PLJ 2023 Peshawar 49
[D.I. Khan Bench]
Present: Muhammad Faheem Wali, J.
RABNAWAZ--Petitioner
versus
Mst. SABU BIBI and others--Petitioners
C.R. No. 224-D of 2015 with CM No. 272-D of 2015,
decided on 21.9.2022.
Arbitration Act, 1940 (X of 194)--
----S. 31--Limitation Act, (IX of 1908), Art. 181 & 183--Suit for making arbitration decision as rule of Court--Decree--Decree was upheld upto Supreme Court--Application for execution of decree--Filing of objection petition--Dismissed--Concurrent findings--Doctrine of merger--Doctrine of constructive res-judicata--Challenge to--It is well-settled that Limitation Act and Civil Procedure Code are to be read together, because both are statutes relating to procedure and they are in Pari Materia and, to be considered and construed together as one system explanatory of each other--Petitioner assailed judgment of this Court in Civil Petition before august Supreme Court and same stood dismissed where final decision has been made by worthy Supreme Court, limitation for filing of execution petition shall be reckoned by dint of Article 183 of Limitation Act, 1908, which provides six-years limitation for filing of execution petition from any order of Supreme Court--Petitioner invoked jurisdiction of august Supreme Court within contemplation of Article 185(3) of Constitution leave was declined to him thus provisions of Article 183 of Limitation Act, will operate to provide limitation of six years to respondents, from date of order of worthy Supreme Court, to file petition for execution of decree--Plea of limitation as contended in present objection petition, was not agitated in previous petition of like nature-- Present objection petition is hit by doctrine of constructive res-judicata--Petitioner has failed to point out any illegality or infirmity committed by Trial Court as well as Appellate Court while passing impugned judgments, which do not call for any interference by this Court--Consequently, concurrent finding passed by both Courts below are maintained. [Pp. 52, 54 & 55] A, F, G, H & I
1997 SCMR 1796, PLD 1990 SC 778 and 2007 SCMR 1929,
1996 SCMR 759.
Limitation Act, 1908 (IX of 1908)--
----S. 15--Limitation--Section 15 of Limitation Act has been expressly made applicable to an application for execution of a decree and it controls Section 48 of Code of Civil Procedure and Section 48 prescribes a period of limitation of six years. [P. 52] B
AIR 1939 All. 403 and AIR 1943 Bom 164 ref.
Civil Procedure Code, 1908 (V of 1908)--
----S. 2(2)--Decree--A decree is defined in Section 2(2) CPC, 1908 to mean formal expression of an adjudication which, so far as regards Court expressing it, conclusively determines rights of parties with regard to all or any of matters in controversy in suit and may be either preliminary or final. [Pp. 53 & 54] C
Doctrine of merger--
----When a higher forum entertains an appeal or revision and passes an order on merit, doctrine of merger would apply--The doctrine of merger does not make a distinction between an order of reversal, modification or an order of confirmation passed by appellate and revisional Courts. [P. 54] D & E
1992 SCMR 241 ref.
Haji Muhammad Shakeel Advocate for Petitioner.
Mr. Muhammad Sajid Shahzad Advocate for Respondents.
Date of hearing: 21.9.2022.
Judgment
The petitioner, aggrieved of the concurrent findings of the Courts below whereby his objection petition and then appeal met with the fate of dismissal vide order dated 08.06.2015 of learned Civil Judge-I Paharpur and 12.11.2015 of learned Additional District Judge Paharpur, has preferred this revision petition under Section 115 of the Code of Civil Procedure 1908 (Act-V 1908).
2. Before adverting to the merits of instant petition, it would be appropriate to briefly refer the facts of the case. Respondents filed a suit for making the arbitration decision as rule of the Court, stood decreed by the learned trial Court, vide Judgment & Decree dated 12.01.2010, which decree remained consistently upheld up-to august Supreme Court of Pakistan; and thereafter, they filed a petition for the execution of decree on 09.04.2014 which was objected upon by the petitioner (then judgment debtor), on the ground, that the same was barred by limitation, being filed beyond period of three years, from the date of decree by the trial Court. Objection petition was replied by respondents and having heard the parties, the same was dismissed vide order dated 08.06.2015 by the learned Civil Judge-I Paharpur, D.I.Khan, Petitioner discontented with the order dated 08.06.2015, preferred an appeal before the learned Additional District Judge Paharpur, D.I.Khan, however, the same too was dismissed vide order dated 12.11.2015; hence, the petitioner/judgment debtor has preferred the instant petition against concurrent findings of the Courts below as to dismissal of his objection petition.
3. Arguments of the learned counsel for parties heard and record gone through with their valuable assistance but for the sake of brevity, without reproducing the arguments of the counsels, same will be adequately dealt with at appropriate stages in this judgment.
4. There can be no denial of the fact that initially the decree was passed by the learned Civil Judge Paharpur vide order dated 12.01.2010; however, the said decree was assailed in the appeal which was decided vide Judgment & Decree dated 03.10.2011. Thereafter petitioner preferred a Civil Revision No. 556/2011 before this Court, which too was dismissed vide Judgment dated 06.12.2013, and finally, petitioner approached the worthy Apex Court through a Civil Petition No. 44 of 2014, which too met with the fate of dismissal vide Judgment dated 11.03.2014 and thereby leave was declined to the petitioner. The present execution petition, for the first time, was preferred by decree holders i.e. respondents herein, on 09.04.2014, which has been objected upon by petitioner/judgment debtor being time barred, owing the date of decree dated 12.01.2010 passed by the learned Court of trial.
5. Now, the only question raised by the learned counsel for the petitioner in this petition is that the execution petition instituted on 09.04.2014 is barred by limitation inasmuch as the same was not filed within three years, from the date of the judgment of the Trial Court i.e. dated 12.01.2010. The contention of petitioner is that the execution petition ought to have been filed within three years from the date of the judgment of the Trial Court, without waiting for the decision of the Appellate Court or the Revisory Court or the Apex Court. He has also submitted that there is no interim order granted by all such Courts, therefore, there was no hurdle for the petitioner to file the execution petition within the prescribed period of limitation after the judgment of the Trial Court. As against this, learned counsel for respondents was of the view that, after omission of Article 182 of the Limitation Act, 1908, Article 181 of Limitation Act cannot be made applicable to the execution petitions and therefore, Section 48 of the Code of Civil Procedure is applicable which provides six years limitation for filing of execution petition.
6. It is well-settled that the Limitation Act and the Civil Procedure Code are to be read together, because both are statutes relating to procedure and they are in Pari Materia and, therefore, to be considered and construed together as one system explanatory of each other (Tribeni Prasad v. Ram Asray Prasad, AIR 1931 Pat 241). Section 15 of the Limitation Act has been expressly made applicable to an application for the execution of a decree and it controls Section 48 of the Code of Civil Procedure and Section 48 prescribes a period of limitation of six years. (Durag Pal Singh vs. Pancham Singh, AIR 1939 All403 and Firm Ramgopal Bhutada vs. Sidram Aunayya, AIR 1943 Bom 164). That is why Section 48 of the Code is referred to in Articles 181 of the Limitation Act. Article 181 refers to applications for which no period of limitation is provided elsewhere in the schedule to the Limitation Act or by Section 48 of the Civil Procedure Code of 1908. Thus, the period during which the decree of trial Court remained suspended through any injunctive order, must be excluded in computing the period of limitation under Section 48 of the CPC.
7. As regard the contention of learned counsel for respondents that limitation for filing of execution petition is only covered by Section 48 CPC, suffice it to say that the same has amply been answered by the worthy Supreme Court of Pakistan in the case of “Mehboob Khan vs. Hassan Durrani” (PLD 1990 Supreme Court 778) where in the Honourable Supreme Court held that:
“The position that emerges from the above discussion is that, as already stated, the first application for execution of a decree would be governed by the residuary Article 181 and the rest of the applications made, thereafter, will be governed by the six years’ time limit prescribed by Section 48. Although the original purpose underlying section 48, read along with Articles 181 and 182 of the Limitation Act, before the amendment of the law was to provide 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 would be to provide limitation for subsequent execution applications 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 provide by section 48, CPC. In other words once an application for execution is made within time so prescribed, any number of applications for execution can be presented within the six years period from the date of decree. This construction, in my opinion is the only construction that can be placed on the consequent legal position arising out of the amendments made by the omission of Article 182 and substitution of six years period in section 48 CPC. Otherwise the provisions for repeated applications every three years or taking steps in aid of execution provided for in Article 182 having disappeared section 48 would be become redundant and ineffective.”
8. This view was reiterated in case of “House Building Finance Corporation of Pakistan vs. Rana Muhammad Iqbal through L.Rs” (2007 SCMR 1929). Further guidance in this regard may also be sought from the reported case titled “National Bank of Pakistan V. Mian Aziz-ud-din and 7 others” (1996 SCMR 759), wherein it was held:
“It was consequently held that the first application for execution of a decree would be governed by residuary Article 181 of the Limitation Act and rest of the applications made, thereafter would be governed by the six years period of limitation prescribed by section 48 CPC. As would appear from the above observations, the expression ‘‘fresh application “ occurring in section 48 CPC was also interpreted as not including the first execution application but any subsequent application, after the first application, that was presented before the Court. It, therefore, clearly follows that if no application for execution of a decree was made within the period of three years prescribed by Article 181, any application made thereafter would be barred under the said Article and no benefit under Section 48 CPC can be availed by the applicant in such a case. It is only after the first application is made within the period prescribed by Article 181 of the Limitation Act, that subsequent applications can be filed within the period provided by Section 48 CPC. Consequently, the view taken by the High Court and the Special Court that the execution application filed by the petitioners beyond the period of three years was time barred, is not open to exception”.
9. In this view of the matter there remains no cavil with the proposition that limitation for the filing of first execution petition is governed by Article 181 of the Limitation Act, 1908, and not by the Section 48 of CPC. It is, however, not in dispute that the execution petition has been filed within time from the date of the judgment of the High Court. The High Court dismissed the revision petition on 06.12.2013. The execution petition was filed 09.04.2014. A decree is defined in Section 2(2) CPC, 1908 to mean the formal expression of an adjudication which, so far as regards the Court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit and may be either preliminary or final. A decree within the meaning of Section 2(2) of the CPC would be enforceable irrespective of the fact whether it is passed by the Trial Court, the Appellate Court, or the Revisional Court. When appeal and revision are prescribed under a statute and the appellate & revisional forums are invoked and entertained, for all intents and purposes, the lis continues. When a higher forum entertains an appeal or revision and passes an order on merit, the doctrine of merger would apply. The doctrine of merger is based on the principles of the propriety in the hierarchy of the justice delivery system. The doctrine of merger does not make a distinction between an order of reversal, modification or an order of confirmation passed by the appellate and revisional Courts. The said doctrine postulates that there cannot be more than one operative decrees governing the same subject matter at a given point of time. Guidance pertaining to the doctrine of merger has been derived from the reported case titled “Maulvi Abdul Qayyum vs. Syed Ali Asghar Shah and 5 others” (1992 SCMR 241), wherein the august Court was pleased to observe:
“9. These judicial announcements leave no room for doubt that for the purpose of execution the. rule of merger equally applies to the decree passed in exercise of revisional jurisdiction. This issue may also be examined from another angle. Take the case of a suit, which is dismissed by the trial Court and with this dismissal the First Appellate Court does not interfere, but it is decreed by the revisional Court. There should be no doubt that the decree of the Court of revision can well be executed.”
10. It is also very important to note that in the instant case, petitioner assailed the judgment of this Court in Civil Petition No. 44 of 2014 before august Supreme Court of Pakistan and the same stood dismissed vide Judgment dated 11.03.2014. In such an eventuality, where final decision has been made by the worthy Supreme Court, the limitation for filing of execution petition shall be reckoned by dint of Article 183 of the Limitation Act, 1908, which provides six-years limitation for filing of execution petition from any order of the Supreme Court.
11. The nutshell of above discussion is that, limitation for filing of first petition for execution of decree is to be governed under Article 181 of the Limitation Act, 1908, coupled with the doctrine of merger, if any of the parties invoked the appellate or revisional jurisdiction under the CPC. Whereas, in the instant case, the petitioner invoked the jurisdiction of august Supreme Court within the contemplation of Article 185(3) of the Constitution of Pakistan,
however, leave was declined to him vide Judgment dated 11.03.2014, thus provisions of Article 183 of the Limitation Act, 1908, will operate to provide limitation of six years to respondents, from the date of order of worthy Supreme Court, to file petition for the execution of decree.
12. Apart from the above, admittedly, prior to the instant objection petition, the petitioners had preferred another objection petition which was dismissed vide order dated 28.01.2015 and that order was upheld by the appellate Court vide Judgment dated 11.02.02015; however, the plea of limitation as contended in the present objection petition, was not agitated in the previous petition of the like nature. Hence, the present objection petition is hit by the doctrine of constructive res-judicata. In the case of “Ms. Shahzad Bibi and another vs. Gulzar Khan” (1997 SCMR 1796) it was held by the worthy Apex Court:
“the principle that a party is not to be vexed out for the same course is acknowledged in section 10 and 11 of the code of Civil procedure and even where section 11 does not in term apply, the general principle of Res Judicata have always been invoked by Courts of Law to achieve finality in litigation. An issue decided in one way at an earlier stage is not allowed to be recanvassed at a subsequent stage.”
13. Considering the above facts and circumstances, petitioner has failed to point out any illegality or infirmity committed by the learned Trial Court as well as learned Appellate Court while passing impugned judgments, which do not call for any interference by this Court. Consequently, concurrent finding passed by both the Courts below are maintained and instant Civil Revision stand dismissed with no order as to cost.
(Y.A.) Civil revision dismissed
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