1. ZAFFAR HUSSAIN MIRZA, J.---The question of law raised in this appeal is whether an application for execution of a decree passed by a Civil Court which was originally governed by Article 182 of the Limitation Act, is now after the omission of the said Article and amendments effected in section 48 of the C.P.C., by the Law Reforms Ordinance, 1972, governed by the residuary Article 181 or by section 48, C.P.C.
2. This question of law arises in the following circumstances. A consent decree was passed in a suit filed by the appellant against the respondent whereby it was directed that if the appellant (decree holder) paid a sum of Rs, 14,000 on or before the 30th March, 1971, to the respondent he would become the owner of the immovable property which was the subject-matter of the suit. In the alternative option was given to the respondent (judgment-debtor) to pay an amount of Rs, 23,000 to the appellant within the aforesaid time, in which event he would become owner of half of the property. In case of default by either party to avail of the benefit of the said directions, the property would be sold and the sale proceeds were to be distributed amongst the parties in the specified manner.
3. In the events that happened neither party availed of the option open to him under the first part of the decree within the prescribed time with the result that the decree could only be executed by sale and distribution of sale proceeds in the manner provided. The appellant (decree holder) filed an execution application on 12th February, 1976, after the lapse of five years seeking the assistance of the Court to sell the property and disburse the sale proceeds. In the executing Court the judgment-debtor raised the objection that the execution application was barred under Article 181 of the Limitation Act but this objection was overruled and the Court ordered execution to issue. The Court held that Article 181 was not applicable to the case and that under the amended provision of section 48, C.P.C., a period of six years for filing an application for execution of a decree was available within which time the execution was sought.
4. On revision by the judgment-debtor a learned Single Judge of the Sindh High Court accepted the objection that the application for execution was out of time and dismissed the execution application by his judgment dated 23rd February, 1987. Leave was granted by this Court to examine the question mentioned in the opening part of this judgment arising out of the impugned judgment of the High Court.
5. It is common ground that before the promulgation of the Law Reforms Ordinance, 1972, decrees passed by any Civil Court other than the High Court in the exercise of its ordinary original civil jurisdiction, were governed by Article 182 of the Limitation Act which provided for an initial period of three years from the date of decree, and a similar period of three years from the date of final order passed on a previous application for execution. Before the amendment of the law, thus, any number of successive applications for execution of decree were possible with the outer limit of 12 years from the date of decree prescribed by section 48, C.P.C.
6. However, with the deletion of Article 182 and the substitution of the period of 12 years with 6 years in section 48, C.P.C. The position has changed.
7. The learned Single Judge has taken the view that section 48, C.P.C. No doubt provides the outer limit of 6 years for execution of a decree but this section is attracted only in case of a second or afresh application after the first application for execution is disposed of. In this view of the matter the learned Judge has held that section 48 was not applicable in the present case, since this was the very first application for execution filed by the decree-holder and, therefore, according to his view the residuary Article 181 would govern this case which prescribes a period of three years from the date when the right to apply accrues.
8. Mr. J.H. Rahimtoola learned counsel for the appellant, has contended that the execution application filed by the appellant on 12th February, 1976, was within time as the period of 6 years was to expire on 1st April, 1977. According to the submission of the learned counsel Article 181 has no application in the instant case, for the simple reason that its language expressly provided that it applies to applications for which no period of limitation is provided elsewhere in the schedule to the Limitation Act or by section 48, C.P.C. Since section 48, C.P.C. Provided a period of limitation of 6 years, it follows that Article 181, is not applicable to the present case.
9. Mr. Shafaat Hussain, learned counsel for the respondent, on the other hand, supported the view taken by the learned Judge in the High Court and maintained that, as section 48, C.P.C. Is in terms only attracted to a "fresh application" for execution, plainly the said provision will not govern the first application for execution after the passing of the decree as in the present case. Accordingly the submission of the learned counsel is that since there is no other Article prescribing a period of limitation for such an application and section 48, C.P.C. Also does not apply it was rightly held by the High Court that the limitation in this case was governed by Article 181.
10. The crux of the argument advanced on behalf of the appellant is that Article 181 would be attracted only in case section 48, C.P.C. Is inapplicable to an execution application, but according to the learned counsel by the omission of Article 182, the only remaining provision governing the limitation for execution of a decree of a Civil Court is section 48, C.P.C. Which prescribes a period of six years.
11. However, the applicability of section 48 would turn upon the crucial expression used in section 48, C.P.C., namely, "any fresh application". The relevant part of section 48, C.P.C. May now be reproduced which reads as under:- "Section 48. (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) ............................................
12. (2)........................................................................
13. Now admittedly in the present case the execution application in question was the first ever made after the decree passed in the suit. Section 48, C.P.C. Was amended by the Law Reforms Ordinance, 1972 and the period of six years was substituted in place of the original period of 12 years prescribed by the said' provision. D.F. Mulla in his commentary on the Code of Civil Procedure Code, before its amendment explained the object underlying the provisions of section 48 as under:- "This section deals with the maximum limit of time for execution; it does not prescribe the period within which each application for execution is to be made..............
14. A decree-holder is entitled to present in succession any number of applications for execution of the same decree, and the Court has no power to refuse execution, unless--
(i) the application is barred by virtue of general principles of law analogous to those of res judicata; or
(ii) the application is barred under Article 182 of the Limitation Act, 1908; or
(iii) the execution of the decree is barred under the present section, though the application for execution may not be barred under (i) or (ii) above."
15. In other words since section 48 prescribes the outer limit of time for making execution application of the same decree, it does not really prescribe a time limit for an application for execution, which is controlled by the Articles in the third division of the first Schedule to the Limitation Act.
16. By Law Reforms Ordinance (XII of 1972), the Limitation Act was also amended with the result that Article 182 was omitted. But for the omission of Article 182 the execution application in the present case would have been governed by the said Article of the Limitation Act. Article 182 was specifically applicable to an application for execution of a decree or order of any Civil Court, and it provided a period of three years (or where a certified copy of the decree has been registered six years), whereas the third column prescribed various dates from which the period of limitation commenced, to run. Seven different clauses were provided in the third column with regard to the terminus a quo of the period of limitation. The first clause dealt with the date of decree or order.
17. Clause 5 referred to an application for execution where there has been a previous proceeding in execution in the Court. This was the only clause which dealt with such a situation and it provided that successive applications could be made for execution or step in aid of execution of decree could be taken within the period prescribed by column 2 of the Article. With the result that by itself Article 182 did not create any hindrance in making any number of successive execution applications extending over indefinite period of time, provided that such applications are made within the period, from time to time as required by clause 5. Now the relevant part of Article 182 may with advantage be set out as under:-- Description of applicationPeriod of limitation Time from which period begins to run.
18. 182, For the execution of a decree or order of any Civil Court other thanThree years; or, where a certified copy of the decree has been registered, six years.(1) The date of the decree or order, or (1)Application to which section 48 of the Code of Civil Procedure, 1908 applies; and (5) (where the application next hereinafter mentioned has been made) the date of the final order passed on application made in accordance with law to the proper Court for execution or to take some step in aid of execution of the decree or order, or
(2) application provided for by Article 183.
19. It was in this context that section 48 was construed not to lay down a period of time for an execution application as a statute of limitation, but only to lay down an outer limit for keeping a decree alive for execution and to bring an end to an otherwise indefinite succession of applications.
20. Mr. Khalid Anwar learned advocate who appeared as amicus curiae on Court notice, submitted before us that the amendment effected in section 48 C.P.C. And the omission of Article 182 of the Limitation Act was in consequence of the recommendations contained in the Report of the Law Reform Commission 1967-70. This is correct as acknowledged in the preamble to the Law Reforms Ordinance (XII of 1972). The relevant portion dealing with execution of decrees in the Report of the Commission in paragraph 10 at page 377 reads as under:-- "10. Time limit for execution of decrees.-- After a decree-holder has obtained a decree, he gets twelve years to execute the same under section 48 of the Code. As he can execute his decree at any time during this long period, he does not generally file any application under Order XXI, rule 11 for execution unless he has a reasonable expectation of obtaining full or partial satisfaction of his decree. But Article 182 of the Limitation Act, 1908, requires him to start execution proceedings within three years of the decree and then within three years of the final order passed on each application, if the judgment-debtor has not the capacity to satisfy the decree. He has to make these applications only to take what are known as steps in aid of execution within the meaning of Article
182. Public opinion is in favour of omitting Articles 182 and 183 of Schedule 1 to the Limitation Act and leaving the decree-holder to execute his decree at any time within the period prescribed under section 48 of the Code. It is also unanimously in favour of reducing the period of limitation for execution of decrees prescribed by section 48 of the Code read with Article 183 of the Limitation Act from twelve years to six years, provided Article 182 of the latter Act is so amended as to make it unnecessary for a decree-holder to make an application for execution of the decree every three years. We, therefore, recommend that section 48 of the Code and Article 183 of the Limitation Act be amended to reduce the period of limitation for execution of decrees from twelve years to six years and Article 182 of the latter Act be amended so that it may not be necessary for a decree- holder to make an application for execution of the decree every three years."
21. At page 403 of the said Report while recording their conclusion the Commission observed:-- "We have examined the provisions contained in the Limitation Act and have come to the conclusion that these are not dilatory. We have elsewhere in this Report examined section 48 of the Code of CivilProcedure and Article 183 of the Limitation Act and have recommended that these should be amended so as to reduce the period of limitation for execution of decrees from twelve to six years. We have also recommended that Article 182 of the Limitation Act should be amended see that it may not be necessary for a decree-holder to make an application for execution of a decree within three years from the date of decree or from the date of the last application for execution of the decree. Besides that no amendment in the Limitation Act is necessary."
22. However, Mr. Khalid Anwar stated that in the light of these recommendations of the Law Reforms Commission instead of amending Article 182 so as to make it unnecessary for a decree-holder to make an application for execution of a decree every three years, Article 182 was omitted in its entirety and the period of 12 years prescribed in section 48 was reduced to six years. He referred us to similar amendments made in the law of limitation in vogue in India, where Article 136 of the Limitation Act, 1%3, replaces Article 182 of the old Limitation Act, whereby a period of 12 years limitation was provided, for execution of any decree, other than a decree granting a mandatory injunction by a Civil Court. In the third column, dealing with the time from which the period begins to run, clauses 5 to 7 of the old Article 182 were omitted and clauses 1 to 4 were put into simpler language. Also no reference was made to Article 183 and section 48 C.P.C., which were both repealed and omitted.
23. According to the submission of Mr. Khalid Anwar the residuary Article 181 is attracted, to applications for execution, for which no period of limitation is provided in the Limitation Act or by section 48 C.P.C. The latter category, namely, applications governed by section 48 C.P.C., according to the learned counsel are those applications which are made subsequent to the first application for execution of a decree. For such applications the maximum period of limitation is six years from the date of decree. Article 181 may also at this stage be reproduced as under:-- Description of application Period of limitationTime from which period begins to run.
181. Applications for which no period of limitation is provided elsewhere in this schedule or by section 48 of the Code of Civil Procedure, 1908.Three years When the right to apply accrues.
24. As section 48, C.P.C. Is mentioned in Article 181 by way of exclusionary provisions obviously this Article has to be read with section 48, C.P.C., although the two provisions are independent and parallel provisions, with different scopes and objects. With the disappearance of Article 182 obviously no other Article of the Limitation Act is specifically attracted to the application for execution of the decree of a Civil Court, other than High Court. On the plain language of section 48, C.P.C. The object underlying that section was to provide an outer limit of time and prohibit the making of an order for execution of a decree on a "fresh" application "presented" after expiration of six years from the date of the decree etc. In order to see whether in the present case the limitation contained in section 48 is attracted or not it is necessary to determine whether execution was sought on a fresh application presented after the said period. The word "fresh" has been defined in the Oxford English Dictionary, Volume IV, to mean, inter alia, "new, recent" or "newly made". It, therefore, appears that the application within the contemplation of the prohibition contained in section 48 was not the first execution application but any sebsequent application, after such first application, which was presented beyond the prescribed period of six years. Construed in this light, and reading the two provisions together, it would appear that the effect of the amendment made by the Law Reforms Ordinance, 1972, is that the first application for the execution of the decree of a Civil Court would be governed by the residuary Article 181 prescribing a period of three years and since any subsequent or fresh application for execution would be governed by section 48, C.P.C., it would be out of the purview of Article 181 on its express terms. In some of the Indian decisions the expression "fresh application" has been so construed to mean application for execution after the disposal of the first execution application. See Yadorao Wasudeorao Pathak v. Govindrao Ramji Pant AIR 1939 Nag. 245, Lckshmi Amma Kochukutty Amma and another v. Raman Pillai Kumara Pillai and others AIR 1952 Travancore-Cochin 268 and Venlappa and others v. Lakshmikant Rao AIR 1956 Hyd.7.
25. The position that emerges from the above discussion is that, as already stated, the first application for execution of a decree would be governed by the residuary Article 181 and the rest of the applications made, thereafter, will be governed by the six years time limit prescribed by section 48.
26. Although the original purpose underlying section 48, read alongwith Articles 181 and 182 of the Limitation Act, before the amendment of the law was to provide maximum limit of time for execution of a decree. But in the changed position as a result of Law Reforms Ordinance, the only effect of section 48 would be to provide limitation for subsequent execution applications after the first one. The result would be that if no application at all is made within the period prescribed by Article 181, the execution application made, thereafter, would be barred under the said Article and as such there would be no occasion to avail of the benefits of the extended time provided by section 48, C.P.C. In other words once an application for execution is made within time so prescribed, any number of applications for execution can be presented within the six years period from the date of decree. This construction, in my opinion is the only construction that can be placed on the consequent legal position arising out of the amendments made by the omission of Article 182 and substitution of six years period in section 48, C.P.C. Otherwise the provisions for repeated applications every three years or taking steps in aid of execution provided for in Article 182, having disappeared, section 48 would I become redundant and ineffective.
27. In this view of the matter since in the present case the first application for execution was submitted beyond the period of limitation prescribed by Article 181 the learned Single Judge was right in holding that the same was out of time. This appeal, therefore, fails and is accordingly dismissed with no order as to costs.
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