' NAIMUDDIN, .I.-This High Court appeal and High Court Appeals Nos. 47 of 1983, 48 of 1983, 49 of 1983, 50 of 1983, 51 of 1983, 52 of 1983, 53 of 1983, 54 of 1983 and 55 of 1983, are from a common undated order passed by a learned Single Judge of this Court on C. M. As. Nos. 452 of 1983 to 461 of 1983, whereby the said applications which were for restoration of execution applications filed in Suit Nos. 330 of 1974 to 334 of 1974 and Suit Nos. 374 of 1984 to 377 of 1984 were dismissed.
' Since common question of law and facts have been raised in all these appeals we, therefore, propose to dispose of all these appeals by this common judgment.
2. Briefly the facts giving rise to these appeals are that the National Bank of Pakistan filed ten separate suits under Order XXXVII, C. P. C. For recovery of various amounts against the respondents to these appeals. One of the respondents applied for leave to defend in Suit No, 330 of 1974 but the application was dismissed as being barred by time by the order, dated 19- 3-1976 and consequently on 16-8-1976, the suit was decreed as prayed. In other suits no applications for leave to defend the suits were filed and all the suits were decreed by the Court on 29-5-1975.
3. Thereafter, on 24-5-1978, the appellants filed separate execution applications of the decrees by attachment and sale of P. V. C. Shares, household goods, movable and immovable properties on which the office raised objections which were not complied with. Therefore, the Additional Registrar (0. S.) of this Court rejected the execution applications under rule 122 of the Sind Chief Court Rules (0. S.) on 4-10-1978. The matter rested there until 17-5-1983, when the appellants filed separate applications under section 151, C. P. C. In the aforesaid suits for restoration of the execution applications.
4. In the affidavits filed in support of the applications it was stated that Mr. Hameed M. Siddiqui Advocate did not inform the appellants of the dismissal of the execution applications and as soon as the appellants came to know of the dismissal of the execution applications they without any further delay filed the applications for restoration of the same. It was further stated that the appellants had no knowledge of the dismissal of the execution applications and that "they did not intentionally show any negligence to pursue the said execution applications because of the said Advocate." We may reproduce herein below the grounds taken by the appellants in their own words :-- "That this matter was being conducted by Mr. Hameed H. Siddiqui Advocate, who did not inform the plaintiff about the dismissal of the said execution application.
' That as soon as the plaintiff came to know about the dismissal of the said execution application without any further delay filed this application for restoration.
' That the plaintiff had no knowledge about the dismissal and he did not intentionally show any negligence to persue the said execution application because of said Advocate."
' These were the only grounds urged in support of the applications.
5. All these applications came up before a learned Single Judge of this Court and, as already stated, he dismissed the same by a common order.
6. It appears that before the learned Single Judge the grounds urged were that the applications were not barred by time and the appellant/ Decree-holder should not be made to suffer on account of negligence of the Advocate.
7. The learned Single Judge however, in paragraphs 8 and 9 of the order held that the applications were barred by time. We may reproduce herein below paragraph 8 of the order. It reads as follows : "8.-In view of the discussion as above, and being of the opinion that the applications made by the plaintiff on 17-5-1983, for restoration of Execution Applications dismissed for non-prosecution on 4- 10-1978, though governed by the provisions of Article 181 of the Limitation Act are barred by time, and are liable to be dismissed as such.
' The argument that for the alleged negligence of their Advocate which resulted in dismissal of the Execution Applications for non-prosecution the petitioners cannot be made to suffer would be of no assistance as the other side cannot be deprived of the valuable rights which have accrued to them with the lapse of time."
The learned Single Judge further observed that the principle of law is well-settled that in civil matters on the expiry of period of limitation a valuable A right accrues to the other side which cannot be taken away except on making out a sufficient cause explaining delay of each day.
8. As regards the ground that the appellants should not be made to suffer on account of negligence of the Advocate in prosecuting the execution applications, we opined that this plea could not in any manner advance the case of the appellant/Decree-holder.
10. We have heard Mr. Ali Murtaza learned counsel for the appellants on 10-9-1984, at length after giving him opportunity to fully prepare as on 10-9-1984 after hearing him for some time at his request we adjourned the hearing to enable him to cite case law. On the second date also at his request we adjourned the hearing, after nearing him for about an hour, for today. Today, he has fully argued the appeals.
11. We have also beard Mr. Obaidur Rahman learned counsel for the respondents in Appeal Nos. 46 of 1983, 48 of 1983, 52 of 1983 and 55 of 1983. In the remaining appeals the respondents were served with the notice of the appeals by publications but they did not appear to contest the appeals and have remained absent.
12. In support of the appeals the learned counsel for the appellants has urged the following grounds : "(1) The finding that the appellants were negligent is not correct.
(2) The finding that the applications were barred by time is not correct."
13. Now, considering the first ground it is submitted that it is not a case of negligence of the appellants but is a case of fraud committed by their advocate on the appellants in as much as he kept them in dark about the dismissal of the execution applications.
14. As regards the second ground the learned counsel submitted that the applications were not barred by time as the same are governed by section 48 (2), C. P. C. Alternatively he submitted that no period of limitation is provided for an application under section 151, C. P. C. And in any case he submitted that under Article 181 of the Limitation Act time would run from the date of knowledge of dismissal of the execution applications.
' In support of the ground he relied on M. R. M. A. S. P. Rarnanathan Chettiar v. Mahalingam Chetti (1), Mt. Semabi w/o Wazir Mohamad v. Ganpatrao Yadorao Pande (2), Bhuyan Shyai Sunder Mohapatra and another v. Ch. Nilakantha Das and others (3). Gour Nag Bhusan v. Ananta Sendh and others (4), Manohar Lal Chopra v. Rai Bhadur Rao Raft Seth Hiralal (5), Bhaktis Ara Ramanuj Das v. Bouri Bandhu Panda (6) and Saifur Rahman and others v. Haider Shah and others (7).
15. On the other hand, the learned counsel for the respondents contended that the application under section 151, C. P. C. Was not maintainable to condone the gross negligence on the part of the appellants and in support of his contention he relied on Messrs Conferee Ltd. v. Sved Ali Shah etc. (8). He further submitted that the application under section 151, C. P. C. Will also be governed under Article 181 of the Limitation Act which provides a period of 3 years from the date of dismissal of the application and since the applications were filed beyond the period of 3 years the same were barred by time. He relied on Narayana Chettiar and another v. P. C. Muthu Chettiar and others (9) and Malik Mtihammad Nazir v. Mian Abdur Rahim and another (10).
16. Now, taking up the first ground urged by the learned counsel for the appellants it may be stated that in the affidavit filed in support of the application the case set up simply was that the Advocate for the appellants did not inform them of the dismissal of the said execution applications and that they had no knowledge of the dismissal of the applications. However, the appellants have not stated in the affidavit filed in support of the applications what they did to prosecute the execution applications which were for attachment and sale of the shares, household effects and movable and immovable properties. They have also not stated what they did during the period of more than four and half years which lapsed between the dates of dismissal of the execution application and the making of the restoration applications.
17. It has been repeatedly pointed out by the superior Courts in our Country that it is the duty of a party to litigation to keep himself informed of the proceedings and progress of the case by keeping in touch with his counsel and if the counsel is negligent, it is he who should suffer. Reliance is placed on Miss Kamal Din v. Malik Muhammad Bashir and others (11), Mst. Taj Begum and another v.
Sultan Khan and 12 others (12), Mst. Abida and another v. Haji Muhammad Beata and 3 others (13), Zulfiqar Ali v. Lal Din and another (14), M. A. Latif v. National Bank of Pakistan (15).
18. In the first named case namely, Miss Kamal Din v. Malik Muhammad Bashir and others which is a Division Bench case, it was observed by Kiyani, J., (as he then was) at page 460 of the report that {{TABLE}}
(1) AIR 1935 Mad. 8 (3) AIR 1956 Orissa 165 (5) A 1 R 1962 SC 527 (7) PLD 1967 SC 344 (9) AIR 1926 Mad. 980 (11) PLD 1952 Lah. 456 (13) 1970 SCMR 78 (2) AIR 1944 Nag. 59 (4) AIR 1958 Orissa 200 (6)
AIR 1963 Orissa 160 (8) PLD 1977 SC 599 (10) PLD 1968 Lah. 792 (12) 1968 SCMR 193 (14) 1974 SCMR 163 {{TABLE}} once a party receives intimation of an action, it is for him to pursue it and to keep himself in touch with the proceedings, either personally or through his counsel.
19. In the second case of Mst. Taj Begum and another v. Sultan Khan and 12 others, Hamoodur Rahman, J. (as his Lordship then was) while delivering the opinion of the Court and rejecting the submission that appellant should not be made to suffer for negligence of Advocate observed as follows :- " We are unable, however, to agree with this contention, for, who else should be held liable. Surely not the respondents, to whom a valuable right has now accrued by reason of the dismissal of the Letters Patent Appeal. They cannot be deprived of that right merely on the ground that the petitioners should not be made liable.For their Advocate's negligence.'
' It may be stated in this case Letters Patent appeal was dismissed in default of appearance of the appellants on 1-12-1965, and the application for restoration was filed along with the application for condonation of delay on 30-7-1966.
20. In Muhammad Sharif Khan v. Board of Revenue West Pakistan (1), it was observed that the petitioners could not absolve themselves of their own responsibilities by throwing the blame on their learned counsel for the delay. It was further observed that even assuming that their counsel was at default it is the petitioners who are to suffer and not the other side to whom a valuable right has accrued by lapse of time. In Zulfigar Ali v. Lal Din and another, the Supreme Court while considering and rejecting the contention of the petitioner that the dismissal of the appeal for default was due to the negligence of the learned counsel and not due to any negligence on his part, and, therefore, the restoration should have been allowed, observed as follows : "The contention is without any force. The mere fact that a litigant has engaged a counsel to appear on his behalf does not absolve him of all responsibility. It was as much his duty as that of the learned counsel engaged by him to see that the appeal was properly and diligently persecuted. If he engaged a counsel who was lacking in his sense of responsibility to the Court, it is he who should suffer and not the other side."
22. The application was made under section 151, C. P. C. Relief was sought in exercise of inherent powers. Such power can be so exercised as the section itself indicates, only (1) for the ends of justice, or (2) to prevent the abuse of the process of the Court.
While considering what is the ends of justice following are held to be in the ends of justice :- "(a) that injury should be remedied and needless expense and inconvenience of the parties should be avoided.
(b) Where a party has another remedy open and will not adopt or negligently fails to pursue it, it will not be 'necessary in the ends of
(1) 1970 SCMR 76 justice, as a general rule, to grant him relief under the Court's inherent powers except in exceptional and peculiar circumstances.
(c) It will not be in the ends of justice to exercise inherent powers if it would interfere with the rights of third parties or cause mischief or injustice."
(d) It will not be in the ends of justice to assist a party guilty of lathes in consequence of which new rights have arisen against him."
' The term "abuse of the process of the Court" has not been defined, and, therefore, its connotation has to be gathered from the instances of abuse which are recognised to be such by judicial decisions.
' An abuse of the process of the Court may be committed by the Court or by a party. In a Privy Council case Deoi Baksh v. Habib Shah (1), the Court of the Deputy Commissioner Oudh had dismissed a suit for default of appearance of the plaintiff who was in fact dead at the time the order was made. On an application under Order IX, rule, 9 by the heir of the plaintiff the suit was restored. On revision the Judicial Commissioner reversed the order of restoration on the ground that the original dismissal was rightly made on default. On appeal to the Privy Council, Lord Shaw, after stating that the rules and orders applicable to a defaulter could not be applied to a dead man and quoting the words of section 151, observed "in their Lordships' opinion such abuse has occurred by the course adopted " in the Court of the Judicial Commissioner. Quite apart from section 151, any Court might have rightly considered itself to possess an inherent power to rectify the mistake which had been inadvertently made. But section 151 could never be invoked in a case clearer than the present." It follows from this ruling that where a Court employed a procedure in doing something which it never intended to do and there is miscarriage of justice, there is an abuse of the process of the Court. The injustice so done must be remedied on the principle actus curia neminem gravabit-an act of the Court shall prejudice no person. Such an abuse by the Court may arise either (a) by the default or mistake of the Court itself or its officers as the result of misrepresentation by or fraud of a party. But where the fraud alleged in a petition under this section for setting aside a decree is fraud on the party and not fraud on the Court, the decree cannot be set aside under this section.
23. It may be recalled that the execution application was rejected by the Additional Registrar under rule 122 of the Original Side Rules of this Court which provides that if an execution application is not in order or if it is liable to be rejected under Order XXI, rule 17 of the Code, the Deputy Registrar shall submit it to the Registrar (0. S.) for orders after noting thereon his reasons for its rejection.
24. Under Order XXI, rule 17, C. P. C. Which provides that if the execution application has not complied with the requirements of rules 11 to 14 as may be applicable to the case, the Court may reject the application or may allow the defect to be remedied then and there or within a time to be fixed by it. We may quote the relevant rule herein below.
"17. Procedure on receiving application for execution of decree.-(1) On receiving an application for the execution of a decree as provided by rule 11, sub-rule (2), the Court shall ascertain whether such of the requirements of rules 11 to 14 as may be applicable to the case
(1) (1913) 35 All. 331 ' have been complied with and if they have not been complied with, the Court may reject the application, or may, allow the defect to be remedied then and there or within a time to be fixed by it."
25. Now, if the appellants were aggrieved by this order, they could file appeal under rule 15 of the Original Side Rules which provides that any party desiring to have any question which has been decided by the Registrar (0. S.) referred to Court, may apply therefor within eight days from the date of the order complained of or within such further period as the Judge for sufficient cause may allow even after the expiry of the aforesaid period of eight days. No such application was made by the appellants. They could also file fresh execution application within the period provided in Article 183 of the Limitation Act but they did not follow this course too. Therefore, keeping in view the above stated, principles it was not a case of exercise of inherent powers.
26. Further, it is a case of gross negligence on the part of the appellants and, therefore, inherent power could not be exercised in aid of such negligence particularly when the execution of the decree had already become barred by time. In Messrs Conforce Ltd. v. Syed All Shah etc. (1), to which reference was made by Mr. Ubaidur Rahman, learned counsel for the respondents, if was observed by their Lordships of the Supreme Court as follows : "Mr. Akram's explanation was that the petitioner's junior counsel who was attending to the case had suddenly fallen ill. We were not informed of the nature of his illness nor is there any explanation of the petitioner's failure to be present in Court on 1-12-1975. It is also significant that neither the petitioner nor its learned counsel took any steps until 25-3-1976 to find out what orders the trial Court had passed on 1-12-1975. In the circumstances discussed, it is doubtful if the petitioner had made out good cause in support of its application under rule 7 of Order IX, Civil Procedure Code, but it is not necessary to examine this question further because this application was fixed for hearing on 21-6.1976, and as on that day, the petitioner and its learned counsel were again absent, this application was dismissed for default. Mr. Akram, however, relied on the fact that the petitioner had repeated its application for vacating the trial Court's order of 1-12-1975, and, according to the affidavit in support of this second application, it would appear that this second application was filed on 1-12-1976. The delay in filing this second application does not indicate that the petitioner was prosecuting its remedies with diligence. Be this as it may, this second application was not maintainable, but as the petitioner had also invoked the previsions of section 151 of the Civil Procedure Code, we would clarify that the provisions of this section, cannot be invoked to defeat the provisions of Civil Procedure Code nor can they be invoked to further injustice or to condone gross negligence. Therefore, this second application was only fit to be dismissed and was dismissed, and no exception can be taken to the order of the High Court in dismissing the revision of the petitioner."
27. Now, taking up the second point, it is firstly, argued that subsection (2) of section 48, C. P. C. Was applicable to the present case and.
(1) PLD 1977 SC 599 therefore, the application was not barred by time. It is submitted that the fraud was committed by their Advocate as the appellants were kept in dark by him. Before examining this argument we may quote the section which reads as follows :- "48. Execution barred in certain cases.-(1) .........................................
(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."
' Examining the argument in the light of the above quoted provisions it may be stated that firstly, an application for restoration of the execution application was not the execution application itself, secondly, subsection (2) will apply only where the judgment debtor has by fraud or force prevented the execution of the decree at some time within 6 years immediately before the date of the application. It is not at all the case of the appellants that they were prevented from applying for execution of the decree by the judgment-debtor, by force or fraud ; their case now at the bar is that they were prevented from prosecuting their execution application by fraud of their counsel but they have not even alleged any fraud against their counsel in the application for restoration or affidavit filed in support thereof. Therefore, reference to section 48 subsection (2), C. P. C. Is in our opinion, absolutely irrelevant so far as the present appeals are concerned.
28. It was next argued that no period of limitation is provided for an application unrigr section 151, C P. C. We need not examine this argument in great detail for we have already held that this was not a case of exercise of inherent powers and, therefore, the application under section 151, C. P. C. Was not maintainable. However, assuming for the sake of arguments that it was maintainable under section 151, C. P. C. Then in Article 181 of the Limitation Act it is clearly provided that an application for which no period is provided elsewhere in the Limitation Act or in section 48, C. P. C. Must be filed within three years from the date where right to apply accrues. No period is provided for restoration application in section 48, C. P. C. Therefore, the application should have been filed within three years from the date of rejection of the execution applications. Reliance is placed on Malik Muhammad Nazir v. Mian Abdul Rahim and another. It may also be remembered that the execution application was not dismissed in the exercise of inherent powers but it was rejected under rule 122 of the Sind Chief Court Rules (0. S.).
29. The last argument advanced is that the time would run from the date of knowledge of the rejection of the application. But this argument is also misconceived for a party or his counsel is bound to keep himself informed of the proceedings.
' It is not the case of the appellants that their Advocate had no knowledge, their case is that he kept them in the dark. It may be stated that the knowledge of the Advocate is the knowledge of the party whom he represents. Further, as already stated it was the duty of the appellants to keep themselves informed of the progress of the execution application. They cannot take shelter behind their own inaction or negligence.
30. Now, we take up the cases cited by the learned counsel for the appellants.
(1) In M. R. M. A. S. P. Ramenathan Chettiar v. Mohalingam Chetti, it was observed that the mere fact of a fraud having been committed by the judgment-debtor can be availed of by the decree- holder for claiming exemption under section 48(2)(a) and in order to succeed it is not necessary for him to show by evidence that on account of that fraud he was actually prevented fiom executing his decree.
' It will be seen that this case has no application to the present case for in this case no fraud was committed by the judgment-debtor/respondent.
(ii) In Mt. Semabi w/o Wazir Muhammad v. Gabpatrao Yadorao Pande it was held that if the execution application is dismissed under Order XXI, purely in exercise of its inherent powers, it is equally entitled under those powers to restore the case to file. But in the present case the execution application was rejected under rule 122 of the Sind Chief Court Rules (0. S.) and not in exercise of inherent powers.
(iii) In Bhuyan Shyam Sunder Mohapatra and another v. Ch. Nilakantha Das and others, it was held that where the Court has power to act at any time either upon or without application, such power may be exercised even if an application is made by a party after the limited time. However, in this very case it was further held that an application for substitution as plaintiffs in the final decree for foreclosure is an application under the Code of Civil Procedure and as such it should be filed within three years after the death of their father or at least within three years after they attain majority.
Therefore, it is clear that where application is made under the Code it should be made within the period of limitation.
' Now, the case before us is not. One where the Court has power to act at any time. If we were to hold that execution application was entitled to be restored on the facts and in the circumstances of the present case at any time, we would obliterate the provisions of the Limitation Act from the Statute Book. Further, the present case is not one in which inherent powers could he exercised in complete disregard of the Limitation Act and the principles laid down for the exercise of inherent powers quoted above.
(iv) Considering Gour Nag Bhusan v. Ananta Sendh and others, it may be stated that in this case it was held that even though the provisions of Order IX, do not apply to the execution proceedings the executing Court in exercise of its inherent powers under section 151, C. P. C. Can restore the application under Order XXI, rule 100, C. P. C. Dismissed for default or set aside the ex parte order.
' There is no cavil with the proposition laid down in the case but the case has no application to the facts of the present case as in the present case the application was rejected as already stated under rule 122 of the Sind Chief Court Rules (0. S.) and not in the exercise of inherent powers.
(v) Taking up the fifth cited case of Manohar Lal Chopra v. Rai Bahadur Rao Raja Seth Hiralal, it may he pointed out that this case has no relevancy to the facts of the present case as would be seen from the contents of paragraph 18 of the judgment.
"18. There is difference of opinion between the High Courts on this t, point. One view is that a Court cannot issue an order of temporary injunction if the circumstances do not fall within the provisions of Order XXXIX of the Code Varadacharlu v. Narsimha Charlu AIR 1926 Mad. 258 ; Govindarajulu v.
Imperial Bank of India AIR 1932 Mad. 180 ; Karuypayya 1. Ponnuswami AIR 1933 Mad. 500 Murugesa Mudali v. Angamuthu Mudali AIR 1938 Mad. 190 and Subramanian v. Settarama AIR 1949 Mad.
104. The other view is that a Court can issue an interim injunction under circumstances which are not covered by Order XXXIX of the Code, if the Court is of opinion that the interests of justice require the issue of such interim injunction ; Dhaneshawar Nath v. Ghanshyam Dhar AIR 1940 All 185 ; Firm Bichha Zam Baburam v. Firm Baldeo Sahai Surajmal AIR 1940 All 241 ; Baghat Singh v. Jagvir'
Sawhney AIR 1941 Cal. 670 and Chinese Tannery Owner's Association v. Makhun Lal AIR 1952 Cal.
560. We are of the opinion that the latter view is correct and that the Courts have inherent jurisdiction to issue temporary injunctions in circumstances which are not covered by the provisions of Order XXXIX, C. P. C. There is no such expression in section 94 which expressly prohibits the issue of temporary injunction in circumstances not covered by Order XXXIX or by any rules made under the Code. It is well-settled that the provisions of the Code are not exhaustive, for the simple reason that the Legislature is incapable of contemplating all the possible circumstances which may arise in future litigation and consequently for providing the procedure for them. The effect of the expression 'is only this that when the rules prescribe the circumstances in which the a temporary injunction can be issued, ordinarily the Court is not to use its inherent powers to make the necessary orders in the interests of justice, but is merely to see whether the circumstances of the case bring it within the prescribed rule. If the provisions of section 94 were not there in the Code, the Court could still issue temporary injunctions, but it could do that in the exercise of its inherent jurisdiction. No party has a right to insist on the Court's exercising that jurisdiction and the Court exercises its inherent jurisdiction only when it considers it absolutely necessary for the ends of justice to do so. It is in the incidence of the exercise of the power of the Court to issue temporary injunction that the provisions of section 94 of the Code have their effect and not in taking away the right of the Court to exercise its inherent power.
24.-Further, when the Code itself cognizes the existence of the inherent power of the Court, there is no question of implying any powers outside the limits of the Code."
(vi) In Bhaktisara Ramanuj Das v. Bouri Bandhu Panda, it was held that it is true that Order IX, rule 9, C. P. C. Does not in term apply to such execution proceedings, but assuming that the judgment- debtor has an alternative remedy by way of suit still the inherent powers of the Court may be exercised in respect of application for restoration of petitions dismissed for default.
' Again this case is distinguishable on the facts.
(vii) So far as Saifur Rahman and others v. Haider Shah and others (1), is concerned, in this case, the fraud alleged was that the judgment-debtor in collusion with the officials of the Court of Senior Subordinate Judge managed to have the file relating to one execution case annexed to the index form of another execution case after surreptitiously destroying the correct file of the latter case and the index form of the former case when the records of the latter case were summoned. As a result of this fraud the execution application was held to be time-barred. This case has no application to the facts of the present case for in the execution proceeding no fraud was committed by the respondents.
' We have, therefore, come to the conclusion that the order of the learned Single Judge is unexceptionable.
' We, therefore, dismiss all these appeals. We, however, in the circumstances of this case leave the parties to bear their own costs.
(1) PLD 1967 SC 344