This revision petition arises out of an application for execution of the decree dated 10-12-1974. The petitioner's objection petition was dismissed by the executing Court and the appeal filed by him also met the same fate. Hence, this petition.
2. The brief facts of the case are that Sibghat Ullah respondent No.1 had filed a suit for possession through pre-emption against petitioners Nos. 1, 2, 8 and Ata Muhammad, predecessor-in-interest of respondents Nos.3 to 8 on 1-9-1989 in the Court of Civil Judge, Dera Ghazi Kham. Respondents Nos.2 to 4 were also respondents in the trial Court. The suit was decreed by the trial Court vide its judgment and decree dated 10-12-1974. The petitioners filed an appeal in the Court of District Judge, D. G. Khan which was admitted to regular hearing and the execution of the decree was stayed by the Court vide order dated 13-12-1974. Then the petitioners' appeal was dismissed by the learned District Judge, D.G. Khan vide his judgment and decree dated 19-3-1975. 1n R.SA. 175 of 1975 filed by the petitioners execution of the decree was stayed on 3-4-1975 and the appeal was dismissed by this Court on 22-2-1977. The petitioners filed Civil Petition for Special Leave to Appeal on 1-6-1977 in which the Supreme Court was pleased to stay the execution of the decree on 3- (>-1977. The said petition was finally dismissed on 16-2-1985.
3. In the meanwhile, the respondent claims to have filed an application for execution of the decree.
However, execution of the decree was stayed by the learned District Judge on 13-12-1974. The second execution application (which is said to be the first application by the learned counsel for the petitioner) was filed on 22-9-1985. The petitioners filed an objection petition on 10-4-1986 in which it was urged that the execution petition was barred by time. The petitioners also filed an application with a prayer for framing of issue on the point of limitation. However, the said application was not disposed of by a separate order. The objection petition was dismissed by the executing Court vide order dated 17-1-1989. The appeal filed by the petitioners was dismissed by the learned District Judge, D.G. Khan vide his judgment dated 23-1-1989.
4. The learned counsel for the petitioners has urged that there was no evidence to show that the petitioners had filed some execution application id December 1974. He has submitted that by virtue of provisions of section 48 of the C.P.C. The execution petition as barred by time and merited dismissal. In this connection he placed reliance on Mst. Zulekha Bibi v. Rana Persad (AIR 1941 Patna 45) and Roshan Din v. S.M. Burhan-ud-Din (PLD 1969 Karachi 546).
5. On the other hand the learned counsel for the respondents urged that in the second execution petition a reference was made about the earlier execution application. Moreover, in the revision petition the institution of the first application was nowhere challenged. He submits that the execution of the decree was stayed by the first appellate Court on 13-12-1974. The appeal was dismissed on 19-3-1975 and then regular second appeal was filed wherein the execution of the decree was stayed on 3-4-1975. The R.S.A. Was finally dismissed on 22-2-1977. Thereafter, the Supreme Court was pleased to stay execution of the decree on 3-6-1977. The Petition for Special Leave to Appeal was dismissed on 16-3-1985. Thus, excluding the time during which the execution remained stayed, the execution petition was filed well within time. He has placed reliance on Muhammad Bakhsh and 2 others v. Muhammad Bakhsh and 9 others (1981 CLC 98) and Mst.
Tahira Bibi and others v. Sher Muhammad and others (1985 SCMR 1577).
6. 1 have considered the contentions raised by the learned counsel for the parties and perused the material on the record and gone through the case-law cited by the learned counsel for the parties.
7. Although a reference to the first execution petition has been made in the execution petition filed by respondent No.1 on 22-9-1985 yet there is no other cogent material to show that any execution petition was actually filed by the respondent earlier. At any rate, this makes no difference because even if the respondents had filed the execution petition for the first time on 22-9-1985 the same was not barred by limitation.
8. Zulikha Bibi's case is of no help to the petitioners because it primarily relates to the question as to whether section 48 overrides sections 6 and 7 of the Limitation Act or vice versa. The said question is not involved in the present case. The question involved in the present case relates to the provisions of section 48 of the C.P.C. And section 15 of the Limitation Act, 1908. In the case of Koer Durga P.1 Singh v. Pancham Singh AIR 1939 All. 403(F.B.) it was held that section 15 of the Limitation Act overrides the provisions of section 48 of the C.P.C. Roshan Din's case relied upon by the petitioners' learned counsel pertains to rent matter under the West Pakistan Urban Rent Restriction Ordinance and has no relevance to the controversy between the parties.
9.It is evident from the record that the execution of the decree dated 10-12-1974 was stayed by -the appellate Court just after two days on 13-12-1974. Thus, there was no occasion for the respondent to apply for execution of the decree. He was entitled under the law to wait till the decree had attained finality and matured for execution: The first appeal was dismissed on 19-3-1975 and thereafter Regular Second Appeal No.175/75 was filed in this Court on 2-4-1975 in which the execution of the decree was again stayed on 3-4-1975. The R.S.A. Was dismissed on 22-2-1977 and after three months and 10 days the Supreme Court was pleased to stay the execution of the decree. The petition for special leave to appeal was dismissed on 16-2-1985 and the petitioner filed execution petition on 22-9-1985. Thus, it is evident that the petitioner filed the application for execution well within the period of six years, after excluding the time under the provisions of section 15 of the Limitation Act, during which the execution of the decree remained stayed. As held in the Full Bench case of Allahbad High Court section 15 of the Limitation Act overrides provisions of section 48 of the C.P.C. The executing Court can legitimately exclude the time during which the stay orders issued by the competent Courts with regard to the execution of the decree remained in force. This view is supported by the above cases of Muhammad Bakhsh and Mst. Tahira Bibi relied upon by the learned counsel for the respondents. In Muhammad Bakhsh's case, the decree for possession through pre-emption was passed by the appellate Court on 12-4-1960. The second appeal (R.SA.199/1966) against the decree was filed in this Court and the execution of the decree was stayed. The appeal was held to have abated vide order dated 6-5--1974 due to the death of the predecessor-in-interest of respondents Nos.3 to 10 in the said appeal. Thereafter an application was filed on 7-6-1974 for the first time for execution of the decree dated 12-4-1960. It was held as under: "The admitted position also being that stay had been granted against the execution by the High Court in R.S.A. No.199/66 it shall be deemed to have continued and withdrawn only when the formal order was passed by the High Court on 6-5-1974 holding the appeal aforementioned as abated.
The execution petition having been filed on .7-6-1974, by the conjuctive reading of Article 181 of the Schedule to the Limitation Act and section 15 ibid, it appears that the petition, was within time."
The proposition that the provisions of section 48, C.P.C. Are controlled by section 15 of the Limitation Act also finds support from a number of other judgments as well. In the case of Sitaram v.
Chunnilalsa AIR 1944 Nag. 155, it was held as under:- "On a close scrutiny of the language, we have come to the conclusion that Section 48, Civil P.C., prescribes a period of limitation for execution of a decree. In computing the period of limitation prescribed for an application for the execution of a decree section 15, Limitation Act, allows a certain period to be excluded. The provision is perfectly general. It is not restricted to the limitation prescribed by Schedule I, Limitation Act. Where such restrictions are intended it has been so specifically stated: see Sections 3 and 6, Limitation Act. In the absence of such qualification or restriction in S.15, the provisions contained therein are of general application.
10. As explained above the decree became ripe for execution only on 16-2-1985 when the Supreme Court finally dismissed the Petition for Special Leave to Appeal filed by the present petitioner. The execution petition was filed on 22-9-1985. Excluding the period during which the execution of the decree R remained stayed the execution petition was clearly filed within the period of 6 years provided under section 48 of the C.P.C.
11. In this view of the matter this revision petition fails and is dismissed with costs.