' This Execution Application has been filed by M/s. Hafeez Construction Company through its Sole Proprietor Gabruddin against M/s. Javedan Cement Limited Company for recovery of a sum of Rs, 24,76,775/81 on account of a decree passed in pursuance of an award filed in this Court by the Arbitrator Mr. Mirza Arshad Beg.
2. Writ of attachment was issued against the property of Judgment-Debtor mentioned in the Execution Application whereupon the Judgment Debtor deposited a sum of Rs, 23,28,840 with the Nazir. He alleged that even out of this amount a sum of Rs, 4,23,385.72 was payable to Mercantile Cooperative Credit Society Limited. Consequently the Court ordered on 22-5-1989 that the sum of Rs,4,23,385.72 be retained while the remaining amount be paid to the Decree-Holder. Before that amount could be paid to the Decree-Holder Execution Application No,71/89 has been filed by Mercantile Co-operative Credit Society Limited against M/s. Hafeez Construction Company and Gabruddin for recovery of Rs,5,25,110.93.
3. MrAbrar Hassan, who has appeared for M/s.Hafeez Construction Company and Gabruddin has filed objections to the Execution Application of Mercantile Co-operative Credit Society. The main objection is that the execution application is barred by time. He submitted that Section 48(1) C.P.C.
Provides the period of limitation for a decree. It reads as under:- "48.Execution barred in certain cases.-
(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) where the decree or any subsequent order directs any payment of money or the delivery of any property to be made at a certain date or at recurring periods, the date of the default in making the payment or delivery in respect of which the applicant seeks to execute the decree."
4. The bare perusal of this provision would make it clear that Section 48 of .C.P.C. Lays down a maximum period of 6 years as limitation after expiry of which r1 ' it is not open to a Decree-Holder to make fresh application for execution of the decree.
5. That the date of the decree in favour of the Mercantile Co-operative Credit Society is 22-12-1982 while this execution application is presented on 1-8-1989 and is therefore clearly time-barred.
6. In reply Mr.Iqbal Qazi stated that Article 183 of the Limitation Act and not Section 48 of C.P.C.
Would apply to this case. Mr. Iqbal Qazi contended that in view of Article 183 the period of six years for a decree of High Court will be computed afresh from the date when any part payment of principal amount or interest is made under the decree, which is not provided under Section 48(1)
C.P.C. Since in this case part payment of Rs,1,19,389.12 is shown to have made on 30-4-1984 by the Javedan Cement on behalf of Judgment-Debtor to the Decree-Holder therefore the execution application is in time. Article 183 reads as under:- "183. To enforce a judg-ment, decree or order of any High Court in the exercise of its ordinary original civil jurisdiction or an order of the Supreme Court.
' Six Years.
' When a present right to enforce the Judgment, decree or order accrues to some person capable of releasing the right: ' Provided that when the judgment, decree or order has been revived, or some part of the principal money secured thereby, or some interest on such money has been paid, or some acknowledgement of the right thereto has been given in writing signed by the person liable to pay such principal or interest, or his agent, to the person entitled thereto or his agent, the twelve years shall be computed from the date of such revivor, payment or acknowledgement or the latest of such revivors, payments or acknowledgements, as the case may be."
' He then pointed out that Section 59 of the Co-operative Societies Act provides that the award thereunder will be treated as a decree of the Civil Court. Relying upon PLD 1970 Karachi 362 Faizan v. Pakistan he contended that so far as Districts of Karachi was concerned High Court of Sindh was the principal Civil Court of original jurisdiction. Hence an award thereunder is a decree of High Court in the exercise of its ordinary original civil jurisdiction as far Karachi is concerned. I have gone through this ruling. It on the contrary goes against Mr.Iqbal Qazi. It says that both the ordinary civil jurisdiction and the extraordinary civil jurisdiction enjoyed by the other High Courts owe their creation wholly to the Letters Patent of the respective High Courts and the original civil jurisdiction of Karachi Bench does not so owe its creation to the Letters Patent. It cannot therefore be treated as ordinary original civil jurisdiction of Sindh High Court, but it is a special original civil jurisdiction.
Reference in this ruling was made to the well-known decision of Firdous Trading Corporation v.
Japan Cotton & Gen. Trading Co. PLD 1%1 Karachi 565 where it was held by Wahiduddin, J. As under:- "It seems to me that the jurisdiction exercised in such matters is District Court jurisdiction and since it is exercised by the High Court it may be called as special original civil jurisdiction or extraordinary original civil jurisdiction but cannot he described as ordinary original civil jurisdiction of the High Court."
' Same view has been taken by a Full Bench of this Court in PLD 1974 Kar.345-- Asad Ali v.
Settlement and Claims Commissioner.
The present original civil jurisdiction enjoyed by this Court has been preserved and continued by Para 5 of the Establishment of West Pakistan High Court Order, 1955 read with Section 8 of Sindh Courts Act, 1926, as amended by Karachi Courts Order 2 of 1956. Neither Sindh Courts Act 1926, nor Karachi Courts Order, 1956 enacts that Sindh Chief Court will have ordinary original jurisdiction within the limits of Karachi. Thus the original civil jurisdiction of Sindh High Court is a special original civil jurisdiction conferred by Section 8 of Sindh Courts Act 1926 and maintained by Karachi Courts Order 2 of 1956, which presently is only with respects to suit exceeding Rs,1,00,000 without limit. The District Judges of Karachi do not enjoy unlimited pecuniary civil jurisdiction. Presently their jurisdiction is limited to suits not exceeding Rs,1,00,000. High Court of Karachi enjoys unlimited civil pecuniary jurisdiction so far as the Districts of Karachi are concerned. Therefore the High Court of Sindh and not the Court of any one of the District Judges of Karachi is the principal civil Court of original jurisdiction so far as the Districts of Karachi are concerned. Hence the civil original jurisdiction of Sindh High Court of Karachi cannot be termed as ordinary original civil jurisdiction, but it is a special original civil jurisdiction. Since Article 183 of the Limitation Act applies to a "judgment decree or order of any High Court in the exercise of its ordinary original civil jurisdiction" therefore it cannot apply to the award under Section 59 of the Co-operative Societies Act even if it is treated as a decree of a Civil Court i,e, decree of this Court being a principal civil Court of original jurisdiction. The execution application for enforcement of the decrees of Sindh High Court will therefore be governed by the provisions of Section 48(1), C.P.C. And not by that Article 183 of Limitation Act.
7. The second contention of Mr. Abrar Hassan was that the Mercantile Cooperative Credit Society had once tried to recover the amount from M/s. Hafeez Construction Company by resorting to the mode prescribed for land revenue. He cannot now be allowed to switch on to the second mode provided under Section 59 of the Co-operative Societies Act i,e, through the civil Court. In this connection he has relied upon the commentary in the Book "The Bombay Co- operative Societies Act" with rules by K.S.Gupta (Revised and Enlarged) Edition page 410, which reads as under:- "The question is whether after recovery had been started and made partially by one process, it is permissible to resort to the other by abandoning the former especially because the law of the land, i,e, the civil law does entertain an application for execution as being time barred. S.59 contemplates recovery by either of the two processes, specified therein viz. The Civil Court process or the process under the Land Revenue Code as arrears of land revenue. The processes are cited as alternative connected by the word 'or' and do not seem to have been meant to supplement the other. It does not seem to be correct to hold the view that there is no objection to trying the Second process even after the first had been tried and partial recovery made by it. If the legislature had meant this, they would have easily made it clear by adding the words `or both'. It is really difficult to persuade one to allow the strange concession to the co-operative societies to try to set at naught the order of the civil Court dismissing the application of the society as being time barred and to move the Revenue Authorities to execute the order for recovery of their dues by making use of all those exceptional measures under the Land Revenue Code which is intended obviously for the collection of land revenue. The public expect the co-operators at least to have due respect for the ordinary law of the land i,e, the civil law. The present attempts of co-operative societies to ask for more privileges and concession at every step arc creating suspicion in the minds of the people.
They complain that the co-operative movement is at present based not on self-help but on Government help."
' Since this execution application can be disposed of solely on the point of limitation therefore I do not want to express any opinion on this aspect of the case and leave it to be decided at some other time. It was further complained by Mr. Abrar Hassan that this execution application filed against M/s. Hafeez Construction Company was fraudulent and collusive and had been manipulated at the instance of Javedan Cement Limited in order to pressurise him to give up his claim in Execution Application No,28/89 filed by him against Javedan Cement Limited.
8. The objection of Mr.Abrar Hassan relating to the period of limitation is quite sound and could not be controverted by the counsel for the Decree-Holder. I therefore dismiss Execution Application No,71/89.
9. Execution Application No,28/89 is taken up and C.M.A.No, 2138/89 is granted and Judgment- Debtor is ordered to deposit Rs, 2,09,449/83. The amount deposited by the Judgment-Debtor in this execution is ordered to be paid to the decree-holder.