Mian AKBAR HUSSAIN vs Mst. AISHABAI and others

1. SALEEM AKHTAR, J.---This appeal is directed against the judgment of a Division Bench of the Sindh High Court passed in Letters Patent Appeal whereby order of the learned Single Judge dismissing the execution application filed by the respondents as barred by limitation was set aside and was held to have been filed within the period of limitation. By order dated 12-3-1980, leave to appeal was granted to examine reinterpretation of Article 183 of the Limitation Act. Briefly the facts are that the respondents filed Suit No, 56/1962 for specific performance of a contract in respect of sale of immovable property against the appellant. The suit was decreed on 19-1-1966 and no appeal was filed against it. In October 1970 the respondents filed execution application No, 89/70 in the High Court. The appellant resisted it on the plea that the execution application was barred by time. The learned Single Judge by order dated 10-1-1972 relying on Firdous Trading Corporation and others v.

2. Japan Cotton and General Trading Co. Ltd. (PLD 1961 Kar. 565) held that the execution application was barred by time and the same was dismissed. The respondents filed Letters Patent Appeal which was heard by a Division Bench of the same High Court. By this time a Division Bench of the same High Court in Haji Razzak v. Usman and others (PLD 1975 Kar. 944) had taken a contrary view from what had been expressed in Firdous Trading Corporation's case. Following this judgment the Division Bench by its judgment dated 12-3-1980 held that Article 183 of the Limitation Act was applicable and the execution application filed by the respondent was within time.

3. ' The judgment relied upon by the Division Bench was challenged in appeal before the Supreme Court in Civil Appeals Nos. 137, 145-K/1976 Province of Sindh v. Haji Razzaq and another (1991 SCM R 920). All these appeals have been decided by a Full Bench of this Court on 25-2-1981, holding that the judgment in Firdous Trading Corporation's case was correct and consequently judgment in Razzaq v. Usman was set aside. The concluding part of this judgment is as follows:- "In the light of the historical background of the original civil jurisdiction vested in the High Court of Sindh, my opinion is identical to the one expressed by Wahiduddin Ahmed,J. In these words: "I have not the slightest doubt on the language of sections 8 of Sindh Act, 1926 and the definition of 'District' in section 2(4) of the Civil Procedure Code, that it was exercising District Court jurisdiction in contradiction to the ordinary original civil jurisdiction of the High Court. In my opinion the mere fact that the Sindh Chief Court later on was included within the definition of High Court under section 219 of the Government of India Act, did not change the nature of this jurisdiction."

4. ' It is to be noted that execution application was filed in the year 1970 and the learned Single Judge dismissed it on 18-1-1972, before the promulgation of Law Reforms Ordinance, 1972. Therefore the law prevailing before the amendment made by Law Reforms Ordinance, 1972 was to be applied.

5. According to Mr. Kunwar Mukhtar Ahmed learned Advocate Article 182 which has been deleted by the Law Reforms Ordinance, 1972 will apply to the execution application. On the other hand Mr. Ali Akbar learned Advocate-on-Record for the respondents contended that the judgment of the Supreme Court in the Province of Sindh v. Haji Abdul Razzaq has taken into consideration sections 4, 5 & 8 of the Court Fees Act without any reference to section 48 C.P.C. And Articles 181, 182 and 183 of the Limitation Act. As is obvious from the judgment quoted above while entertaining and trying Civil Suits the High Court of Sindh is exercising 'District Court jurisdiction in contradistinction to the ordinary original civil jurisdiction of the High Court'. Article 183 provides a period of limitation of six years for enforcing a judgment, decree or order from any High Court in the exercise of its 'ordinary original civil jurisdiction'. Therefore it is the nature of jurisdiction exercised by the High Court of Sindh which will determine the applicability of the Articles. In the light of the judgment of the Court quoted above Article 183 cannot be applied. Therefore either Article 181 or 182 will be applicable. In both the cases the period of limitation is three years. It is not the case of the respondents that the right to enforce the decree arises from a date other than the date of decree. Therefore the execution application should have been filed within a period of three years from the date of judgment/decree.

6. In view of the pronouncement of the Full Bench of the Supreme Court no other interpretation of these Articles in respect of execution of judgment and decree passed by the High Court of Sindh in Civil Suits can be taken. This appeal is therefore allowed with no order as to costs. The order of learned Single Judge is restored and the execution application shall stand dismissed.