FIDA HUSSAIN SHAH vs MUHAMMAD RAFIQUE SHAH
This matter originated as a petition for leave to appeal against an order dismissing an application to set aside an ex parte pre-emption decree on the grounds of limitation. The trial court had applied Article 164 of the Limitation Act 1908, treating the application as time-barred. Relying on the precedent established by the Supreme Court in Messrs Rehman Weaving Factory v. Industrial Development Bank of Pakistan, the parties agreed that the controversy regarding the applicable limitation period had been resolved. The core legal question concerned which article of the Limitation Act 1908 governs an application to set aside an ex parte decree in these specific circumstances. Following the cited precedent, the Court held that Article 181 of the Limitation Act 1908 is the applicable provision, rendering the petitioner's application within the period of limitation. Consequently, the petition was converted into an appeal, the appeal was allowed, the ex parte decree was set aside, and the matter was remanded to the trial court for further proceedings.
- Does Article 164 or Article 181 of the Limitation Act 1908 apply to an application for setting aside an ex parte pre-emption decree?
- Is an application to set aside an ex parte decree governed by the residuary Article 181 of the Limitation Act 1908?
- Article 164, Limitation Act 1908
- Article 181, Limitation Act 1908
ORDER
MUHAMMAD AFZAL ZULLAH, J.--Both the learned counsel agree that this case is covered by judgment of this Court in Messrs Rehman Weaving Factory v. Industrial Development Bank of Pakistan etc. PLD 1981 SC 146.
2. An ex parte pre-emption decree was passed against the petitioner by the trial Court. The application for setting aside the same was dismissed as time-barred by applying Article 164 of Limitation Act. Article 181 of Limitation Act was held to be not applicable.
3. Both the learned counsel state that the Supreme Court has now in the aforecited case resolved the controversy and further that according to the rule laid therein, Article 181 would be applicable in the circumstances of this case. That being so, the application for setting aside the ex parte decree was within limitation.
4. In view of what is stated above, this petition is converted into appeal. It is allowed. Ex parte decree passed against the petitioner is set aside. The case is remanded to the trial Court for further proceedings.
5.The question whether the pre-emption suit can proceed now will be decided by the trial Court if and when a plea is raised before it.
There shall be no order as to costs.
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