The litigation out of which this revision petition under section 115 of the C.P.C. By Muhammad Ismail, plaintiff, has arisen has a chequered history; it relates to as far back as 1-9-1962 when Muhammad Ismail, plaintiff, now petitioner (hereinafter to be called the plaintiff), instituted a suit "for possession of land measuring 18 kanals 18 marlas bearing Khasras Nos. 46, 814.......... Situated at Mauza Hinjirwala, Tehsil and district Sheikhupura through specific performance of contract of sale entered into between parties on 25-5-1958." The defendants in the suit were Muhammad Siddique (hereinafter to be called the vendor), Maula Dad and Muhammad Akram vendees from Muhammad Siddique (hereinafter to be described as subsequent vendees). The suit was decreed by the learned trial Judge's judgment dated 23-12-1963 "as prayed by the plaintiff in favour of the plaintiff against defendants 2 and 3 with costs of this suit". Against the decree dated 23-12-1963, the defendants unsuccessfully appealed first to the District Court and then to the High Court. In the High Court their appeal was dismissed in default on 27-6-1969 and their application for the restoration of the appeal was dismissed on 17-7-1969.
2. The dispute in these proceedings relates to Khasra No. 814 only. It appears that during the pendency of the suit and the appeals mentioned above, consolidation of holdings had commenced in the village in the year 1965 and was completed on 30-9-1968. In the consolidation proceedings, Khasra No. 814 was allotted a new number viz. 43/20/1. This was allotted to one Mst.
Aimina. The latter sold her rights in Khasra No. 43/20/1 to Hafiz Abdul Hameed and Mst. Saeeda Khatoon. In lieu of Khasra No. 814 (new number 43/20/1), the subsequent vendees were allotted Khasra Nos. 9/2 and 10 of Square No. 53. The plaintiff Muhammad Ismail, filed an execution petition, which was dismissed in default on 25-4-1970. However, in another execution petition,' a warrant of possession was issued by the order of the Executing Court and he was placed in symbolic possession of Khasra No. 43/20/1. As this affected the rights of Hafiz Abdul Hameed and Mst.
Saeeda Khatoon, they brought a suit on 5th of November, 1970, against the plaintiff to have it declared that they were the owners of the land comprising Khasra No. 20/1 of Square No. 43 and that the delivery of possession of that number to the plaintiff in execution of the decree passed against the subsequent vendees did not affect their rights in that land. The suit was decreed and the decree was maintained upto the Supreme Court. The Supreme Court's judgment dismissing the civil petition for special leave to appeal against this Court's judgment dated 19-12-1977 is dated 5-3-1978.
3. The plaintiff then filed an execution petition out of which this revision has arisen, on 12-6-1980, praying that in execution pf the decree for specific performance; he be given possession of Khasra Nos. 10 and 9/2 of Square No. 53. In the execution petition, the respondents were the vendor, Muhammad Siddique, and the subsequent vendees, Maula Dad and Muhammad Akram. Before the learned Civil Judge, objection was raised that the execution petition was barred by time and also that in view of a decision of the Chief Settlement Commissioner dated 15-7-1978, the decree had become inexecutable. The learned Senior Civil Judge, by his judgment dated 19-6-1983, held that the unamended section 48 of the C.P.C. Applied; that under that section, the plaintiff could apply for execution of the decree within 12 years of the High Court's order dismissing the subsequent vendees' appeal dated 27-6-1969 and, therefore, the execution application was within time. As to the decree having become in-executable, the objection before the learned Senior Civil Judge was founded upon the fact that the land had been allotted to Mst. Bibi Rani and Dhamali Shah, predecessors-in-interest of the vendor; that the land had, by the Settlement Commissioner's order dated 15-7-1978, been cancelled from the names of the predecessors-in-interest of the vendor and, therefore, the vendor had long ceased to be the owner of the land. The learned Senior Civil Judge referred to the order dated 15-7-1978 and observed that it was not clear from the order dated 15-7-19.78 that "it was in fact the suit land which was allotted to Mst. Bibi Rani and Dhamali Shah and now stood cancelled".
4.Against the judgment of the learned Senior Civil Judge, dated 19-6-1983, Maula Dad, one of the subsequent vendees and two others, namely, Muhammad Ajmal and Muhammad Hanif (Muhammad Ajmal and Muhammad Hanif claimed to have purchased the land from Muhammad Akram, one of the subsequent vendees) preferred an appeal and the learned Additional District Judge, Sheikhupura, by his judgment dated 16-4-1987, found in their favour and against the plaintiff on the ground of limitation as also on some additional grounds. The additional grounds, which found favour with the learned Additional District Judge were as follows: The vendor, Muhammad Siddique, had died long before the execution application dated 12-6-1980; the plaintiff fully knew of his death, for, he himself had, in the suit of Hafiz Abdul Hameed and Mst. Saeeda Khatoon, impleaded his legal representatives as parties. In his view, therefore, "the proceedings against a dead person are nullity in the eye of law". Secondly, under Order 21, Rule 32 of the C.P.C., it was necessary that before the execution of the decree, opportunity was given to the judgment-debtor to obey the decree and" the said opportunity should be given prior to the ordering of issuance of a process against him. But in the present case no opportunity whatsoever had been provided to the judgment-debtor to obey the decree and as such the execution application cannot succeed."
Thirdly, the provisions of Order 21, Rule 32, sub--rule (5). Of the C.P.C. Had not been complied with, for" the decree-holder was bound to get the sale-deed executed through the Court and should have got it registered at the office of the Sub-Registrar, Sheikhupura, but so far the same had not been done." Fourthly, the land in dispute was situate within the limits of Municipal Committee, Sheikhupura, and admittedly, the provisions of the Transfer of Property Act were applicable" and without registration of the sale deed, mere decree for specific performance do not create any right or title in favour of the judgment-debtor because the consideration amount in the original contract was Rs.1,000". The learned Additional District Judge, therefore, was of the view that "without the sale-deed having been executed in favour of judgment---debtor, no title had accrued in his favour and as such the possession of the disputed land cannot be delivered". Fifthly, the decree was in respect of Khasras No. 814 "whereas the decree-holder through execution proceedings seeks to obtain possession in respect of square No. 53 Killa Nos. 9/2 and 10, measuring 12 kanals 2 marlas, while no decree had been passed in his favour in respect of the same. Unless and until the decree had been amended accordingly, respondent No. 1 cannot lay hands upon the said land". As to the question of limitation, the learned Additional District Judge observed that though the decree could he executed within 12 years, yet time had started running against the plaintiff on 23-12-1963. "Only stay in respect of execution of decree available on the record is that a stay order was granted on 18-6-1965 and the same was confirmed on 25-3-1969. But the appeal was dismissed in the Honourable Lahore High Court, Lahore, in default on 27-6-1969. Thus, the period which has to be excluded while counting the period of limitation is four years and nine days. Thus, at the most the decree could be executed before 1-1-1979 but in this case the execution petition had been filed on 12-6-1980 which is obviously barred by time". In this behalf, the learned Additional District Judge referred to section 15 of the Limitation Act and concluded that "executing Court had thus wrongly excluded the period consumed in the round of litigation with Hafiz Abdul Hameed and Saeeda Begum in computing the period of limitation. The only period during which the execution of decree had been stayed has to be excluded while computing the period of limitation".
5. That the vendor, Muhammad Siddique, had died long before the execution application dated 12- 6-1980, is admitted. Learned counsel for the plaintiff, however, argued that as the vendor had, before the decree dated 23-12-1963, transferred his rights in the land to the subsequent vendees, Maula Dad and Muhammad Akram, and the suit had been decreed against them, this was a case in which the estate of the vendor was represented by the subsequent vendees and, therefore, no question of the execution application being against a dead man arose. In support of his view point, learned counsel cited Ahmad Din and 7 others v. Abdul Khalik and others PLD 1979 Lah. 898. On the other hand, relying upon Shahid Saleem Lone and others v. Ata-ur-Rehman and others 1985 CLC 2555, learned counsel for the respondents argued that as the proceedings ',, were against a dead man, the learned Additional District Judge was right m taking the view that he did. As has been seen above, the subsequent vendees were the defendants in the suit resulting in the decree dated 23-12-1963 and the decree was passed against them. It was, therefore, a case in which the estate of the vendor, Muhammad Siddique, was, for the purposes of these proceedings, represented by the subsequent vendees, and in my view, the rule applicable is the one laid down in Ahmad Din's case, namely, that it was not necessary to implead the vendor, Muhammad Siddique, as a party in the execution proceedings and that the execution proceedings could proceed against the subsequent vendees, Maula Dad and Muhammad Akram. As regards the view taken by the learned Additional District Judge of the provisions of Order 21, Rule 32 of the C.P.C., sub-rule (1) of Rule 32 provides that where the party against whom a decree for the specific performance of a contract has been passed, has had an opportunity of obeying the decree and has wilfully failed to obey it, the decree may be enforced by his detention in the civil prison or by attachment of his property or by both. It is plain that that sub-rule applies where the judgment-debtor has had an opportunity of obeying the decree but has failed to obey it and his failure to do so is sought to be visited with the penalties mentioned therein, namely, his detention 3n the civil prison or attachment of his property.
This conclusion, in my opinion, receives support from the provisions of sub-rule (5) of Rule 32, which provides shat where a decree for the specific performance of a contract had 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. The expression "processes aforesaid" obviously means the processes mentioned in sub-r--ule (1), namely, detention in civil prison and attachment of property. Here, the decree in favour of the plaintiff was a decree for possession through specific' performance and this was the decree which the plaintiff sought to execute. In his execution application, he did not ask for the detention of the judgment- debtors in civil prison or attachment of their property. However, that may be, in view of the course of litigation, which; as has been seen above, has been long and protracted, this was not a case in which it can be said that the judgment-debtor had had no opportunity of obeying the decree. I am, therefore, of the view that the learned Additional District Judge was wrong in taking the view that the provisions of Order 21, Rule 32, sub-rule (5), applied or that the respondents had had no opportunity of obeying the decree. For the contention that before directing the delivery of the land in dispute to the plaintiff in execution of the decree, execution of a sale-deed was necessary, reference was made to the provisions of Order 21, Rule 32, sub-rule (5), C.P.C. As has been seen above, that sub-rule does not, in terms, provide for the execution of a sale-deed. If it were a decree for the execution of a sale-deed, then Order 21, Rule 34 would have applied. As it is, it was a decree for the delivery of immovable property and it can possibly be argued that it more properly fell to be executed under Rule 35 of Order 21 of the C.P.C., which provides that "where a decree is for the delivery of any immovable property, possession thereof shall be delivered to the party to whom it has been adjudged, or to such person as -he may appoint to receive delivery on his behalf, and, if necessary, by removing any person bound by the decree who refuses to vacate the property".
Learned counsel for the respondents, however, relied upon Noor Ahmad and others v. B.
Muhammad Ibrahim and another PLD 1953 Lah. 470 and Maji Abdul Rahman and 3 others v. Noor Ahmad and 3 others PLD 1974 B J 25 to argue that a decree for the specific performance of a contract cannot be executed unless a deed of sale is executed. In Noor Ahmad's case, the following observations in Hakim Enayat Ullah v. Khalil Ullah Khan and another AIR 1938 All. 432 were cited with approval: "A decree for specific performance only declares the right of the decree---holder to have a transfer of the property covered by the decree executed in his favour. The decree by itself does not transfer title. That this is so is apparent from the fact that in order to get title to the property the decree-holder has to proceed in execution in accordance with the provisions of Order XXI, C.P.C. So long as the sale-deed is not executed in favour of the decree-holder either, by the judgment- debtor in the suit or by the Court, the title to the property remains vested in the judgment---debtor and till the execution of the sale-deed the decree-holder has no right to the possession of the property. It is only the execution of the sale-deed that transfers title to the property."
It should be plain that the question of the execution of a sale-deed relates to a stage after the decree for the specific performance has been passed. There was some controversy before me whether the land in dispute was situate within or without the limits of Municipal Committee, Sheikhupura, but if the rule of law enunciated in Haji Abdul Rehman's case applies, then a sale- deed in favour of the plaintiff can be executed even now. In other words, the non-execution of the sale-deed should not produce the result of disentitling the plaintiff to have his decree executed. He can apply to the executing, Court for the execution of a sale---deed and then pray for being placed in possession of the land in disputed: The learned Additional District Judge was also wholly wrong in holding that as .The decree was in respect of Khasra No. 814, .The plaintiff could not proceed against Square No. 53 Killa Nos. 9/2 and 10. Admittedly, the subsequent vendees were allotted the land comprising Square No. 53 Killa Nos. 9/2 and 10 in consolidation proceedings in lieu of Khasra No. 814 and, therefore, the plaintiff was entitled to follow that land in the hands of the subsequent vendees.
6. That brings us to the question of limitation. At the date of the decree viz. 23-12-1963 as also at the date the appeal of the subsequent vendees was dismissed, viz. 27-6-1969, section 48 of the C.P.C.
Provided: "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 12 years from the date of the decree sought to be executed. At the said dates, Article 182 of the First Schedule to the Limitation Act, 1908, provided a period of three years for the execution of a decree or order of any Civil Court other than applications to which section 48 of the C.P.C. Applied. Section 48 was amended by the Law Reforms Ordinance, 1972, and for the words "twelve years", the words "six years" were substituted. Also by the same Ordinance, Article 182 of the first schedule to the Limitation Act was repealed. Learned counsel for the parties were agreed that section 48 as it then stood, applied to this case and that the plaintiff had a period of 12 years within which to apply for the execution of the decree. This view must be taken to be concluded by Mirza Akbar A.I v. National Bank of Pakistan 1985 SCMR 190. It also appears to be well-settled that the relevant date for the purposes of limitation under section 48 of the C.P.C. Is the date of the appellate decree and not the date of the original decree.
Reference in this behalf may be made to Nacharammal and others v. Veerappa Chettiar and others AIR (32) 1945 Madras 485 and (32) All. 295. Learned counsel for the respondents herein, however, argued that despite the repeal of Article 182 of the first schedule to the Limitation Act, 1908, that Article was applicable to this case and in any case, the residuary Article 181 of the first Schedule to the Limitation Act, 1908, applied and as the application dated 12-6-1981 was made more than three years after the disposal of the earlier execution application, the application dated 12-6-1980 was hopelessly barred by time. Learned counsel sought to support the second limb of his contention by Hassan Khan Durrani v. Mehboob Khan 1988 CLC 97. It appears to me that the facts of this case fall within the rule of law laid down in Mirza Akbar A.I's case. There the Bank had obtained a money decree on 24-9-1969 and as no appeal was taken, the decree had become final. The first execution application was filed on 12-5-1972, but was dismissed on 16-9-1976. The second application was made on 19-11-1976 and was dismissed on 20-7-1977. The third application was made on 25-9-1977 and was dismissed on 20-5-1978. The fourth application was made on 25- 6-1981 and an objection was taken that it was filed beyond the period prescribed in Article 182 of the Limitation Act "as it was not within three years of the dismissal of the last application though it was within 12 years of the passing of the decree." It was conceded that the amendment in section 48 of the C.P.C. Made by the Law Reforms Ordinance, 1972, could not affect such decrees as were passed before the enforcement of the Ordinance and "on the same reasoning it was contended that repeal of Article 182 of the Limitation Act by the same Ordinance could not affect the vested right of the petitioner/judgment-debtor to insist that the application for execution must be moved within three years of the dismissal of the earlier execution application". It was held: "Article 182 of the Limitation Act did contain a clog on the right of the decree-holder as he was required to institute the second or subsequent application for execution of the decree within a period of three years from the dismissal of the last application. This clog having been removed by the Law Reforms Ordinance in 1972 and the law of the limitation being primarily a procedural law such a clog will not subsist after its repeal. The petitioner cannot claim a vested right arising out of it as none was conferred by such a provision. The substance of the provisions made in section 48 of the Civil Procedure Code and Article 182 of the Limitation Act being different the same principle as applies in giving effect to section 48 cannot be extended to Article 182 of the Limitation Act. The bar of moving the application within three years of the rejection of the last application did not continue. As otherwise the application had been made within twelve years from the date of the decree, it fulfilled requirement of section 48 as it stood before its amendment by Law Reforms Ordinance."
As to Hassan Khan Durrani's case, it suffices to say that that was a case in which the decree was passed on 10-1-1970 and the first execution application was made after the lapse of more than five years on 12-2-1976. It was in this context that the question of the application of Article 181 of the Limitation Act arose. No such question arises in this case, for here, the application dated 12-6-1980 was not the first application and in any case, the facts of this case are within the rule laid down in Mirza Akbar A.I's case, for, here as there, the execution application in question was not the first application and the application was made more than three years after the dismissal of the previous application.
7. Learned counsel for the respondents herein tried to support the judgment of the learned Additional District Judge on two more grounds. The first is that the vendor had sold the land in suit in favour of the subsequent vendees before the institution of the suit that is on 1-8-1962; that the subsequent vendees were parties to the suit and as the sale-deed in their favour was a registered sale---deed, unless that sale-deed was cancelled by the decree dated 23-12-1963 the plaintiff is not entitled to execute it. Secondly, the land had been cancelled from the names of Mst. Bibi Rani and Dhamali Shah, predecessors-in-interest, of the vendor by the Settlement Commission's order dated 15-7-1978 and, therefore, there is no land against which the decree can be executed.
8. For his first contention, learned counsel referred to Syed Mithal Shah v. Khawaja Rafiullah and another PLD 1975 Kar. 930. That was a case in which the suit of the plaintiff, appellant before the High Court, for the specific performance of an agreement of sale had been dismissed: the dismissal of the suit was supported, among others, on the ground that after the agreement of sale in the plaintiff's favour, the vendor had executed a sale-deed in favour of one of the respondents. It was argued that the plaintiff had known of the sale-deed in favour of one of the respondents and a decree could not possibly be granted to him". So, long a registered sale-deed which completely and legally transferred the rights in the land to the respondent No. 2 was in the field, and that it was necessary for him to have got that document cancelled before he could obtain the relief prayed for". Learned counsel appearing for the appellant therein conceded that the suit in the present form was not properly framed and that it would have also included the prayer for cancellation of the registered document of sale in favour of respondent No. 2 and that the plaint should have been amended. Be that as it may, this objection does not relate to the execution of the decree, it should have been raised in the suit. This was not done and it is, -in my view, too late in the day to allow this technical objection to prevail. I am also of the view that in the facts of this cage, the Court must be taken to have, if not expressly, by necessary implication, cancelled the sale-deed in favour of the subsequent vendees. In this connection, it is necessary to recall to mind the finding of the learned trial Court. As regards the sale-deed in favour of the subsequent vendees, it was that the subsequent vendees were not bona fide purchasers without notice. It is because the decree in the plaintiffs favour followed that finding that I say that by necessary implication the sale-deed in favour of the subsequent vendees was by necessary implication cancelled. Concerning the second ground, it suffices to say that the plaintiff has stepped into the shoes of the vendor, Muhammad Siddique. Neither of these contentions is, therefore, entitled to succeed; they are repelled.
9. In the result, the revision petition succeeds, the judgment of the learned Additional District Judge dated16-4-1987 is set aside and that of the learned Executing Court restored. To meet the objection based upon the rule of law laid down in Noor Muhammad and others v. B. Muhammad Ibrahim and another PLD 1953 Lah. 470 and followed in Haji Abdul Rehman and 3 others v. Noor Ahmad and 3 others PLD 1974 Baghdadul Jadid 25, the learned Executing Court may call upon the successors- in-interest of Muhammad Siddique, vendor to execute a sale-deed in favour of the plaintiff and if they fail to do so, the Court may itself execute a sale-deed through somebody duly appointed by it.
The respondents, Muhammad Akram, Maula Dad, Ajmal Khan and Hanif Khan, shall bear the costs of the plaintiffs throughout.