1. ' This order will dispose of the application C. M. A. No, 126/75 in this suit and C. M. A. No, 127/75 in Suit No, 210/17, as parties to the two applications are the same and common legal questions arise for decision thereof.
2. ' The facts relevant for the present purpose are that the decree-holder Sh. Mohammad All brought this suit for recovery of money against the judgment-debtor Messrs China Silk House of Lyallpur. An application for attachment before judgment of the property of the defendant was also moved in pursuance whereof on 25-9-67 this Court ordered attachment of the properties of the defendant.
3. Subsequently on 2-10-67 the attachment was ordered to be raised on the furnishing of security for the claim in suit and costs. Defendant furnished security which was accepted by the Court by order dated 5-10-67., The security was furnished by Wajiul Hassan Zaidi, the present surety. The surety bond was duly executed by the surety undertaking to produce and place at the disposal of the Court, whenever required the property (previously under attachment) or the value of the same, and in default the surety bound himself to pay to the Court the amount claimed in suit.
4. ' In the events that happened, the suit came to be decreed in terms of the compromise between the parties to the suit on 11.12-67, whereby the decretal amount was payable by instalments. It seems, after paying some instalments the J. D. Failed to pay further instalments. Tne decree-holder therefore, filed execution application on 11-10-68 for attachment of the immovable property of the surety but this application, was rejected for non compliance of office objection 19-10-61 and the second execution apelication filed on 18-12-68 met with the same fate by order of the Additional Registrar on the same ground on 11-2-1969.
5. ' Thereafter, the present application under 45 read with section 151, C. P. C. For issue of a precept to the Court of District Judge, Jhelum for attachment of the immovable property of the surety was moved on 15.4-1975 The surety has filed objection and has resived the grant of precept on various grounds.
6. ' It is necessary to state some further material facts. On 18.3-1969 the J. D. Applied to the Court for recording full and final satisfaction of the decree on the basis of written receipt purporting to be executed by the D. H. Whereby the remaining balance of the deeretal amount was liquidated on receipt of lump sum amount. This application was contested by the D. H. But pending the enquiry therein, the parties by consent agreed to withdraw the matter from the Court and refer the dispute to arbitration outside the Court. Consequently the application was allowed to be withdrawn on 14- 2-1970.
7. ' It is stated by the learned counsel for the D. H at the bar that the reference was made on the same day and the award was passed on 15 3-74. By this award the J. D.'s plea of satisfaction of the decree in lieu of the alleged payment was rejected and the balance outstanding towards the decretal amount was held payable by the J. D. It is further stated that the award was then filed in this Court and was made the rule of the Court on 11-3-1975.
8. Now the surety contests this application on the following grounds:- (1)The application is barred by limitation.
9. (2)The conduct of the decree-holder in agreeing to a decree providing for payment by instalments, operated to discharge the surety.
10. (3)In any case having regard to the terms of the surety bond the application is premature as the bond is enforceable only on default by the Judgment-debtor.
11. ' On the first ground Mr. Namazi for the surety contended that the present application is governed by Article 181 of the Limitation Act, which is a residuary Article for applications for which no period of limitation is provided elsewhere in the Schedule to the Limitation Act or by section 48 of the C. P. C.
12. The period of limitation provided therein is three years and begins to run from the date woes the right to apply accrues. The counsel submitted that the right to apply for precept accrues to the Decree-Holder from the date of the decree and consequently, the application would be barred by Limitation. I, however, find no substance in the submission inasmuch as the right to apply for the issue of the precept is not an independent right but is a step towards execution. In the very nature of things, therefore as long as an application for execution of a decree is competent under the law, the Decree-Holder will have the right to apply for a precept. An applies ation under section 46 is not for execution, but, as stated earlier, is a step towards the execution. It is clear from the provisions of the C. P. C. That there must be an application for execution in the proper form after an attachment under a precept is affected, and it is only upon such application that execution can issue. It has been held that the Count to which the precept is sent cannot vest itself with jurisdiction to question the validity of th precept. It follows, therefore, that the question ' whether the judgment-debtor whose property is sought to be attached, is liable to be proceeded against in execution of the decree is question which the ourt issuing the precept must decide before granting the precept. In this view of the matter it is apparent that the right to apply for the precept is a continuing right and accrues from time to time as long as the decree remains executable. The upper limit of time for execution of a decree, in the case of money decrees, as prescribed by section 48, C. P. C. Is freer ea 6 years from the date of the decree. Aceordingly it would be anomalous to hold that while the decree is capable of execution, the application for precept should be barred by limitotio after expiry of three years, when the precept is only a step towards the execution. An ancillary proceeding can never be held to be incompetent under the law if the main relief to which such proceeding is ancillary, is held to be competent. I am accordingly, unable to accept the contention that the present application is barred by limitation under Article 181.
13. ' However, the learned counsel alternatively contended that the application is in any case barred by section 48 of the C. P. C. As amended by Law Reforms Ordinance, 1972. The record of this case shows that the office has also raised this objection. Section 48 of the C. P. C. Stipu'ates to fix the outside limit of 6 years for execution of a decree from the date of the decree sought to be executed or where the decree 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. The counsel, therefore, contended that the present application is clearly barred as the period of 6 years has expired since the passing of the decree on 11-12-67 Mr. Ratan Akbar the learned counsel for the Decree-holder in reply to this contention submitted that in the facts and circumstances of this case the bar contained in subsection (s) of section 48 is not applicable in view of subsection (2) thereof which excludes the application of the period in case the Judgment-debtor has by fraud or other wise prevented the execution of the decree at some time within 6 years immediately before the date of the application.
14. ' Now before considering the submission of the learned counsel it is necessary to state the changes brought about in the law of limitation pertaining to the execution of the decrees. Article 181 of the Limitation Act originally provided a period of 3 years for an application for which no period of limitation was provided elsewhere in the Schedule to the Limitation Act or by section 48 of the Code of Civil Procedure and Article 182 provided the limitation for an execution application of a civil Court other than the High Court, of a period of 3 years from the date of the decree and for each successive application period of 3 years from the date of final order passed on a previous application for execution ; so that but for section 48 of Code of Civil Procedure the decree could be kept alive for indefinite period. Article 183 originally prescribed a period of 12 years for enforeement of a judgment or a decree of a High Court from the date when the right to enforce the judgment or a decree accrues. Section 48 of the Civil Procedure Code as stated earlier originally provided the outside period of 12 years for execution of decree from the date of decree. However, by the Lew Reforms Ordinance, 1972 a drastic departure in regard to the period of limitation for execution of decree was made, Under section 48, C. P. C. The period of 12 years was substituted with the period of the 6 years and Article 182 of the Limitatien Act was omitted. In Article 183, in the second column, for the words '12 years', '6 years' were substituted. The effect of these amendments seems to be that a decree of the civil Court other than the High Court cannel be kept alive by successive applications and has to be governed by Article 181 prescribing the period of 3 years. But even if I am wrong, in the present case the Article applicable would be Article 183 prescribing the period of 6 years.
15. ' The question that falls for consideration is the effect of section 48 on the period prescribed under Article 183. Assuming therefore, that the fraud as contemplated in subsection (2) of section 48 has been established, would the decree-holder be entitled to file an execution application beyond the period of limitation prescribed under Article 183. The answer is contained in section 48 itself wherein subsection (2) (b) clearly stipulates that nothing in this section shall be deemed to limit or otherwise affect the operation of the Article 183 of the Limitation Act. The law therefore, expressly exempts the period of Limitation under Article 183 from the operation of the provisions of section 48.
16. ' In Yeshwant v. Wakhand (1) while construing the effect of seetton 48 (2), C. P. C. Upon Articles 181 and 182, Limitation Act the Indian Supreme Court observed as follows:- "In the case of fraud of the judgment-debtor provision is made in section 48 (2) for enlarging the 12 years period prescribed under section 48. For defeating the plea of the bar of limitation under the Limitation Act, in the case of fraud of the judgment-debtor, provision is found in section 18, Limitation Act. If the particular case of fraud set up and proved is not covered by thoe words, there is no protection against the same in the Limitation Act, Read with in that way, the two legislative provisions are neither conflicting nor overlapping ; and they are capable of operating harmoniously, as they deal with different situations and circumstances. The argument advanced on behalf of the appellants that because of fraud he got not merely a fresh starting point for computing the 12 years period prescribed in section 48 (2), C. P. C. But is also entitled to an extension of the time under the Limitation Act must, therefore, fail."
17. ' In the cited ease, the execution application was brought after the expiry
(1) AIR 1951 SC 16 ' of the maximum period of 12 years on a plea of fraud preventing the execu titan of the decree within the meaning of section 48, C. P. C. Which was found to be established on evidence by the Courts below. It was conceded by the learned Judges that in view of this the appellant has escaped the bar of 12 years period and bad a fresh starting point of limitation from the date of the fraud for purposes of section 48, C, P. C. So that the decree-holder had another 12 years within which he could execute his decree. But the question that next arose for tie consideration of the learned Judges was whether the fraud established by the decree-bolder had the effect of extending the period of limitation, in absence of any reliance on section 18 of the Limitation Act. It leas contended before their Lordships that fraud sufficient to constitute a ground for a fresh period of 12 years mar section 48 (2) is quite different from fraud contemplated in section 18, Limitation Act. In this behalf, their Lordships observed as follows:- "It is true that Articles 181 and 182, Limitation Act and section 48, C. P. C. Should be read together. The Articles expressly refer to the section. But they are indepeedent or parallel provisions, different in their scope and object. As held In Kily Anasundaram Fillai v. Vaithi Lingo Vannias, I L Fs 1838 Mad. 611, section 48 (2) extends the 12 years period of closure by a further period of similar duration but the necessity of resort to Article 182 is not thereby obviated. The decrees holder must have been taking steps to keep the decree alive and the only circumstances that could relieve him of this obligation is the existence of fraud under section 18, Limitation Act."
18. ' Upon this view their Lordships finding the facts constituting the fraud insufficient for purposes of section 18, Limitation Act, held the execution to be barred by Limitation.
19. In the light of the abcve I am of the opinion that the decree-holder its B this case cannot succeed in repelling the objection of Limitation by merely pleading fraud under section 48 (2), C. P. C.
20. ' On the factual plane also the mere fact that the judgment-debtor raised a plea of satisfaction of the decree which was ultimrtely referred to arbitration, in my opinion, cannot, be held to be sufficient to constitute fraud within the meaning of section 48 (2), C. P. C. Or sufficient to hold that the decree-holder was prevented from fling execution of the decree against the surety.
21. ' A noeher important aspect of the case is that it is not the decree-holder's case that the surety against whom, he seeks to execute the decree, was in any way responsible or party to the fraud alleged against the judgment-debtor. It would be anomalous to make the surety suffer t'-ai consequences of an act to which be was not a party or privy.
22. Having regard to all these reasons and circumstances the execution of this decree against the surety is barred under Article 183 of the Limitation Act. As observed earlier the precept being an ancillary proceeding the right to seek the aid of Court by issue of precept is accordingly barred by Limitation.
23. ' In the result both applications are dismissed with costs. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.