1. ' This first appeal was directed against the order dated 13-2-1991 whereby the objection to the execution petition filed by the appellants was dismissed and the execution petition was held to be within time and the petition was fixed for 22nd February, 1991, for further necessary proceedings.
2. Necessary facts briefly stated are that a suit for specific performance filed on 11th January, 1969, was decreed on 20th December,1980, on the basis of consenting written statement of some of the defendants and ex parte as against defendants 8 to 11. The sale price was ordered to be deposited with the Court by 15th January, 1981. Nist. Zubaida Begum defendant filed an application on :23-12- 1980 seeking setting aside of the aforesaid decree and on an application, order staying deposit of the sale price was passed by the learned trial Court on 11-1-1981. The application dated 23-12-1980 was, however, rejected by the learned trial Court vide order dated 8-2-1981. The date of deposit of the sale price was, however, extended up to 10th May, 1981. Defendants 8 to 10 filed F.A.O. 2 of 1981 while Mst. Zubaida Begum defendant 11 filed FA.O. 40 of 1981 in this Court against the decree dated 20-12-1980. This Court vide judgment dated 7-3-1982 set aside the decree dated 20-12-1980 to the extent of defendants 8 to 11 and remanded the suit for decision in accordance with law. These defendants were again proceeded ex parte and ultimately the learned trial Court passed ex parte decree against these defendants on 29th June, 1985. Nizam Din, defendant 1 (after his death now represented by his legal representatives) had already challenged the order dated 8-2-1981 to the extent of extending time for deposit of sale price by filing Civil Revision Petition No, 200 of 1981 in this Court. This revision was, however, dismissed on 16th May, 1987 which order was then assailed in the Supreme Court by filing C.P.S.L.A. And the same was ultimately dismissed by the Supreme Court vide order dated 11th March, 1990. The respondents-decree-holders then submitted execution application on 28th March, 1990, seeking execution of the decree for specific performanee. The appellants-judgment-debtors, submitted objection petition asserting that the execution petition was time-barred and as such cannot be proceeded with. The objection petition was rejected and the execution petition was held to be within time vide impugned order dated 13-2-1991. The learned Executing Court was of the view that as in the instant case the appeal (revision) filed by the judgment-debtor to the High Court against the order dated 8-2-1981 was dismissed on 16-5-1987 and petition for special leave to appeal was dismissed on 11-3-1990 by the Supreme Court; the limitation runs from the date of the final decree dated 11-3-1990, and as such the petition for execution was within time. This led to the filing of the present appeal.
3. ' Learned counsel for the appellants argued that the execution application under Article 181 of the Limitation Act was to be filed within three years of the decree dated 29-6-1985; the pending litigation Had no effect as there was no stay restraining the decree-holders from seeking execution of the decree and that the doctrine of merger being not applicable as the litigation was not in respect of decree dated 20-12-1980 the execution petition filed on 28-3-1990 was clearly barred by time and the finding to the contrary recorded by the learned Executing Court is arbitrary as well as illegal. Learned counsel referred to Hassan Khan Durrani v. Mehboob Khan (1987 CLC 2185) and Mahboob Khan v. Hassan Khan Durrani (PLD 1990 SC 778) wherein the former judgment was affirmed by the Supreme Court. The question which came up for consideration was whether an application for execution of a decree passed by Civil Court which was originally governed by Article 182 of the Limitation Act, 1908, was, after the omission of the said Article and amendments effected in section 48, C.P.C. By the Law Reforms Ordinance, 1972, governed by the residuary Article 181, Limitation Act or by section 48, C.P.C. The answer returned was that the first application for execution of the decree of a Civil Court would be governed by the residuary Article 181, Limitation Act, prescribing a period of three years and since any subsequent or fresh application for execution will be governed by section 48, C.P.C. It would be out of the purview of Article 181. It was further observed that the only effect of section 48, C.P.C. Would be to provide limitation for subsequent execution applications after the first. One. This aspect of the matter is not in dispute. The dispute is with regard to the period during which limitation remained pending since 1981 to 11-3-1990 due to the challenge made to the order dated 8-2-1981 whereby the time for deposit was extended by filing firstly a revision petition in the High Court and then by filing C.P.S.LA. Before the Supreme Court.
4. Learned counsel for the appellants was of the view that the principle of merger would apply only if the decree itself had been challenged in the higher forum by filing appeal/revision against the said decree and that the other litigation commenced challenging the order of extension would not be of any avail especially when order staying execution was not passed at any time during the said litigation. In elaboration of the principle of merger learned counsel for the appellants referred to FA.
5. Khan v. Government of Pakistan (PLD 1964 SC 520), Khalid Malik v. Federation of Pakistan (PLD 1991 Kar. 1) and Maulvi Abdul Qayyum v. Syed Ali Asghar Shah (1992 SCM R 241).
3. Learned counsel for the respondents on the other hand stated that the decree dated 20-12-1980 stood modified by the order dated 8-2-1981. Prior to that there was an order of stay passed on 11-1- 1981 and despite the fact that thereafter there was no specific order restraining execution of the decree yet the revision before the High Court and the appeal before the Supreme Court related to the basic term of the decree and in these circumstances only that decree which was to be ultimately passed was to be executed. The contention in nutshell was that if the proceedings are interlinked with the main decree and execution of the decree is dependent on the result of the said proceedings then execution application can be filed after the final judgment in the said proceedings. He referred to Mirza Muhammad Munawar v. Muhammad Yaqoob (1985 SCM R 212). In this case the plea that the execution petition was time-barred was held to have no force for the reason that the decree was conditional upon decision of the petitioner's revision before the settlement authority which decision acquired finality on rejection of petitioner's petition for leave to appeal before the Supreme Court on 3-12-1976. But at the same time it was observed that it was conceded that the implementation of the revisional order of the Settlement Commissioner had been stayed by the High Court and as such section 15 of the Limitation Act, it was observed would also come into play in computing the period of limitation.
4. In resolving the controversy reference with advantage may be made to the case of Maulvi Abdul Qayyum v. Syed Ali Asghar Shah (1992 SCM R 241). In the precedent the trial Court decreed the suit for possession of the land in favour of the appellant on 27-4-1981. The respondents' first appeal against the judgment and decree of the trial Court was dismissed on 18-10-1981. The revision before the High Court met the same fate vide judgment and decree dated 18-11-1986, and thus the decree of the first appellate Court was affirmed. On 5-1-1987 application for execution under Order XXI, rule 11, C.P.C. Was moved. The judgment-debtor raised the plea that the execution petition was barred by time. This objection was rejected and after appeal/revision the matter came up before the Supreme Court. Leave was granted to consider whether the period of limitation provided by Article 181 of the Limitation Act in the circumstances of the present case would start from 18-10-1981, when the appeal of the respondents confirming the decree of the trial Court was dismissed, or from 18-11- 1986 when the revision filed by the predecessor of the respondents against the same order was dismissed by the High Court. It was observed that as already held in the case of Mahboob Khan v.
6. Hassan Khan (PLD 1990 SC 778), petition for execution of decree is to be made under Article 181, Limitation Act, within three years of the date of accrual of right to apply but the Article is silent as to when such right arises; that both Article 181, Limitation Act and section 48, C.P.C. Are to be read together; the two provisions are independent and parallel provisions with different scopes and objects. Section 48 prescribes the outer limit of time, after expiry whereof fresh application for execution of the decree cannot be entertained. It was also held that application of rule of merger equally applies to the decree passed in exercise of revisional jurisdiction. The pertinent observations made at page 246 of the report for the purpose of the present case read as under:-- "It appears that in holding that the period of limitation for execution of the decree commenced from the date of the decision by the Appellate Court, the rule that the decree of the Court of first instance, merged into the decree of Appellate Court, which alone can be executed, was not present to the mind of the learned Judge. It is to be remembered that till such time, an appeal or revision from a decree is not filed, or such proceedings are pending but no stay order has been issued, such decree remains capable of execution but when the Court of last instance passes the decree only that decree can be executed irrespective of the fact, that the decree of the lower Court is affirmed, reversed or modified."
7. ' It may be recalled that the trial Court had stayed the deposit of the sale price vide order dated 11- 1-1981 and then on 8-2-1981 while dismissing the application for setting aside the ex parte decree extended time for deposit of sale price up to 10-5-1981. The essential term of the decree as such was modified. It was against this modification introduced in the decree that Nizam Din defendant 1 filed Revision Petition No,200-81 in this Court. The decree passed to that extent was thus under challenge and it cannot be denied that had the revision succeeded the decree would have become extinct and non-existent and no question would have arisen for executing such a decree.
8. It is pertinent to add that as observed in the aforenoted precedent it does not make any difference whether the decree of the lower Court has been affirmed, reversed or modified because it is the final decree i,e, decree passed by the Court of last instance which can be executed. In these circumstances the fact that no stay order had been issued is of no consequence. The Supreme Court dismissed the petition for special leave to appeal on 11-3-1990 and execution application filed on 28-3-1990 was as such within time. In this view of the matter the conclusion recorded by the learned trial Court that the execution application was within time is justified in law and merits no interference. This appeal therefore, fails and is dismissed with cost.