TAYYABA BEGUM Versus GUL REHMAN

ORDER

This Execution Application was filed by the Decree‑holder on 11‑2‑1985 for recovery of certain remaining decretal amount after partial satisfaction of decree passed in his favour on 10‑9‑1975 in Suit No.224 of 1969 of original Civil Jurisdiction of this Court. On 1‑12‑1986 an order was passed by my learned brother K . A . Ghani, J. (as he then was) of this Court that the question of Limitation, "if the Execution Application is within time?" would be considered at the time of hearing.

2. By C.M.A. No.127 of 1988 (the second application) the Decree‑Holder made a prayer for payment of remaining decretal amount of Rs.5,000 alongwith costs of Rs.118 against defendant No.3 on 24‑1‑1988. On 3‑4‑1986 the counsel for the parties requested for an adjournment as they wanted to make further research regarding the interpretation of the proviso of Article 183 of the First Schedule of the Limitation Act. Thereafter, the matter is being adjourned till today on one or other ground. In order to appreciate the arguments of the learned counsel it will be useful to reproduce Article 183 of Limitation Act.

"To enforce a judgment Six years When a present right to decree or order of any enforce the judgment,

High Court in the exercise decree order accrues to some of its ordinary original Civil person capable of releasing jurisdiction or an order of the right: the Supreme Court. Provided that when the judgment, decree or order has been revised, or some part of the principal money secured thereby or some interest on such money has been paid, or some acknow legment of the right thereto has been given in writing signed by the person liable to any such principal or interest, or his agent, to the person entitled thereto or his agent, the six years shall be computed from the date of such revival, payment or acknowledgment or the latest of such revivals, payments or acknowledgments, as the case may be." it may be pointed out Gnat prior to passing of Ordinance 12/72 the period of limitation was 12 years, which was thereby reduced to 6 years.

3. It was contended by the counsel for the Decree‑Holder that this suit was filed on 29‑6‑1968 and at that time amendment in Article 183 of limitation Act was not made and the period of Limitation was not reduced from 12 years to 6 years and the same amendment had been made during the pendency of the suit through Ordinance No.12/77. This amendment could not destroy the substantive right of the plaintiff to seek execution of the decree that was passed in' that suit within 12 years from the date of the passing of the decree.

4. In this connection he has relied upon the well‑known case of Saeed Ahmad v. The State P L D 1964 SC 266 and the case reported in 20 Indian Cases 57 and P L D 1962 (W.P.) Kar. 889.

5. As against this the counsel for the judgment‑debtor relied upon the case of Imam Bux v. Alladitta reported in 1988 C L C 597 where Muneer A. Shaikh, J. of Lahore High Court after placing reliance on the case of Mirza Akber Ali v. National Bank of Pakistan 1985 SCMR 190, National Bank of Pakistan v. Syed Ishrat 1984 C L C 1907 and Kassim v. National Bank of Pakistan 1983 C L C 2433 when the decree had become final with the dismissal of the appeal then the period of 12 years provided by section 48, C.P.C. was in existence which was subsequently amended and reduced, held that such reduction could not affect the right of the petitioner to seek the execution of the decree within 12 years from the date when it was passed.

6. I have gone through the rulings cited by both the learned counsel and have given my thoughtful consideration to the contentions raised in this case. In the case of Saeed Ahmad v. The State the question that arose was not about the decree but was about the criminal offence under section 165‑B of P.P.C. It was held in that case that the effect of an amendment declaring a law void is to repeal the law as from the date on which the amendment is declared. Such amendment or repeal does not have retrospective effect.

7. In the case of Mirza Akber Ali it was held that where an execution application was presented within 12 years of the passing of a decree and such decree was passed before amendment of Article 182 of Limitation Act curtailing the period of Limitation, such an application was not tine‑barred if presented within 12 years although it was presented more than 6 years after the passing of the decree which was the period of limitation provided by amendment. Similar view was taken in all the other rulings referred to by both the counsel.

8. It may be pointed out that the real controversy in the present case appears to me to be whether the period of limitation under Article 183 will start from the date of filing of the suit or from the date of passing of the decree. The controversy does not appear to be about the prospective or retrospective effect of the amendment or repeal of Article 183 of the Limitation Act because it is well‑settled in all the above rulings that it will not be retrospective.

Admittedly the decree in this suit was passed on 28‑2‑1977 i.e. after the amendment of Article 183 of the Limitation Act by Ordinance 12/72 and this execution application was filed after more than 6 years of the passing of the decree. Even the part payment was made in 1978, while the execution application was presented on 11th December, 1985 i.e. after more than 6 years of the passing of the final decree as well as of the part‑payment. Since the amendment was made before the passing of the final decree the above rulings would therefore not be of any help to the plaintiff. The right to enforce the decree within 6 years is regulated by Article 183 of Limitation Act and such an application was to be presented prior to amendment within 12 years of and now is to be presented within 6 years of the passing of the final decree. It has got nothing to do with the date of filing of the suit. The substantive right to enforce a decree accrues after the decree is passed and not on filing of the suit. The starting point of limitation will therefore be the date of passing of the decree and not the date of filing of the suit.

9. I am, therefore, satisfied that even where the suit was filed' before the amendment of Article 183 of Limitation Act but the final decree was passed after the said amendment then the period of Limitation will be that which is provided by the amendment and will have to be reckoned from the date of the decree. This execution application is therefore time‑barred and is dismissed as such.

H . B . T . / T‑38 / K Application dismissed.