' The respondent/plaintiffs/decree-holders entered into an agreement with the petitioner/defendants on 13-9-1963 for exploitation of forest in the Black Mountains situated within the Forest Circle Abbottabad. Due to violations of terms of said agreement, the same was cancelled/rescinded on 12-6-1999 by the Conservator of Forest, Abbottabad under clause 25 of the said agreement whereupon a civil suit was filed by the Contractor-Company (plaintiff/decree- holder) on 28-2-1973 in the Court of Civil Judge, Lahore. Ultimately a decree was passed in favour of respondents/plaintiffs on 2-7-1979. Feeling aggrieved by the said judgment/decree, dated 2-7- 1979 the judgment-debtor filed Appeal No,77 of 1979 before Additional District Judge, Lahore. During the pendency of the said appeal the parties compromised the matter and as per terms of compromise a consent decree was passed on 8-3-1980 by the learned Additional District Judge, Lahore. The respondent/decree-holders filed execution petition is the Court of learned Civil Judge, Lahore on 1-9-1980 which was kept pending. It is worth mentioning that the petitioners/judgment- debtors had challenged the consent decree through Writ Petition No,425 of 1984 before Peshawar High Court and the execution petitions were stayed by this Court while passing an order in C.M.
No,467 of 1984 on 28-10-1984. The said writ petition (425 of 1984), however, was dismissed on 9-4- 1989. The petitioners filed C.P.S.L.A. No,166/P of 1989 before August Supreme Court of Pakistan against the orders, dated 9-4-1989 passed by this Court. The said C.P.S.L.A. Was, however, dismissed by August Supreme Court of Pakistan vide order, dated 5-7-1989. It was after the dismissal of the C.P.S.L.A. By August Supreme Court of Pakistan that the decree-holders submitted an application for revival of impugned execution petition which had been kept pending and stayed by the order of this Court. Another application was filed by the decree-holders for transfer of the execution petition to the Court of learned Senior Civil Judge, Mansehra. The learned Civil Judge Lahore/Executing Court, transferred the execution petition vide order, dated 31-7-1995 to the Court of Senior Civil Judge, Mansehra for its execution. The judgment-debtors filed objection petitions on 11-4-1996 before learned Senior Civil Judge, Mansehra but the same was dismissed vide order, dated 27-6-1996. The judgment-debtors then filed Appeal No,24/14 in the Court of learned District Judge, Mansehra but the same was also dismissed vide order, dated 8-8-1996. The petitioners/judgment-debtors have now tiled civil petition in hand challenging the judgments/orders, dated 27-6-1996 and 8-8-1996 passed by learned Senior Civil Judge and Additional District Judge, Mansehra respectively.
2. Qazi Muhammad Ghazanfar the learned A.A.-G. Argued that the execution application filed by the decree-holders was hopelessly time-barred and same at the first instance should not have been entertained by the learned lower Court and the same deserved dismissed on the ground of limitation alone.
3. On the other hand, Mr. Saleh Mehmood Awan, Advocate, argued that the consent decree was admittedly passed on 8-3-1980 and the decree-holders filed execution petition on 1-9-1980, i,e,, within the limitation period prescribed by law. If the same was kept pending by the Executing Court the decree-holder cannot be blamed and penalized for the act of the Court. Moreover, this Court (High Court) while passing order in C.M. No,457 of 1987 in Writ Petition No,425 of 1984 on 28-10-1984 had stayed the execution petition where after, the said writ petition was dismissed on 9-4-1989 and the judgment-debtors in order to deprive the decree-holders of the fruits of the decree had filed C.P.S.L.A. No,166/P of 1989 before August Supreme Court of Pakistan which too, was dismissed vide order, dated 5-7-1989. The judgment-debtors in order to further stop the execution proceedings filed frivolous objection petition which was dismissed on 27-6-1996 and their appeal, too, has been dismissed by the learned Additional District Judge, Mansehra vide order, dated 8-8-1996. The revision petition in hand has been filed to deprive the decree-holders of the benefits/fruits of the decree passed in their favour with the consent of the judgment-debtors.
4. I have heard the learned counsel for the parties and perused the record.
5. It is an admitted position that a consent decree was passed on 8-3-1980 by learned Additional District Judge, Lahore and the decree-holders as per record filed execution petition before the Executing Court on 1-9-1980 which was kept pending by the learned Executing Court at Lahore.
Thereafter, vide order, dated 28-10-1984 passed by this Court the execution petition was stayed. It was after. The dismissal of C.P.S.L.A. Vide order, dated 5-7-1989 filed by the judgment-debtors, the decree-holders filed an application on 10-7-1995 for restoration of their execution petition filed on 1-9-1980. The application, dated 10-7-1995 was not a fresh application. The word 'fresh' has been defined in Oxford English Dictionary Vol. IV, means, inter alia, "new" "recent" "newly made" first application for execution of a decree can be filed within a period of three years from the passage of the decree and the same would be governed by the residuary Article 181 of the Limitation Act. On the plain language of section 48, C.P.C. The object underlined that section was to provide an outer limit of time and prohibit the making of an order for execution of the decree on a fresh application presented after expiration of 6 years from the date of decree. The question whether or not an execution proceedings has been finally disposed of so as to be incapable of revival or continued, is the question of fact which had to be determined having regard to facts and circumstances of a particular case. In the case in hand the first application for execution was filed within the limitation period, i,e,, three years. This execution petition, as mentioned above, was kept pending by the Executing Court and thereafter, was stayed by a Division Bench of this Court vide its order, dated 28-10-1984. The said execution petition was not finally decided by the Executing Court. The execution application must be deemed to be pending so long as no final order disposing of it judicially has been passed thereon. The subsequent application in such a case for execution will be deemed to be one merely for the continuation of the original proceedings. On the other hand, where the final judicial order terminating the proceedings has been passed on the application it cannot be revived and subsequent application for execution will be regarded as fresh application and not one for revival and continuation of original proceedings. As mentioned above the original/first application filed by a decree-holder was not decided finally through any judicial order.
The application moved by the decree-holder on 10-7-1995 for its revival, therefore, cannot be termed as fresh application as held in Venlappa and others v. Lakshmikant Rao AIR 1956 Hyd. 7:-- "It would, therefore, follow that section 48 would be a bar where the execution application is a fresh application and not one in continuation of or by way of revival of a previous application.
' It should be noted that the words ' fresh application' have been substituted for the words subsequent application according to the old section. Therefore, what is contemplated under this section by the words ' fresh application' is a substantive merely ancillary or incidental to a previous application, that is to say if the decree-holder seeks to set the Court into motion to take further proceedings in respect of an application already pending or where the application has been recorded or where the execution proceedings have been suspended by reasons of appeal or other proceedings, it would not be regarded as a fresh application."
' In another case Muhammad Umar Khan v. Muqarab Khan and another PLD 1976 Pesh. 43 it was held:-- "At this stage I should like to refer to the order of the Executing Court, dated 5-10-1967 which has already been quoted in extenso. This is quite clear that the proceedings were not consigned to the record-room at the instance of the decree-holder. One fails to understand how could a final order be at all passerby the Executing Court when the Supreme Court of Pakistan had ordered that the delivery of the possession was to be stayed until the hearing of the petition. It would follow that the proceedings were consigned to the record-room without making any final order and such being the case could be revived at any time, the Court was satisfied that the impediment which stood in the way of the execution no longer existed."
' Likewise in another case Yar Muhammad Khan and others v. Amrumal Khushadar and others AIR
(33) 1946 Sindh 32 it was held:-- "Test indicated to decide whether execution application is finally disposed of and whether subsequent application is a fresh application--Order striking off execution petition with costs to judgment-debtors held must be taken to have been passed by inadvertance-Execution application held not a fresh application but one for revival of previous application."
6. The argument of the learned counsel for the petitioners that application filed on 10-7-1995 by the decree-holders was time-barred has no force. The order of the Executing Court shows that the execution petition was kept pending vide order 9-3-1985 by the Executing Court till the decision of the Writ Petition No,425 of 1984 which was ultimately decided on 9-4-1989. Thereafter, as mentioned above, the judgment-debtors filed C.P.S.L.A. Before August Supreme Court of Pakistan which too was dismissed. As already stated, the first application for execution of a decree would be governed by the residuary Article 181 and the rest of applications made thereafter will be governed by 6 years time limit prescribed by section 48, C.P.C. Although the original purpose underlined section 48 read with Articles 181 and 182 of the Limitation Act, before the amendment of the law provides maximum limit of time for execution of a decree. But in the changed position as a result of Law Reforms Ordinance the only effect of section 48, C.P.C. Would be to provide limitation for subsequent execution application 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 the 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, any number of applications for the execution can be presented within 6 years period from the date of the decree. In the case in hand, as discussed in detail in the above paragraphs decree was passed on 8-10-1980, the first application for execution was filed on 1-9-1980, i,e, well within the time limit prescribed by Article 181 of the Limitation Act. The subsequent application filed on 10-7-1995 was not a 'fresh' application but was an application for revival/restoration of the earlier application, therefore, the same was not barred by time.
7. The judgment-debtors/petitioners have not allowed the Executing Court to move further in the matter. They have been successful in thwarting the execution process on one pretext or another.
Firstly, the judgment-debtors challenged the decree passed with their consent through writ petition then they filed C.P.S.L.A. Before the August Supreme Court of Pakistan, thereafter they moved an objection petition before the Executing Court at Mansehra, then they filed appeal and now they have filed revision in hand only to delay the process of execution. The learned A.A.-G. Failed to bring any material irregularity, exercise of jurisdiction by Courts below illegally or failing to exercise jurisdiction which vested in them, therefore, there is no substance in the revision petition in hand and the same is dismissed with costs, of Rs,2,000.