1. This second appeal by Lall Zaman is directed against the judgment and decree dated 10-10-1993, of the learned District Judge, Ghizar Camp Gilgit, whereby the first appeal filed by the present appellant against the order dated 20-10-1988 of the Executing Court, was dismissed.
2. Briefly stated the facts of the case are that Saidar Ali, respondent herein brought a suit for declaration and possession of certain landed property and house, fully described in the heading o- -- the plaint. The learned Civil Judge, Gupis, who adjudicated upon the case after recording the evidence of the parties passed a decree in favour of plaintiff-respondent herein, vide his judgment-dated 6-11-1982. The defendant-appellant Lall Zaman preferred an appeal against the said judgment before the District Judge, Gilgit where the matter was decided on oath on the Holy Qur'an, on the offer of the defendant Lall Zaman to the plaintiff Safdar Ali to take oath, which he did and the appeal of the defendant Lall Zaman was dismissed by the learned, District Judge, Gilgit, vide his judgment dated 21-8-1983.
3. Safdar Ali then filed an execution petition on 2-11-1983 before the Civil Judge, Gupis which was marked to Tehsildar Yasin for compliance. The Tehsildar, in his turn further marked the same to Naib-Tehsildar for compliance The Naib-Tehsildar submitted his report on 8-4-1984 and in the light of the same, the execution petition was partly accepted by the Executing Court, vide order, dated 15-7-1985. It may be mentioned here that no appeal whatsoever was filed by the decree-holder, before the District Judge against the order-dated 15-7-85. It was after three years, i.e. On 21-5-1988, that the decree-holder Safdar Ali field a second execution petition before the Executing Court, which was accepted on 20-10-1988.
4. Against this order, Lall Zaman, judgment-debtor filed an appeal before the District Judge, Ghizar, but the same was dismissed on 10-10-1993. Hence the present second appeal.
5. It was contended by the learned counsel for the appellant, that the second execution application was clearly barred by time under Article 181 of the Limitation Act, as it was filed after four years 9 months of the first order of the Executing Court, which was passed on 15-7-1985 and as no appeal was filed against it, the same has attained finality in the eyes of law. He referred-to case--law reported in M/s. National Bank of Pakistan v. Mst. Parveen Akhtar PLD 1985 Kar. p.60, Syed Shahzad Hussain and 4 others v. Mst. Hajiran Bibi and 3 others PLD 1990 Lah. p.222 and Mst. Rabia Bibi and others v. Fateh Muhammad through Legal Heirs 1994 CLC p.1151 and argued that the appeal may be accepted and the second execution application may be dismissed being barred by time and meritless.
6. On the other hand, learned counsel for the respondent contended that the decree-holder was well within his legal rights to file a second execution application. He pressed into service section 48 of the Code of Civil Procedure. He also contended that Article 183 of the Limitation Act provides a period of six years for the execution of a decree.
7. I have given my anxious consideration to the arguments advanced by both the learned counsel for the parties and have also gone through the impugned judgment/orders of the lower forums and am of the considered opinion that the arguments advanced by the learned counsel for the appellant have no force while the contention of the learned counsel for the respondent has a clear edge over them. The authorities cited at the bar by learned counsel for the appellant are distinguishable on the period of limitation. Section 48 of the Code of Civil Procedure clearly envisages that decree-holder can move the Court for a number of times for execution of a decree within a period of six years. Also Article 183 of the Limitation Act provides a period of six years to enforce a judgment it, decree or order of any High Court in the exercise of its ordinary original civil jurisdiction, or an order of the Supreme Court. It, therefore, becomes crystal clear that the decree- holder in this case was well within his legal rights to file as many execution applications as he wished within a period of six years. Admittedly the second execution application was filed after four years and nine months of the passing of the original order, therefore, the same was clearly within time.
8. Reverting to the merits of the case, I am clear in my mind that plaintiff-- respondent has clearly given the boundaries of the disputed landed property and house in his plaint in an unambiguous manner and due to a clerical mistake of the petition-writer, the area of the land was given as 12 Kanals where as the Naib-Tehsildar, who went to the spot for the execution of warrant of possession found it to be 36 Kanals. Since entire Ghizar District is unsettled, Revenue Record is not available, as such the disputed land could be more than 12 Kanals. The duty of the Court is to execute a decree in its letter and spirit. In this case, the decree-holder was granted a decree for possession of half of the suit land. I This decree was affirmed in the shape of oath taken by the plaintiff-respondent before the District Judge, Gilgit, therefore, the decree-holder was legally emitted to get the possession of 1/2 share of the total disputed landed property available at the spot, the boundaries of which were given in the heading of the plaint, e.g. On the east river, on the west by road, on north by Sifat Shah and on South by Rehmat. Ali, situate in village Atkash Yasin.
9. No objection whatsoever was taken by the defendant-appellant regarding the description of the disputed property during the course of proceedings of the case, with the result that the decree- holder was entitled to get possession of half of the suit property available on the spot.
10. In view of the legal and factual position, the impugned order of the learned District Judge, Ghizar, is unexceptionable. The second appeal is, therefore, dismissed, but the parties are left to bear their own costs.