Mirza AKBAR ALI vs NATIONAL BANK OF PAKISTAN

ORDER

1. SHAFIUR RAHMAN, J.--The petitioner, a judgment -debtor, seeks leave to appeal against the judgment of the Lahore High Court; dated 15-7-1984 whereby a civil revision petition filed by him objecting to the execution of the decree of the civil Court, was rejected in limine and the order of the first appellate Court was upheld.

2. The respondent obtained a money decree on the 24th of September, 1969 from the Court of Civil - Judge. There was no appeal against it. The first execution application was filed on 12th of May, 1972 but dismissed on 16th of September, 1976 on the ground that the address of the petitioner had not been filed. The second application for execution was filed on 19th of November, 1976 and that to was dismissed for non-prosecution on 20-7-1977. A third application was filed on 25th of September, 1977 which to was dismissed on 20th of May, 1978 for the decree-holder's failure to file a copy of the decree-sheet. It was in this background that the fourth application for execution of the decree was filed on 25th of June, 1981 and an objection to its execution was taken, inter alia, on the ground that it was filed beyond the period prescribed in Article 182 of the Limitation Act as it was not within three years of the dismissal of the last application though it was within twelve years of the passing of the decree. The executing Court rejected this objection on 26th of February, 1984. An appeal filed by the petitioner was also dismissed by. The Additional District Judge, Lahore. The High Court refused to interfere in revision. Hence this petition for leave to appeal.

3. The learned counsel for the petitioner submitted that undoubtedly the amendment in section 48 of the Code of Civil Procedure made by the Law Reforms Ordinance, 1972 could not affect such decrees as were passed before the enforcement of the amendment. On the same reasoning it was contended that repeal of Article 182 of the Limitation Act by the same Ordinance could not affect the vested right of the petitioner judgment-debtor to insist that the application for execution must be moved within three years of the dismissal of the earlier execution application.

4. Article 182 of the Limitation Act did contain a clog on the right, of the decree-holder as he was required to institute the second or subsequent application for execution of the decree within a period of three years from the dismissal of the last application. This clog having been removed by the Law Reforms Ordinance in 1972 and the law 01 the limitation being primarily a procedural law such a clog will not subsist after its repeal. The petitioner cannot claim a vested right arising out of it as none was conferred by such a provision. The substance of the provisions made in section 48 of the Civil Procedure Code and Article 182 of the Limitation Act being different the same principle as applies in giving effect to section 48 cannot be extended to Article 182 of the Limitation Act. The bar of moving the application within three years of the rejection of the last application did not continue. As otherwise the application had been made within twelve years from the date of the decree, it fulfilled requirement of section 48 as it stood before its amendment by Law Reforms Ordinance.

5. We find that there is no merit in the submissions made by the learned counsel for the petitioner and leave to appeal is refused.