' Briefly stated the facts of the present case are that Maulvi Abdul Qayyum plaintiff/respondent herein, brought a suit for possession of land through pre-emption against Anwar Shah defendant/petitioner herein, which was decreed in his favour by the learned Civil Judge, Mansehra on 27-4-1981 where-against the appeal preferred by Anwar Shah defendant was dismissed by the learned District Judge, Mansehra on 18-10-1981 and then the revision petition filed in this Court by Anwar Shah also met the same fate on 18-11-1986. The decree-holder Maulvi Abdul Qayyum submitted execution application in the trial Court on 5-1-1987 which was contested by Anwar Shah petitioner by making an application that it is time-barred. The learned two Courts below after perusal of the record and hearing the learned counsel for the parties rejected the application of Anwar Shah petitioner. Hence the present revision petition.
2. I have heard the learned counsel for the petitioner and the learned counsel for the respondent and have also perused the record.
3. The learned counsel for the petitioner submitted that in this case preemption decree was passed on 27-4-1981 and appeal preferred against this decree failed on 18-10-1981. Thereafter, a revision petition was filed in the High Court which was also dismissed on 18-11-1986. He submitted that during the pendency of the revision petition in the High Court no stay order was issued. He submitted that execution application was filed in the trial Court on 5-1-1987 which was to be dismissed being time-barred.. He submitted that Article 181 of the Limitation Act is applicable in this case and the execution application is to be filed within a period of three years. According to him the respondents could have filed this application by 17-10-1984 counting the days of limitation from 18-10-1981 when the appeal failed whereas the execution application was filed by the respondent on 5-1-1987 which is clearly time-barred. He relied on 1987 CLC 2185.
4. On the other hand the learned counsel for the respondent submitted that only one application was filed on 5-1-1987 and it was within 6 years and section 48 of the Code of Civil Procedure will apply in this case and not Article 181 of the Limitation Act. In support of his argument he relied on 1988 CLC 30. He submitted that he made the execution application within a period of five years and three months and six years maximum period as prescribed in section 48, C.P.C. Has not yet expired.
5. After hearing the arguments of the learned counsel for the parties and after perusal of the record I am of the opinion that the contention raised by the learned counsel for the petitioner has much force and in my view Article 181 of the Limitation Act would be applicable in this case. Article 181 of the Limitation Act reads as under:-- {{TABLE}} "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.
' For the sake of comparison it will be beneficial to re-produce section 48 of the Civil Procedure Code which is 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 (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.
(2) Nothing in this section shall be deemed
(a) to preclude the Court from ordering the execution of a decree upon an application presented after the expiration of the said term of (six) years, where the judgment-debtor has, by fraud or force prevented the execution of the decree at some time within (six) years immediately before the date of the application; or
(b) to limit or otherwise affect the operation of Article 183 of the First Schedule to the Limitation Act, 1908.
' From the above Article 181 of the Limitation Act, 1908 and section 48 of the Code of Civil Procedure it is clear that under Article 181 the period of limitation for first application is given three years whereas under section 48 of the Civil Procedure Code, quoted above, no initial period for the first application is given. Moreover, section 48, C.P.C. Does not provide for any period of limitation for previous application and it only refers to outside period of limitation which is 6 years. Otherwise an application for execution of a decree is to be governed by Limitation Act, 1908. Article 181 of the Limitation Act, 1908 being the residuary Article it governs all such applications which do not fall within the ambit of Article 183. In the instant case the pre-emption suit was decreed in favour of the respondent by the learned Civil Judge, Mansehra on 27-4-1981 and against the said judgment and decree the defendant/petitioner filed appeal in the Court of the learned District Judge, Mansehra which was dismissed on 18-10-1981. Thereafter, a revision petition was filed in this Court by Syed Anwar Shah which was also dismissed on 18-114986. As no stay order was issued during the pendency of the revision petition but before the first appellate Court stay order was issued, therefore, the respondent-plaintiff was to file an application within a period of three years as provided under Article 181 of the Limitation Act from the date when the appeal of the petitioner- defendant was dismissed by the learend District Judge, Mansehra, on 18-10-1981. The record shows that the execution application was filed in the Court of learned Civil Judge on 5-1-1987 which is beyond the period of limitation of 3 years and is time-barred.
6. For the sake of reference I rely on a judgment from Karachi Bench reported as 1987 CLC 2185, which reads as:-- "There appeared to be no contest on the point that before Article 182 was omitted from the Limitation Act, by the Law Reforms Ordinance, 1972, applications for execution of a decree or order passed by any Civil Court other than a High Court etc. Were generally governed by Article 182 of the Limitation Act. The period of limitation provided by this Article was three years which was to be reckoned from the time as provided in column 3 thereof in the Schedule to Limitation Act. Section 48 of the C.P.C. As it originally stood then provided for a period of twelve years within which a fresh application for execution of a decree could be presented before the Court. Besides these provisions there was Article 183 of the Limitation Act which provided for a period of twelve years for execution of judgments, decrees or orders passed by the High Court etc. ' However, we are not concerned with Article 183 at present. Be that as it may, a number of changes was introduced by the Law Reforms Ordinance, 1972 as Article 182 was omitted from the Limitation Act and the period of twelve years provided by Article 183 for execution of judgments, decrees or orders of a High Court, etc. Was reduced to six years. Changes were also introduced in section 48 of the C.P.C. And the period of limitation therein was reduced to six years.
' The question which arises for determination now is, whether an application for execution of a decree passed by the Civil Court which was originally governed by Article 182 of the Limitation Act is now to be governed by Article 181 which is the residuary Article of only section 48 of the C.P.C. Article 181 provided for a period of limitation of three years for applications for which no period of limitation is provided elsewhere in the Schedule or by section 48 of the Code of Civil Procedure, 1908. The time from which this period would begin to run, according to column 3 of the schedule, is to be reckoned from the date when the right to apply accrues.
' A bare-reading of subsection (1) of section 48 shows that where an application to execute a decree has been made, no order for the execution of the same decree can be made upon a fresh application presented after the expiration of six years from the date, as indicated by the section.
Subsection (1) of section 48, therefore, clearly indicates that it envisages more than one application and further bars a fresh application made after the expiration of a period of six years.
Furthermore, barring decree for grant of injunction it appears that all other decrees are to be governed by section 48. Besides that the section provides for a period of limitation for a fresh application which may be filed for execution of a decree but it does not provide for a period of limitation for any previous application in this behalf. Article 181 which is a residuary Article relates to applications for which no period is elsewhere prescribed in the schedule to the aforesaid Act.
Reading together of all these provisions, therefore, indicates that after deletion of Article 182 from the Limitation Act, there is no other provision in the Limitation Act specifically providing for a period of six years for making a fresh application for execution of a decree but the scope of the section appears to be limited as it does not provide for any period of limitation for any previous application. Consequently it appears that all such applications for execution of a decree which do not fall within the purview of Art. 183, are to be governed by the residuary Article 181.
' There are precedents on the point which may also be referred to with great advantage. In Yeshwant Deorao v. Walchand Ramchand (AIR 1951 SC 16), the Supreme Court of India while referring to Articles 181 and 182 of the Limitation Act and section 48 of the C.P.C. Observed that although these provisions are to be read together but they are independent or parallel provisions, different in their scope and object. In Govindan v. Demodaran and others (AIR 1952 Tr.C. 269), it was held that the application of section 48, C.P.C. Is not attracted to a case where there has been no previous application for execution of a decree. In Ram Ranbijaya Parasad Singh v. Kesho Prasad Sing (AIR 1938 Patna 401) it was held that section 48 C.P.C. Provides a maximum period during which the application for execution could be taken out but the period from which limitation would run should be the period provided by the Limitation Act. In Pakistan Industrial Development Corporation, Karachi v. Aziz Qureshi 1979 CLC 16, it was held by a learned Single Judge of this Court that after omission of Article 182 from the Limitation Act by the Law Reforms Ordinance, 1972, an application for execution of a decree passed by a Civil Court other than a High Court etc. Is now to be governed by the residuary Article 181 of the Limitation Act. It was further observed in that case that section 48 of the Civil Procedure Code only provides for an application for execution of a decree could be filed. Reference may also be made to the Law of Limitation by K.J. Rustumji (Fifth Edition) where at page 1653 the author comments:-- `Article 182 is not exhaustive of applications for execution. So, if such application does not, from whatever cause, fall within Article 182, it would be governed by the residuary Article 181. The true criterion is to determine whether any of the seven starting points specified in column third of Article 182, is applicable to a particular application for execution, if none of them is (under the circumstances) applicable, in such a case, the appropriate Article to apply is 181.'
' The consensus of these authorities clearly is that section 48 of the C.P.C. Only refers to the outside period of limitation but otherwise an application for execution of a decree is to be governed by the provisions of the Limitation Act. Article 181 being the residuary Article, therefore, governs all such applications which do not fall within the ambit of Article 183. The argument of Mr. J.H. Rahimtoola that such applications are to be governed by section 48 of the C.P.C. Appears to be without substance. In fact section 48, C.P.C. Does not provide for any period of limitation within which the decree-holder must first apply for execution of a decree."
7. The judgment cited by the learned counsel for the respondent reported as 1988 CLC 30 is not applicable in the instant case because section 48 of the Civil Procedure Code provides for outside period of 6 years but does not provide when the first application for execution is to be made. In other words it covers the cases where successive applications are made within the period of 6 years but as it has not been provided in this section that when the first application will be filed, therefore, the residuary Article 181 of the Limitation Act will be attracted. In this judgment reliance is placed on 1986 SCMR 321. In this case the respondent obtained a money decree on 24th of September, 1969 from the Court of Civil Judge. As there was no appeal against it, therefore, the first execution application was filed on 12-5-1972 which was dismissed on 16-9-1976. The second application for execution was filed on 19-11-1976 but that too was dismissed on 20-7-1977. The third application was filed on 25-9-1977 which was dismissed on 21-5-1978 and than the fourth application was filed on 25-6-1981 which was objected by other side as according to them 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 within the passing of the decree. It was observed as follows:-- "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."
It may be noted that in the Supreme Court judgment the first application was filed within a period of three years.
8. As observed in the Peshawar High Court judgment of 1988 and in the Supreme Court judgment of 1986 page 321 successive applications were filed, therefore, section 48, C.P.C. Was made applicable. The judgment of this Court reported as 1988 CLC 30 on which reliance was placed by the learned counsel for the respondent is not applicable in this case because section 48, C.P.C.
Does not provide the period for the first application of the execution but it only provides the outside period of limitation which is now six years after the amendment, therefore, with all humility I am not in agreement with the proposition laid down in this judgment.
9. The net result is that Article 181 of the Limitation Act will be applicable in this case which provides a period of three years for making first application for execution and not section 48, C.P.C. In the present case as the execution application was filed by the respondent on 5-1-1987 which was beyond the period of limitation when the days are counted from 18-10-1981 when the learned District Judge Mansehra, dismissed the appeal and during the pendency of the appeal a status quo order was passed. In view of Article 181 of the Limitation Act which provides that an application for execution is to be made within three years when the right accrues to a party, therefore, both the lower Courts wrongly held that the execution application was not barred by time.
10. While accepting the revision petition I set aside the orders of both the lower Courts and hold the execution application pending in the Court of Civil Judge, Mansehra as barred by time and the warrant for possession issued by the learned executing Court is cancelled. Parties are left to bear their own costs.