The petitioner was allotted Plot No, 23/C measuring 7 Marlas situated in Satellite Town, Bahawalpur by Housing and Physical Planning Department on 28-24977. It is alleged by respondent No, 1 that the petitioner executed an agreement to sell in his favour on 11-6-1981 for a consideration of Rs,20,000 and on the same day the petitioner appointed respondent No, 2 Muhammad Rafique as his general attorney through a registered deed. On 7-5-1986 respondent No, 1 filed a suit for specific performance against the petitioner in the Court of Civil Judge, Bahawalpur in which 23-6- 1986 was fixed for written reply but before the said date i,e, on 1-6-1986 an application was given by respondent No, 1 for early hearing on the ground that the parties had compromised. On the same day i,e, 1-6-1986 the file of the suit was placed before the learned Civil Judge and the statement of respondent No, 2 as general attorney of the petitioner was recorded by the trial Court to the effect that the parties had compromised and the suit be decreed and as such the trial Court vide its judgment and decree dated 1-6-1986 decreed the suit of respondent No, 1 for specific performance of the alleged agreement dated 11-6-1981. On 4-2-1991 the petitioner filed an application under section 12(2), C.P.C. Alleging that the abovementioned decree had been obtained through fraud and misrepresentation and was the result of collusion of respondent No, 1 and respondent No,
2. In written reply an objection was taken that the application was barred by time and after the framing of issues the evidence was recorded and vide its order dated 25-7-1992 Civil Judge, Bahawalpur rejected the petitioner's application under section. 12(2), C.P.C. Thereafter, respondent No, 1 instituted suit for mandatory injunction on 16-1-1993 against the Government of Punjab, Secretary, Housing and Director, Housing for the transfer of the plot in question. On coming to know of the said suit the petitioner applied on 17-3-19)3, before the Civil Judge, Bahawalpur to be impleaded as defendant in the said suit under Order I, rule 10, C.P.C. On 5-5-1993, under the orders of Civil Judge, Bahawalpur, the application was accepted and the petitioners became a party to the suit. On 14- 6-1993, amended plaint was filed by respondent No, 1 impleading the petitioner as defendant and on 27-4-1994, the suit of respondent No, 1 was dismissed as not maintainable, inter alia, on the ground that no separate suit is maintainable to get a decree executed.
2. During the pendency of the suit of respondent No, 1, an application was filed by respondent No, 1 on 22-5-1993 for execution of decree dated 1-6-1986. The petitioner filed objection petition to the said execution petition and raised the issue of limitation. On 2-2-1994, the executing Court/Civil Judge, Bahawalpur, dismissed the execution petition as barred by time. However, the District Judge, Bahawalpur, accepted the appeal of respondent No, 1 vide his judgment and decree dated 8-6-1994 and after setting aside the order of the Executing Court dated 2-2-1994 dismissed the objection petition and held that the judgment and decree dated 1-6-1986 are executable, held the execution petition filed by respondent No, 1 Shahzad Tabasam to be within time and directed the trial Court to execute the judgment and decree within a period of 30 days from 14-6-1994. Hence, this revision petition.
3. The learned District Judge accepted the appeal of respondent No,1/decree-holder and dismissed the objection petition of the petitioner/judgment-debtor on the ground that the period of limitation was six years and the judgment and decree were passed on 1-6-1986 and the judgment-debtor filed a petition under section 12(2), C.P.C. On 14-2-1991 (within six years) which was decided on 25-7-1992 and according to the view of the learned District Judge, the period of limitation stood suspended from 4-2-1991, i,e, the date of institution of the application under section 12(2), C.P.C. And ratio of the judgment of the first appellate Court is that "if this period is excluded from the period of the passing of the judgment and decree dated 1-6-1986 to 22-5-1993 (date of filing of execution petition), then the execution petition was within time". It was held that during the pendency of the application under section 12(2), C.P.C., the decree-holder was unable to file the execution petition and he could simply keep quiet and after dismissal of the said application under section 12(2), C.P.C., the execution application was filed within .a period of six years after excluding the period which was consumed from bringing and disposal of the said petition.
4. I have heard the learned counsel at length and have seen the relevant record, the copies of which are placed on the file of this petition.
5. The learned District Judge has not referred to any law under which the period spent in pursuing the application under section 12(2), C.P.C. Filed by the petitioner is to be excluded, while computing the period of limitation for filing execution application and also no law stopped the decreeholder/respondent No, 1 from filing the execution application within time. The decree was passed in his favour on 1-6-1986 and the execution application was filed on 22-5-1993, i,e, after about 6 years and 11 'months of the passing of the decree in his favour and no plausible explanation has been given for such a delay. Article 183 of Schedule I of Limitation Act (IX) of 1908 lays down a period of six years to enforce a judgment, decree or orders only of High Court in the exercise of its original civil jurisdiction from the time when the right accrues to the decree-holder and after the omission of Article 182 of the said Act by Law Reforms Ordinance XII of 1972, the residual Article 181 governs the execution proceedings because no other Article of the Limitation Act now prescribes a period of limitation for filing an application for the execution of the decree of a Civil Court. Period of limitation under Article 181 is three years. In the instant case, the one and the only application for execution of the A decree was filed by respondent No, 1/decree-holder on 22- 5-1993, approximately, after about seven years of the passing of the decree in his favour on 1-6- 1986 and section 48, C.P.C, as amended by the Law Reforms Ordinance No, XII of 1972, lays down a maximum period of six years for filing of an application to execute a decree and after expiry of which the Court cannot entertain a fresh application for execution. In Mahboob Khan v. Hassan Khan Durani (PLD 1990 -SC 778), the effect of disappearance of Article 182 of Schedule I of Limitation Act and scope of Article 181 of Schedule I of Limitation Act and the effect of amendment of section 48 (as amended by Law Reforms Ordinance) (XII of 1972) has been discussed and scrutinized at length and it has been held that with the disappearance of Article 182, 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 and that the first application for execution of the decree of a Civil Court would be governed by residuary Article 181, Limitation Act, prescribing a period of three years and the rest of the applications made thereafter will be governed by the six years' time limit prescribed by section 48 and it has been laid down that "in the changed position as a result of Law Reforms Ordinance, the only effect of section 48 would be to provide limitation for subsequent 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 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, a number of applications for execution can be presented within the six years period from the date of decree." In the said case, the first application for execution which was submitted beyond the period of limitation, prescribed by Article 181, of three years was held to be out of time.
Similarly, in Syed Muhammad Anwar Shah v. Maulvi Abdul Qayyum (PLD 1990 Peshawar 148), it has been held that the period of limitation for the first application for execution of decree of a Civil Court is governed by Article 181, Limitation Act, 1908, which provides a period of three years for the first time and not by provisions of section 48, Civil Procedure Code, 1908.
6. On the other hand, the learned counsel for respondent No, 1 has tried to argue that the instant case is governed by section 48(2)(a) and has argued that the petitioner/judgment-debtor had by fraud or force prevented the execution of the decree at sometime within six years immediately before the date of the application by filing the application under section 12(2), C.P.C. Against the decree sought to be executed by respondent No,
1. The filing of a petition under section 12(2) cannot amount to fraud or the use of force. Reliance has been placed on M.R.MA.S.P. Ramanathan Chettiar v. Mahalingum Chetti (AIR 1935 Madras 8), which is not at all applicable to the facts of this case. In that case, the commitment of fraud by the judgment-debtor had been established and it was held that the decree-holder need not show that he was prevented from executing the decree by such fraud. Reliance was also placed on Bishwanath Prasad Mahtha and another v. Lachhmi Narain (AIR 1935 Patna 380) in which it was held that to claim the benefit of section 48(2) (a), the decree-holder has to show some action on the part of the judgment-debtor which prevents the decree-holder from taking out execution proceedings and thus allowing time to run against him and it was also held that merely because the judgment-debtor takes the advantage of the procedure allowed by law however obstructive that may be, it cannot be said that he is preventing the decree holder from executing his decree by fraud.
7. From the abovesaid, it is clear that the period of limitation, therefore, of filing the first application for the execution of a decree of a Civil Court is three years as prescribed by Article 181 of Schedule I of Limitation Act (IX) of 1908 and section 48 of Civil Procedure Code provides an outer limitation period for any number of successive applications, to be made within six years I from the date of decree. As such, the application of respondent No, 1 filed on 22-5-1993 for the execution of decree dated 1-6-1986 was hopelessly barred by time and the time spent on the petitioner's application under section 12(2), C.P.C. Cannot be excluded for computing the period of limitation of respondent's application for execution of the decree of trial Court because the initiation of proceedings under section 12(2) of Code of Civil Procedure does not amount to committing of "fraud" or use of "force" within the meaning of section 48 (2) (a) of Code of Civil Procedure. Even otherwise this argument is of no avail to the respondent because the petitioner filed the application under section 12(2), C.P.C. On 4-2-1991 and by then the prescribed limitation period of three years, available to the respondent No, 1 for filing application for the execution of the decree dated 1-6-1986, had already expired.
8. I, therefore, accept this revision petition, set aside the impugned judgment and decree dated 8- 6-1994 of District Judge, Bahawalpur, with the result that the order dated 2-2-1994 of the Civil Judge 1st Class, Bahawalpur, whereby the petitioner's objection petition was accepted, stands restored, with costs throughout.