MUHAMMADA Versus ALLAH BAKHSH

This revision petition arises out‑of execution proceedings initiated by the petitioners for execution of the ex parte decree, dated 12‑9‑1977 passed by the learned Civil Judge, Bhakkar. The said ex parte decree was passed in favour of the petitioners on a suit for perpetual injunction. The respondents filed an application before the Trial Court to set aside the ex parte decree which was dismissed on 24‑2‑1981. They filed an appeal which was dismissed on 6th of December, 1981. During the course of hearing of the appeal, the respondents stated that they did not claim any right in the house or passage covered by the ex parte decree. Through the same order learned District Judge, dismissed the petitioners' application under Order XXI, Rule 32 of the C.P.C., for execution of the decree filed before the Trial Court. Subsequently, the respondents again started causing interference in the passage as well as the petitioners' possession over the houses, whereupon they filed another application for execution of the decree on 27‑1‑1982 which was dismissed vide order 1‑2‑1986. The petitioners preferred an appeal against the said order which was dismissed by the learned Additional District Judge on 3‑12‑1988.

2. The petitioners have filed an application under Order XXI, Rule 32 of the C.P.C., for execution of the decree regarding permanent injunction whereby the respondents were restrained from interfering in the petitioners' possession over their houses and the passage. The decree could be enforced against the defendants by their detention in the civil prison or attachment of the property or by both. However, the Court dismissed it on application of the principle of res judicata vide order, dated 1‑2‑1986. The said order was not appealable under the provisions of Order 43 of the C.P.C. It was not appealable even under section 104 of the C.P.C., because the Trial Court had not entertained the application under Order XXI, Rule 32 of the C.P.C., holding it to be barred by res judicata. Even if the Court had opted to entertain it and ordered arrest or detention of the judgment‑debtor in civil prison the appeal would not be competent under section 104(1)(h) of the C.P.C. The legal position was clear but the petitioners negligently filed an appeal before the learned District Judge which was rightly dismissed by the Court vide order dated 3‑12‑1988. The petitioners' learned counsel has not been able to point out any illegality or material irregularity on the part of the learned Additional District Judge in passing the impugned order. He has, however, prayed that the present petition be treated as a revision petition against order dated 1‑2‑1986 passed by the Court. In that eventuality, the first hurdle in the way of the petitioner would be that of limitation. It is correct that at the relevant time no period of limitation was prescribed for filing a revision petition under section 115 of the C.P.C. but the matter was covered by the residuary Article 181 of the Limitation Act which provides a period of three years for filing an application. The revision petition is also an application and could have been instituted in the High Court within a period of three years under the residuary Article 181. The period negligently spent by the petitioners before the learned Additional District Judge cannot be condoned as held in the cases of Ch. Muhammad Sharif v. Muhammad Ali Khan and others (1975 SCMR 259), Abdul Ghani v. Ghulam Sarwar (PLD 1977 SC 102), Sadiq Mohy‑ud‑Din v. Secretary, District Allotment Committee (1981 SCMR 817), J.H. Joseph etc. v. Settlement Commissioner etc. (1982 SCMR 752, Mirza Muhammad Saeed v. Shahab‑ud‑Din and 8 others (PLD 1983 SC 385) and Mst. Mahmooda Begum etc. v. Major Muhammad Ashiq (1984 SCMR 890). The revision petition was filed in this Court on 10‑5‑1989 and excluding the period of three years, was .delayed by 3 months and 9 days. The mistaken advice of the counsel was treated as sufficient ground for condonation of delay in the case of Nazar Muhammad etc. v. Mst. Shahzada Begum etc. (PLD 1974 SC 22). However, in the said case there was possibility of a bona fide mistake regarding the period of limitation for filing a pauper appeal in the High Court and the learned counsel had submitted his own affidavit and explained the circumstances leading to the error committed by him. In the present case, the petitioners have not cared to file any application for condonation of delay 8 explaining the circumstances which led to the institution of the appeal before an incompetent forum. Therefore, the Court is not in a position to apply the rule laid down in the case of Nazar Muhammad in favour of the petitioners. The question as to what is the petitioners' remedy at this stage, whether they can file another application under Order 21, Rule 32 of the, C.P.C. or a suit for C mandatory injunction on the basis of fresh cause of action or a suit for damages, is left open and may be attended to by the Court concerned as and when fresh proceedings are brought before it.

4. In view of the above discussion, the revision petition is dismissed as being time‑barred with no order as to costs.

A.A./M‑557/L Revision dismissed