According to sub section 1 clause (a) of section 48, no order for execution of a decree shall be made upon any fresh application presented after the expiry of six years from the date of the decree sought to be executed. At the same time, clause (b) of section 48 provides that where the decree directs payment of money or the delivery of any property to be made at a certain date or at recurring periods, the limitation would run from the date of default in making the payment or delivery of any property, in respect of which the applicant seeks execution. Thus, if a decree, sought to be executed, is conditional, specifying the date for performance of certain act(s), the period for execution of the same shall be reckoned from the date of default of performance of the act(s), mentioned in the decree, instead of counting from the date of passing of the decree. In other cases, second application shall be filed within the period prescribed by section 48 of the CPC, which period shall be counted from the date of the decree.
In a case where the pre-emption suit is allowed, the decree must be drawn in accordance with the procedure provided by Order 20 Rule 14 of the CPC provision of Order 20 Rule 14 of the CPC are mandatory in nature. The decree for pre-emption is a conditional decree, wherein, the plaintiff/ decree holder has to fulfill two conditions; he has to deposit in Court (i) the purchase-money together with the cost, if any, decreed against him and (ii) the deposit must be made on or before the date fixed by the Court. This provision of the CPC contains a penal consequence of dismissal of the suit, in case the plaintiff/ decree holder fails to make payment of the purchase-money in Court on or before the date fixed in the decree. Once, the plaintiff/ decree holder performs his part of obligation as per the directions contained in the decree, then he automatically becomes owner of the property, as such, he becomes entitled for possession. At the same time, the concerned revenue authorities are bound to implement the decree for the purpose of record of right, without an order from an Executing Court. However, in case the authorities concerned fail to do the needful, then the decree holder can file an application for execution of the decree. In such circumstances, the time for the purpose of limitation would be reckoned from the date of default in performance of obligation by the authorities.
Besides, a pre-emption decree imposes reciprocal obligation on both the sides. Thus, after performance of part of obligation by the decree-holder, it is then the responsibility of the defendant/judgment debtor to deliver possession of the property to the decree holder. In case of failure to deliver possession of the LJV "1¼-LI LI)' O¼-L. LILJ1I LrT '.11 LLLL %..fl '.,'. 111¼- I_ISIS'., flJ I IIIfl11nI5IIflJ¼-'L1_fl1' property, a pre-emption decree can be executed through an application, which shall be made within the period prescribed by Article 181 of the Limitation Act. It is only after the first application is made, the subsequent application can be filed within the period c,ac.frr' QQAni' i-1, ('DC Tins, trnn fnr fln ml oillnQenl rnnf execution application shall be reckoned from the date of delivery of possession, specifically mentioned in the decree sought to be executed. In case, no date for the delivery of possession is mentioned in the decree, the period of limitation would then be counted from the date of default in making delivery of possession of property.
Civil Petition No. 1540 of 2018
Muhammad Arif Chattha & others Versus The learned Addl. District Judge, Gujrariwala & others
0 Comments