' NAIMUDDIN, J.-- This High Court Appeal and High Court Appeal No.17 of 1977, are from a common order dated 29-4-1977, passed on C.M.A. No.126 of 1975, filed in Suit No.209 of 1967, and C.M.A. No.127 of 1975, filed in Suit No.210 of 1967, whereby the said applications, which were under section 46 read with section 151, C.P.C. for issue of precepts to the Court of the District Judge, Jhelum, for attachment of immovable property of the surety, respondent No.2, were dismissed on the ground that the applications were filed beyond six years provided in section 48, C.P.C.
2. The facts relevant for consideration of the present appeals are that the appellant brought a suit, being Suit No.209 of 1967, against China Silk House, claiming a decree for Rs.1,81,122.65. He also filed another suit, being Suit No.210 of 1967, claiming a decree for Rs.2,22,800.67 against Zafar Cloth House and another. Both these suits were compromised on 11-12-1967 and decrees on admission for Rs.1,81,122.65 and Rs.2,04,565 payable in 42 months, respectively, were passed. The payment of instalments was to commence after two months of unsealing of the shops which were attached during the pendency of the suits. It was further provided in the compromise decrees that on furnishing surety for the decretal amounts by the respondent Haider Raza (hereinafter called the surety) the attachment would be withdrawn and the goods attached would be handed over to the surety.
3. Thereafter, it appears that the appellant filed two execution applications, first on 11-10-1968, and the second on 18-12-1968, for attachment of the immovable properties of the surety, which were rejected on 19-10-1968, and on 11-2-1969, respectively for non-compliance of the objections. The matter rested there until 15-4-1975, when the appellants as already stated, filed two applications under section 46 read with section 151, C.P.C. in the two suits for issue of precepts to the Court of District Judge, Jhelum for attachment of immovable properties of the surety on 15-4-1975. The respondent raised objections to the applications that the same were barred by time.
4. It is necessary that some other material facts may be stated which are that on 18-3-1969, respondent No.1 judgment :ebtor applied to the Court for recording full and final Settlement of the decrees on the basis of written receipts purporting to be executed by the appellant whereby the remaining balance of the decretal amount was liquidated on receipt of lump sum amount mentioned therein. This application was contested by the appellant but pending hearing of the same the parties by consent agreed to withdraw the matter from the Court and to refer the same to arbitration outside the Court. Consequently, the application filed by respondent No.1 was allowed to be withdrawn on 14-2-1970. It was further stated by the learned counsel for the appellant that the reference was made and the award was passed by the arbitrator on 15-3-1974. By this award the respondents' plea of satisfaction of decrees in view of the alleged payments was rejected and the balance amounts outstanding towards the decretal amounts were held to be payable by respondent No.l. It was further stated at the bar that the Award was then filed in this Court and was made rule of the Court on 11-3-1975. Before the learned Single Judge the following objections were raised: "(1) The application is barred by limitation.
(2) The conduct of the decree-holder in agreeing to a decree providing for payment by instalments, operated to discharge the surety?
(3) In any case having regard to the terms of the surety bond, the application is premature as the bond is enforceable only on default by the judgment-debtor."
5. The learned Single Judge upheld the first objection by holding that the applications were barred by time and consequently dismissed the same.
6. We have heard Mr.Mumtaz Ahmed Shaikh learned counsel for the appellant and Mr.M.A.M.Namazi learned counsel for the respondents.
7. The learned counsel for the appellant submitted that the learned Single Judge erred in holding that the applications were barred by time. He submitted that the period for execution of the decree was 12 years and not 6 years on the basis of which the learned Single Judge held that the applications were barred by time. Alternatively, he submitted that even if it is held that the period for execution of the decree was 6 years, time would run from the date when last instalment became due. He relied on Federation of Pakistan, Department of Supply and Development, Cottage Industries v. Bibi Shaidae Fatima, Founder and Manager of Dilnashin Industrial Home and 2 others PLD 1968 Kar. 31, and Ranglal v. Syamlal AIR 1946 Cal.
500. Lastly, he submitted that under section 48(2), C.P.C. the time of 6 years would run from the date the award was made rule of the Court as the appellant was prevented from executing the decrees by fraud of respondent No.l.
8. Now, taking up the first submission it may be stated that the decrees were passed by this Court on 11-9-1967. At that time under Article 183 of the Limitation Act, 1908, and in section 48, C.P.C. a period of 12 years was provided for execution of such decree. However, subsequently on 14th April, 1972 by the Law Reforms Ordinance, 1972, (Ordinance XII of 1972) inter alia Article 183 of the Limitation Act, 1908, and section 48, C.P.C. were amended and the period of 12 years was reduced to 6 years'. It was on the basis of these amendments that the learned Single Judge held the applications under section 46 read with section 151, C.P.C. were time-barred as the same were filed beyond six years of the passing of the decrees.
9. However, it is argued before us that the amendment in Article 183 of the Limitation Act, 1908, and section 48, C.P.C. would not apply to decrees passed before the promulgation of the Law Reforms Ordinance, 1972, for any amendment in the procedural law would not operate with retrospective effect so as to interfere with or take away or impair any vested right or remedy in the absence of any provisions to the contrary being provided in the amending law.
10. The argument has substance and we find support for the same from a passage in Craies on "Statute Law", 5th Ed., page 371, which reads as follows: "Alterations in the form of procedure are always retrospective, unless there is some good reason or other why they should not be. Gardner v. Lucas (1878), 3 App. Cas. 582, 603, R. v. Southampton Income-tax Commissioners (1916) 2 K B 249. "A statute cannot be said to have a retrospective operation because it applies a new mode of procedure to suits commenced before its passing". In other words, if a statute deals merely with the procedure in an action, and does not affect the rights of the parties (emphasis supplied)," it will be held to apply prima facie to all actions, pending as well as future."
' We may also quote a passage from Halsbury's Laws of England, 3rd Ed., Vol 36, page 424, which reads as follows: "It is also in reliance on the foregoing presumption that the Courts have frequently held pending proceedings to be unaffected by changes in the law so far as they relate to the determination of substantive rights. In the absence of a clear indication of a contrary intention in an amending enactment, the substantive rights of the parties to an action fall to be determined by the law as it existed when the action commenced."
' Reliance is placed in support of the above-stated principle on Hitchock v. Way (1837) 6 AD. EL. 943, at pp. 951, 952; R. v. Southampton Income-tax Commissioners ex parte Singer (1916) 2 K B 249, at 259.
' At this stage reference may also be made to Re-Joseph Suche & Co Ltd. 1875 1 Ch. D.48, wherein the changes made by the Supreme Court of Judicature Act, 1875, in the rules governing -the priority of payments in the winding up of an insolvent company were held not to affect priorities in an existing winding up and to Jonas v. Rosenberg, (1950) 2 K B 52 and Kutchinson v. Jauncey (1950)
1 K B 57.
' The Supreme Court of Pakistan in the case of State v. Moulvi Muhammd Jamil and others PLD 1965 SC 681 recognized the above principle. We may quote a passage from the judgment which appears at page 685 of the report:- "The general principle is that when the law is altered during the pendency of an action, the rights of the parties are decided according to the law as it existed when the action was begun unless the new statute shows a clear intention to vary such rights (vide Maxwell, p.212). Where the Legislature has made its intention clear that the amending Act should have a retrospective operation, there is no doubt that it must be so construed even though the consequences may entail hardship to a party. But even without express words to that effect, retrospective effect may be given to an amending law if the new law manifests such a necessary intendment. With regard to procedural laws, says Maxwell at p.217 of his book, the general principle seems to be that alterations in procedure are retrospective unless there be some good reason agaisnt such a view."
' It may be advantageous, if we also refer to the case of Colonial Sugar Refining Company Limited v. Irving (1905) A C 369 wherein the following principles were laid down: 'If the matter in question be a matter of procedure only', the previsions would be retrospective. 'On the other hand, if it be more than a matter of procedure, if it touches a right in exisence at the passing of the Act', then 'in accordance with a long line of authorities extending from the time of Lord Coke to the present day', the legislation would not operate retrospectively, unless the Legislature had either 'by express enactment or by necessary intendments' given the legislation retrospective effect."
' The above principles and the cases of Colonial Sugar Refining Company Limited v. Irving (Supra) and Re-Joseph Suche & Co. Ltd. (Supra), were noticed by the Supreme Court in Adnan Afzal v.
Capt. Sher Afzal PLD 1969 SC 187 and considering what are the matters of precedure, a passage from the earlier case of State v. Moulvi Muhammad Jamil and others was quoted by Hamoodur Rahman, C.J., who delivered the opinion of the Court. We may reproduce the same herein below: "It is obvious that matters relating to the remedy, the mode of trial, the manner of taking evidence and forms of action are all matters relating to procedure. Crawford too takes the view that the questions relating to jurisdiction over a cause of action, venue, parties, pleadings and rules of evidence also pertain to procedure, provided the burden of proof is not shifted. Thus a statute purporting to transfer jurisdiction over certain causes of action may operate retrospectively. This is what is meant by saying that a change of forum by a law is retrospective being a matter of procedure only. Nevertheless, it must be pointed out that if in this process any existing rights are affected or the giving of retroactive operation causes inconvenience or injustice (emphasis supplied) then the Courts will not even in the case of a procedural statute, favour an interpretation giving retrospective effect is of such a character that its retroactive application will tend to promote justice without any consequential embarrassment or detriment to any of the parties concerned, the Courts would favourably incline towards giving effect to such procedural statutes retroactively."
11. Examining in the light of the above principles it may be stated that the right to execute decree within the time allowed by the law was a vested or substantive right and in absence of any provision in the amending law to the contrary, the amendment in section 48, 'C.P.C. could not affect the right to execute the decrees within 12 years as provided in section 48 of the Civil Procedure Code, 1908 before its amendment by Ordinance XII of 1972. It could never be presumed that the law-giver intended to destroy all those decrees which were passed by the High Court six years prior to the promulgation of the Ordinance as it would be against justice.
12. The question of abridgement of time for execution of the decree by the Law Reforms Ordinance, 1972 (Ordinance XII of 1972) directly came up for consideration in the case of National Bank of Pakistan v. Hyderabad Tando Fazul Bus Service 1980 CLC 1146, wherein the same submission was made as made before us. Accepting the submission it was observed by Zafar Hussain Mirza, J. as follows: "I find considerable force in the submission of the learned counsel, the question in this case is not of a change in a procedural law affecting the adjudication of a cause of action. The appellant had already invoked the jurisdiction of the Court and obtained adjudication upon the cause of action that accrued to him culminating in a decree in his favour. The abridgement of the outer limit of time abruptly by the aforesaid amendment, therefore, -affected a vested right to execute the decree passed in favour of the appellant. Consequently, in absence of contrary intendment, the amending law cannot be given retrospective effect."
13. The view taken by Zafar Hussain Mirza, J. has been followed by Lahore High Court in Qasimi Jewellers v. National Bank of Pakistan 1983 CLC 2433, wherein also a similar question as before us was raised and dealt with. We may quote a passage from this judgment.
"7. The question as to whether litigant who has got a decree from a Court of law, has got a vested right to get the said decree executed and the precise question as to whether 12 years period of limitation as laid down in unamended section 48, C.P.C. or 6 years period of limitation as provided for in amended section 48, C.P.C. would apply in a case in which the decree had been passed prior to enforcement of Law Reforms Ordinance, 1972, directly fell for decision in case of National Bank of Pakistan v. Messrs Hyderabad Tando Fazul Bus Services 1980 CLC 1146. In that case 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 a decree-holder and, therefore, any alteration in the period of limitation for execution of such decree cannot be held to be a matter of mere procedure and the amending statute cannot be given retrospective effect and as such the case will be governed by provisions of section 48, C.P.C. as they stood prior to the amendment. It was reiterated in the said decision that when a person had already invoked the jurisdiction of the Court and obtained adjudication upon a cause of action that accrued to him culminating in decree in his favour, the abridgement of outer limits of time by the amendment in section 48, C.P.C., affected a vested right to execute the decree and, therefore, amending law could not be given retrospective effect. It was further held that since the legislature had abruptly amended the period from 12 years to 6 years without giving any intervening period for filing of actions under the old law, there was a presumption that the new procedural law reducing period of limitation was not meant to be retrospective. The said observations are incomplete accord with decisions of Supreme Court quoted above and I fully agree with them and respectfully following the same I hold that period of limitation as prescribed in section 48, C.P.C. prior to amendment by Law Reforms Ordinance, 1972 applied to said fresh execution application was within the period of limitation. Thus, though the reasoning of Additional District Judge was erroneous his conclusion that the said second execution application was not barred by time was correct.
14. Accordingly, the period mentioned in section 48, C.P C as it existed at the time of passing of the decree would apply. We are therefore, clearly of the opinion that the execution of decrees had not become barred by time and, therefore, applications filed by the appellant/decree-holder were maintainable.
15. As regards second contention that since the decrees were for payment of the amount by instalments the time would run from the date when last instalment became due and payable. The proposition canno be accepted as stated for in a case where the decretal amount is payable by instalments but it is provided that in case of default th whole decretal amount becomes due and payable on any default th time would run from the date of such default unless there is waiver orl, condonation of default in which case time for each instalment would run from the date of each default and therefore, to recover the intalments under the decree the application must be filed within the time provided under the law from the date of each default for, if, it is held otherwise it would have the effect of extending the period of limitation for the whole decretal amount or the instalments in default, as the case may be, beyond the prescribed period for which there is no warrant in the Limitation Act.
' Reference may be made to Chunilal Motiram v. Shivram Naguji Ghule and others AIR 1950 Born.
188, which is a Full Bench case, wherein the learned Judges stated the following two principles: "It is well-settled that the right which is given to a decree-holder under a decree to enforce the payment of the full decretal amount in default of payment of any instalment is a right given to the decree-holder for his benefit. He may or he may not enforce it. Although a default may take place, he may treat the decree as still a decree for instalments and he may pursue in execution his right to obtain the instalments as and when they fall due."
"It also cannot be disputed as a principle underlying the Limitation Act that limitation begins to run when the right accrues for the first time and once limitation begins to run, limitation cannot be stopped. It would be fallacious to argue that in case of each default there is a separate right which accrues to the decree holder. There may be subsequent defaults, but the right having once accrued to the decree-holder, limitation would run notwith standing the subsequent default and subsequent defaults would not give him further rights, the right having already accrued to him when the first default took place. The only exception to this proposition is a question of waiver or condonation on the part of the decree-holder. It would be open to the decree-holder not to treat the non-payment of the instalment on the due date as a default at all. He may waive or condone the default, in which case limitation would not run from the default which was condoned or waived, but from the default which the decree-holder treated as a default under the decree.
16. So far as the two cases cited by the learned counsel for the appellant are concerned in Calcutta case, which is a Full Bench case, it was held where, a decree directs payments of the decretal amount by instalments on particular dates and provides that in case the defendant fails to pay any instalment at the stipulated period, the entire decretal amount would be due, then, after a default has occurred, an application for execution relating to subsequent instalments, as such, is maintainable and any application, made more than three years after the first default, but relating to instalments which fell due within three years of the date of the application, is within time and is governed by Article 182(7) of the Limitation Act. For the above dictum reliance was placed on the case of Judicial Committee in Lasadin v. Mst. Gulab Kunwar AIR 1932 PC 207. This case helps the appellant to the extent of those instalments which were payable within 12 years from the making of the application under section 46 read with section 151, C.P.C.
17. So far as the case of Federation of Pakistan, Department of Supply and Development, Cottage Industries v. Bibi Shaidae Fatima, Founder and Manager of Dilnashin Industrial Home and 2 others PLD 1968 Kar. 31 is concerned the learned Judge has placed reliance on the Full Bench case of Culcutta High Court cited above, and observed that the decree-holder who is entitled to recover the decretal amount by instalment is not bound to proceed to recover the whole amount even if it becomes due by default and can wait until the period within which the instalments are payable expires. It is necessary to state certain facts of the case under discussion. In this case a consent decree for Rs.5,098 was granted with a provision that the amount was payable by instalment of Rs.100 per month beginning from 15-8-1958. Thus, the total amount was to be paid in 51 instalments, last of which was to be paid on 15-10-1962. The judgment-debtor paid the first instalment of Rs.100 on 14-3-1959 then he paid Rs.296.25 on 8-8-1959, the decree-holder, therefore, filed the execution application on 16-1-1962, for recovery of the entire balance with interest in the amount of Rs.7,660.96. On these facts following Calcutta case it was held that the decree-holder in that case could wait till the period upto 15-10-1962, expired and then apply for execution within 3 years of it and accordingly the first execution application made on 16-1-1962, was within time. With utmost respect we may state that the judgment of Calcutta High Court has not been correctly appreciated for in that case the following question was referred which was answered in the affirmative: "Where a decree directs payment of the decretal amount by instalments on particular dates and provides that in case the defendant fails to pay any instalment at the stipulated period, the entire decretal amount would be due, whether any application, made more than three years after the first default, but relating only to instalments which fell within three years of the date of the application, is within time and is governed by Article 182 (7), Limitation Act."
In that case the learned Judges nowhere laid down that the decree could be executed even in respect of instalments which had become barred by time and they have also nowhere laid down that time for execution of the whole decree would run from the date when the last instalment under the decree was payable.
18. In the present case the decree provided that in case of default in payment of any two installments the whole decretal amount would become 'payable at once. Indeed it was pursuant to this provision that the appellant had filed the execution application on 11-10-1968, and on 18-12- 1968. Therefore, this submission is not available to the appellant.
19. In the view of the matter that we have taken on the first submission, it is not necessary to go into the third submission.
20. We, therefore, allow these appeals and remand the case to the learned Single Judge on the original side to decide the applications on merits and according to law.