By this single judgment I propose to dispose of two Civil Revisions Nos.697/94 and 698/94 as in both the revision petitions a common question of law is involved.
2. The question which requires consideration is with regard to the period of limitation within which the execution petition has to be filed and that what should be the starting point for the period of limitation as prescribed under Article 181 of the Limitation Act, as to whether that would be from the date of the judgment and decree of the trial Court or of the Appellate Court or of the revisional Court or that the Hon'ble Supreme Court. The law contained in section 48 of the Civil Procedure Code and Article 182 of the Limitation Act were dealing with the period of limitation for filing of the execution petition. Article 182 of the Limitation Act was done away with by the Law Reforms Ordinance, 1972. With the deletion of the said Article by the Law Reforms Ordinance, the question arose that which -would be the relevant provisions governing the limitation for filing of the execution petition and which was later on settled by the Hon'ble Supreme Court in a judgment reported in Mahboob Khan v. Hassan Khan Durrani PLD 1990 Supreme Court 778 by prescribing that the period of limitation for any application for execution of a decree filed for the first time would be under Article 181 of the Limitation Act and section 48, C.P.C. Would govern any subsequent application. The law with regard to the starting point for limitation in case of appeal or revision, if filed, would be the date of decision of the Appellate Court or revisional Court was also settled in case reported in Maulvi Abdul Qayyum v. Syed A.I Asghar Shah and 5 others 1992 SCM R 241.
3. Here in the present cases the decree, was passed for possession by the trial Court on 26-6-1988 which was maintained by the Appellate Court with some modification with regard to payment of compensation by the decree-holder to judgment-debtor vide order dated 26-1-1989. Review petition of the respondent was dismissed by the Appellate Court on 16-11-1989. His revision petition before the High Court was dismissed on 27-6-1990 while his petition for special leave to appeal was dismissed on 16-11-1991 by august Supreme Court and the execution petition was filed on 2-4- 1994. Thus, the filing of the execution petition on 2-4-1994 is beyond the period of limitation of three years, if we take the date of decision of the-trig-Court or of the Appellate Court or that of the revisional Court but it is within time if the starting point is considered to be the date of decision of the Supreme Court, that is, 16-11-1991. None of the learned counsel for the parties presented any case-law on the point that the period of limitation for filing an execution petition shall run from the date of decision of the Supreme Court as prescribed under Article 181 of the Limitation Act. By going through the abovementioned two judgments of the Hon'ble Supreme Court and the principle laid down therein, if applied, in the instant case then the execution petition is within time. In this regard the relevant portion of the judgment of the Supreme Court reported in 1992 SCM R 241 at page 246 reads 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."
At page 248 of the aforesaid judgment, their Lordships of the august Supreme Court have further observed:--- "The distinction between the remedy by way of appeal and revision is not unknown. The appeal is the continuation of original proceedings before the higher forum for the purposes of testing the soundness of the decision of the lower Court. On the other hand, the remedy of revision is discretionary and the revisional Court has to proceed under certain limitations in interfering with the judgment and decree of the lower Court, but both on filing the appeal or revision, as the same may be, the decree of the lower Court is put in jeopardy. Indeed the correction of error in the proceedings of the Court below, is common characteristic of both the remedies. The concept of acceptance of appeal is that the lower Court has failed to pass the decree which should have been passed. The same object is achieved when a revision from the decree of the lower Court is accepted. Thus, in a way revisional jurisdiction partakes of appellate jurisdiction."
4. The judgment, decree or order of the High Court is challengeable before the Supreme Court under Article 185 of the Constitution of the Islamic Republic of Pakistan, 1973. Under, clause (2) of the said Article the Supreme Court entertains a direct appeal against the judgment and decree 'of the High Court under various circumstances mentioned therein and under clause (3) an appeal lies to the Supreme Court only if the Supreme Court grants leave to appeal. In any case a judgment and decree or order passed by the High Court can be impugned before the Hon'ble Supreme Court. If that qualifies for filing of an appeal then the same is impugned through an appeal and if not then under clause (3) of Article 185 the same is impugned through a petition for special leave to appeal. After grant of leave by the Hon'ble Supreme Court, both the cases, whether filed through an appeal or through a petition for special leave to appeal, are treated alike. In Noora v. State PLD 1973 Supreme Court 469 it was held that once the Court has come to the conclusion that injustice has been done and has granted leave to appeal, there is no reason as to why an appeal by special leave should be treated differently to an appeal as of right. Both appeals should stand on the same footing and should be determined according to the same principles of administration of justice by the Court. Though a leave to appeal is granted only sparingly and in exceptional cases but once leave is granted then the appeal is treated on the same footing as an appeal itself. The question which can be agitated before the Hon'ble Supreme Court in appeal or a petition for special leave to appeal may be on the point of irregularity committed by the Courts below or on the misreading of evidence which if read correctly the conclusion would have been different, if wrongly applied by the High Court for appreciation of the evidence. On the analogy of the principle laid down in judgment mentioned above that is 1992 SCM R 241 and the paragraph quoted therefrom wherein it was held that in both the appeal and the revision the decree of the lower Court is put in jeopardy and the correction of error in the proceedings of the Courts below is common characteristics of both the remedies and also that in a way revisional jurisdiction partakes of appellate jurisdiction then on the basis of the abovementioned principle it can also be stated that when a party apaches tits Hon'ble Supreme Court by challenging the judgment and decree of the High Court under the Constitutional jurisdiction of the Hon'ble Supreme Court, in this respect, partakes of the revisional jurisdiction of the High Court or in other words the appellate jurisdiction by an Appellate Court and it would be the Court of last instance, .That is, the Supreme Court which passes the decree and only that decree can be executed, irrespective of the fact that the decree of the lower Courts is affirmed, reversed or modified. Thus, the finding of the two Courts below are not open to any interference and they have correctly hold that the execution petition which has been filed within a period of three years from the date of decision given by the Hon'ble Supreme Court was within time.
5. Resultantly these revision petitions are dismissed with no order as to costs.