore, well within time and ought not to have been dismissed as barred by limitation".
5. In the aforesaid view of the matter, the execution application' filed on 13-7-1974 fell within the outer limit of 12 years and was, therefore, within time. Order of the executing Court dismissing the application as time-barred was patently illegal. If the impugned order of the learned Addl. District Judge is set aside it will result in perpetuating a manifestly illegal order. Writ jurisdiction which is discretionary in nature and object of which is "to foster justice and right a wrong" cannot be allowed to be invoked to bring forth such a result. It was held in Raunaq Ali v. Chief Settlement Commissioner and others (3) that "before a person
(i) p L D 1976 SC 324 (2) 1980 CLC 1146
(3) PLD 1973 SC 236 can be permitted to invoke this discretionary power of a Court, it must be shown that the order sought to be set aside had occasioned some injustice to the parties. If it does not work any injustice to any party, rather it cures a manifest illegally then the extraordinary jurisdiction ought not to be allowed to be invoked." Respectfully following this dictum, petitioner, in the facts and circumstances of this case, cannot be permitted to invoke the extraordinary writ jurisdiction of this Court to seek the quashment of the impugned order which had itself set aside a patently illegal order which had wrongly deprived respondent No, 2 of his lawful rights under the decree.
Upshot of the above discussion is that the impugned order does not' call for any interference in equitable and discretionary constitutional jurisdiction of this. Court. This petition having no merit is dismissed' in limine.