Pakistan Case LawRASHEED (deceased) Versus MUHAMMAD AZAM KHAN
This civil appeal arose from a High Court judgment in revision that permitted execution proceedings under Section 48 of the Code of Civil Procedure 1908 after the decree-holders' initial execution petition was dismissed as time-barred. The core legal question was whether a decree-holder who fails to file the first execution petition within the three-year period prescribed by Article 181 of the Limitation Act 1908 loses the statutory right to seek execution and can circumvent that bar by filing a subsequent petition under Section 48 of the Code of Civil Procedure 1908. The Supreme Court converted the petition into an appeal and allowed it, setting aside the High Court's judgment. It held that the first execution application is strictly governed by Article 181 of the Limitation Act 1908, requiring institution within three years from the date the right accrues. Section 48 of the Code of Civil Procedure 1908 provides only an outer limit for subsequent execution applications once proceedings are timely initiated, and cannot be invoked to revive a right extinguished by limitation.
- Does a decree-holder who fails to file a first execution petition within three years under Article 181 of the Limitation Act 1908 lose the right to execute the decree?
- Can Section 48 of the Code of Civil Procedure 1908 be invoked to revive an execution right extinguished due to non-filing of the first petition within the period prescribed by Article 181 of the Limitation Act 1908?
- Does Section 48 of the Code of Civil Procedure 1908 apply to a first execution petition or only to subsequent execution petitions?
- Can a fatal limitation defect in a time-barred first execution petition be cured by filing a second execution petition under Section 48 of the Code of Civil Procedure 1908?
ORDER
SHAKEEL AHMAD, J.--- Leave to appeal is sought against the judgment dated 02.08.2024 ( impugned Judgment ), passed by the Peshawar High Court, Peshawar ( High Court ), whereby the Civil Revision Petition brought by the respondents was allowed.
2.The background of the case is that the respondents instituted a suit for declaration in respect of the property, fully detailed in the headnote of the plaint, along with perpetual, mandatory injunction and possession, which, after following all the prescribed procedure, was decreed ex-parte in favour of the respondents vide judgment and decree dated 13.02.2010. Thereafter, for execution of the decree, the respondents filed a petition, which was dismissed on the ground of limitation vide order dated 17.05.2017, which order was upheld by the Appeal Court. However, the Appeal Court provided the respondents an opportunity to file another execution petition under Section 48, C.P.C. The respondents accordingly filed another petition under Section 48, C.P.C., which was also resisted by the petitioners on the question of limitation, and, ultimately, was dismissed by the executing Court vide order dated 10.10.2019. The respondents assailed the said order before the Appeal Court; however, remained unsuccessful. Feeling aggrieved, they preferred a Civil Revision Petition before the High Court, which was allowed through the impugned judgment. Hence, this petition.
3.After hearing the learned counsel for the parties at great length, we are of the view that this petition raises the following short, but very important question of law:
Whether a decree holder who fails to file the first execution petition within the statutory period of three years as required by Article 181 of the Limitation Act, 1908, loses the statutory right to seek execution and consequently cannot file any subsequent petition by invoking the provisions of Section 48 of the C.P.C.
It is by now settled that the right to execute a decree is circumscribed by statutory limitation and must be exercised strictly within the framework provided by the Limitation Act, 1908 ( the Act"). The decree-holder is required to file the first petition for execution of a decree within a period of three years from the date when the right to apply accrues. This is the mandatory requirement. The law is equally settled that Section 48, C.P.C. does not enlarge or override the period provided for the first execution petition, rather it provides an outer limit for execution proceedings once properly initiated in accordance with law.
4.This Court, in the case of National Bank of Pakistan 1 , authoritatively ruled that where no execution petition is filed within the period prescribed under Article 181 of the Act, any subsequent petition would be barred by time, and the benefit of Section 48, C.P.C. cannot be availed to revive a right, which has already been extinguished by lapse of limitation. It is observed that the scheme of law contemplates that only after a valid and timely first execution petition is instituted, a subsequent application can be maintained within the maximum period provided under Section 48, C.P.C. This principle was followed in the subsequent judgment of this Court in the case of Bakhtiar Ahmed 2 , wherein it was held that:
"In view of the rule laid in the cases noted above, first application for execution of a decree can be filed within three years under Article 181 of the Limitation Act. The decree in this case was admittedly passed on 17-3-2003, while no application for execution was moved within three years. The application, out of which the present civil petition has arisen, was the first application, which could be filed within three years. The contention of the counsel for the petitioner that the execution application is governed by section 48, C.P.C. is not correct. As held in the case of Mahboob Khan (supra), the result of the change brought out by the Law Reforms Ordinance is that the only effect of section 48, C.P.C. would be to provide a period of limitation for subsequent execution applications after the first one and that if no application at all is made within the period prescribed by the Limitation Act, the execution application made thereafter would be barred by limitation and as such there would be no occasion to avail of the benefits of the extended time provided by section 48, C.P.C. The result of the above decision is that the first application for execution must be made within the period prescribed by the Limitation Act and that section 48, C.P.C. would apply only to any subsequent application for execution. In the circumstances, section 48 of C.P.C. has no applicability to the facts of the present case"
In this context, reference may also be made to the case of Mahboob Khan 3 , wherein the question as to the interpretation of the said provisions came up for consideration, and it was ruled as under:
As section 48, C.P.C. is mentioned in Article 181 by way of exclusionary provisions obviously this Article has to be read with section 48, C.P.C., although the two provisions are independent and parallel provisions, with different scopes and objects. With the disappearance of Article 182 obviously no other Article of the Limitation Act is specifically attracted to the application for execution of the decree of a Civil Court, other than High Court. On the plain language of section 48, C.P.C. the object underlying that section was to provide an outer limit of time and prohibit the making of an order for execution of a decree on a fresh application "presented" after expiration of six years from the date of the decree etc. In order to see whether in the present case the limitation contained in section 48 is attracted or not it is necessary to determine whether execution was sought on a fresh application presented after the said period. The word fresh" has been defined in the Oxford English Dictionary, Volume IV, to mean, inter alia, "new, recent" or "newly made". It, therefore, appears that the application within the contemplation of the prohibition contained in section 48 was not the first execution application but any subsequent application, after such first application, which was presented beyond the prescribed period of six years. Construed in this light, and reading the two provisions together, it would appear that the effect of the amendment made by the Law Reforms Ordinance, 1972, is that the first application for the execution of the decree of a Civil Court would be governed by the residuary Article 181 prescribing a period of three years and since any subsequent or fresh application for execution would be governed by section 48, C.P.C., it would be out of the purview of Article 181 on its express terms. In some of the Indian decisions the expression "fresh application" has been so construed to mean application for execution after the disposal of the first execution application. See Yadorao Wasudeorao Pathak v. Govindrao Ramji Pant AIR 1939 Nag. 245, Lekshmi Amma Kochukutty Amma and another v. Raman Pillai Kumara Pillai and others AIR 1952 Travancore-Cochin 268 and Venlappa and others v. Lakshmikant Rao AIR 1956 Hyd. 7 .
In this behalf, reliance can also be made on the judgment of the House Building Finance Corporation " 4 .
5.Following the above precedents of this Court, the legal aspect of the case may be summarised as under:
6.In view of the foregoing discussion, we are of the considered view that Article 181 of the Act governs the maintainability of the first execution petition, whereas Section 48, C.P.C. provides the maximum period within which a decree may be executed, and after proper initiation, the two provisions operate harmoniously and not in conflict. Section 48, C.P.C. cannot be invoked to defeat the mandatory command of Article 181 of the Act.
7.In the result, this petition is converted into an appeal and allowed. The impugned judgment of the High Court is set aside. No order as to costs.
MH/R-5/SC Appeal allowed.
1 National Bank of Pakistan v. Aziz ud Din (1996 SCMR 759).
2 Bakhtiar Ahmed v. Shamim Akhter (2013 SCMR 5).
3 Mahboob Khan v. Hassan Khan Durrani (PLD 1990 SC 778).
4 House Building Finance Corporation of Pakistan v. Rana Muhammad Iqbal (2007 SCMR 1929).
Judges on this bench
- Shahid Bilal Hassan468 judgments
- Shakeel Ahmad452 judgments