1992 S C M R 241

Present: Muhammad Afzal Zullah, CJ. and Muhammad Afzal Lone, J

Maulvi ABDUL QAYYUM---Appellant

versus

Syed ALI ASGHAR SHAH and 5 others---Respondents

Civil Appeal No.791 of 1990, decided on 26th May, 1991.

(On appeal from the judgment, dated 18-4-1990 of the Peshawar High Court, Peshawar, passed
in Civil Revision No.3 of 1989).

(a) Civil Procedure Code (V of 1908)---

----O. XXI, R.11(2)---Limitation Act (IX of 1908), Art,181 --- Constitution of Pakistan (1973),
Art.185(3)---Leave to appeal was granted to examine whether period of limitation provided by
Art.181, Limitation Act, 1908, in the circumstances of case would start from 18-10-1981, when
appeal of respondents confirming decree of Trial Court was dismissed, or when the revision filed
before High Court by respondents was dismissed vide judgment dated 18-11-1986 and a decree
sheet was also drawn accordingly; viz. whether application for execution moved on 7-1-198?
within two months of the decision of revision was entertainable.

(b) Civil Procedure Code (V of 1908)---

----O. XXI, R.11(2) & Ss.96 & 115---Period of execution of decree---Decree of Court of first
instance merged into the decree of Appellate Court, which alone could be executed---Till such
time, an appeal or revision from a decree was not filed, or such proceedings were pending but no
stay order had been issued, such decree would remain capable of execution, but when Court of
last instance had passed the decree, only that decree could be executed, irrespective of the fact,
that decree of lower Court was affirmed, reversed or modified.

Ram Churn Bysak and another v. Luckhee Kant Barnick and others 16 SWR 1; Kristo Kinkur
Roy and another v. Rajah. Burrodacaunt Roy and another 14 Morre's IA 465; F.A. Khan v.
Government of Pakistan P L D 1964 SC 520 and Lala Brij Narain v. Kunwar Tejbal Bikram
Bahadur 37 IA 70 ref.

(c) Civil Procedure Code (V of 1908)---

----S. 2(2)---Decree---After affirmation of decree of Trial Court, decree in existence was only
that of the Appellate Court.
Saeed Ahmed v. Messrs Indo Enamel Works Limited, Lahore P L D 1954 Lah. 490; Harilal
Dalsukhram Saheba v. Mulchand Asharam A I R 1930 Bom. 225; Joydcb Agarwala v. Baitulmal
Karkhana Ltd. P L D 1965 SC 37 and Balakanat v. Mst. Munni Dail A I R 1914 PC 65 ref.

(d) Civil Procedure Code (V of 1908)---

----Ss. 96 & 115---Remedy by way of appeal or revision---Concept of acceptance of appeal as

that lower Court had failed to pass decree which should have been passed---Same object was
achieved when a revision from the decree of lower Court was accepted---Distinction between
remedy by way of appeal and revision.

The distinction between the remedy by way of appeal and revision was not unknown. The appeal
was the continuation of original proceedings before the higher forum for the purposes of testing
the soundness of the decision of the louver Court. On the other hand, the remedy of revision was
discretionary and the revisional Court had to proceed under certain limitations in interfering with
the judgment and decree of the lower Court, but both on filing the appeal or revision, as the case
may be, the decree of the lower Court was put in jeopardy. Indeed the correction of error in 'the
proceedings of the Court below. was common characteristic of both the remedies. The concept of
acceptance of appeal was that the lower Court had failed to pass the decree which should have
been passed. The same object was achieved when a revision from the decree of the lower Court
was accepted. Thus in a way revisional jurisdiction partakes of appellate jurisdiction.

Mahboob Khan v. Hassan Khan P L D 1990 SC 778; Ram Churn Bysak and another v. Luckhee
Kant Barnick and others 16 SWR 1; Kristo Kinkur Roy and another v. Rajah Burrodacaunt Roy
and another 14 Morre's IA 465; F.A. Khan v. Government of Pakistan P L D 1964 SC 520; Lala
Brij Narain v. Kunwar Tejbal Bikram Bahadur 37 IA 70; Saeed Ahmed v. Messrs Indo Enamel
Works Limited, Lahore P L D 1954 Lah. 490; Harilal Dalsukhram Saheba v. Mulchand Asharam
A I R 1930 Bom. 225; Joydeb Agarwala v. Baitulmal Karkhana Ltd. P L D 1965 SC 37;
Balakanat v. Mst. Munni Dail A I R 1914 PC 65; Chappan v. Moidin Kutti I L R 1899 Mad. 68:
Nagendra Nath Dey and others v. Suresh Chandra Dey and others 59 IA 283; Mymensingh
Co-operative Town Bank Ltd. v. Rajendra Chandra Roy P L D 1961 Dacca 312; P.P.P.
Chidambara Nadar v.. C.P.A. Rama Nadar and others A I R 1937 Mad. 385 and Shankar
Ramchandra Abhyankar v. Krishnaji Dattatraya Bapat A I R 1970 SC 1 ref.

(e) Civil Procedure Code (V of 1908)?

?----OXXI, R. 11 & S.115---Rule of merger---For purpose of execution, rule of merger equally

applied to the decree passed in exercise of revisional jurisdiction.

(f) Civil Procedure Code (V of 1908)---

----O. XX, R. 14---Decree in pre-emption suit---Such decree being of a particular nature, title of
property would accrue to decree-holder on payment in Court of purchase money together with
costs, if any---Such requirement as envisaged by provision of OXX, R.14, Civil Procedure Code,
1908, having already been complied with by plaintiff, irrespective of the fact whether possession
was delivered to him or not, title in property would vest in plaintiff and he would be owner of
land in question---Defendant's opposition in the execution of decree was thus, all the more
ethereal---Plaintiff was entitled to get his decree executed..

Abdul Hakeem Khan, Senior Advocate, Supreme Court instructed by Manzoor Elahi,?
ex-Advocate-on-Record for Appellant.

Malik Fazal Hussain, Advocate Supreme Court instructed by Imtiaz M. Khan,

Advocate-on-Record for Respondents.

Date of hearing: 26th May, 1991

JUDGMENT

MUHAMMAD AFZAL LONE, J.---This appeal through leave to appeal, filed by a

decree-holder in a pre-emption suit, is directed against the High Court's judgment dated
18-4-1990, passed in revision, whereby his execution petition was dismissed as barred by time.

2. The facts are not in controversy. The trial Court decreed the suit for possession of the land in
dispute, in favour of the appellant on 27-4-1981. The respondents' first appeal against the
judgment and decree of the trial Court was dismissed on 18-10-1981. Their revision before the
High Court met the same fate. Consequently, the decree of the First Appellate Court was
affirmed. The judgment and decree of the High Court are dated 18-i1-1986. On 5-1-1987, the
appellant moved an execution petition under Order 21, rule 11, C.P.C., which embodied the
particulars of the decree of the trial Court the First Appellate Court as well as of the High Court.
The judgment-debtor raised the plea that the execution petition was barred by time. The
Executing Court turned down the objection and found that the execution petition was well within
time. Against the orders of the Executing Court, the respondents preferred an appeal, but the
learned District Judge did not find any justification to interfere with the execution of the decree.
Consequently, the appeal failed. The respondents then invoked the revisional jurisdiction of the
High Court; their revision petition was accepted and the orders of the two Courts were set aside.
The reasons which weighed with the High Court are:--

"...As no stay order was issued during the pendency of the revision petition but before the first
appellate Court stay order was issued, therefore, the respondent-plaintiff was to file an
application within a period of three years as provided under Article 181 of the Limitation Act
from the date when the appeal of the petitioner-defendant was dismissed by the learned District
Judge, Mansehra, on 19-10-1981. The record shows that the execution application. was filed in
the Court of the learned Civil Judge on 5-1-1987 which is beyond the period of limitation of 3
years and is time-barred."

3. Leave to appeal was granted to examine "whether the period of limitation provided by Article
181 of the Limitation Act in the circumstances of the present case would start from 18-10-1981,
when the appeal of the respondents confirming the decree of the trial Court was dismissed, or
when the revision filed by the predecessor of the respondents against the same order dated
18-10-1981 before the High Court was dismissed with costs vide judgment dated 18-11-1986
and a decree sheet was also drawn accordingly". In other words, whether the application for
execution moved on 7-1-1987 within two months of the decision of the revision was
entertainable.

4. Article 181 is a residuary Article and is attracted only when no other Article of the Limitation
Act is applicable. Article 182 having been repealed by the Law Reforms Ordinance, 1972, now
there is no other Article governing the period of limitation for execution of a decree of the Civil
Court, except Article 181. For the facility of reference, Article 181 is reproduced below-

1 ?????????????????????????????????????????????2
????????????????????? ???????????????3

Description of ????????????????????????????? Period of

????????????????????? Time from which period
the suit????????????????????????????????????????? Limitation?????????????????????? begins
to run.
____________________________________________________________________
181-Application for ???????????????????Three years. ????????????? When
the right to apply accrues.
which no period of
limitation is provided
elsewhere in this
schedule or by section
48 of the Code of
Civil Procedure, 1908.

Evidently, according to this Article, a petition for execution of the decree has to be made within
three years of the date of the accrual of right to apply but when such right arises, this Article is
silent. As is evident from the language of the Article it refers to section 48 of the Code of Civil
Procedure; thus both Article 181 and section 48 shall have to be read together, although as laid
down by this Court in Mahoob Khan v. Hassan Khan (PLD 1990 SC 778) "the two provisions
are independent and parallel provisions with different scopes and objects". Section 48, however,
prescribes the outer limit of time, after the expiry whereof fresh application for execution of the
decree cannot be entertained. Under this section the date of the decree sought to be executed, is
starting point of limitation. But the question requiring determination in this case is, whether the
period of limitation would start from the date of decree of the Appellate Court, or the one passed
by the High Court in revision.

5. It may be recalled that, according to the High Court, the time started from the date when the
First Appellate Court passed the decree. It is manifest from the impugned order that the. reason
which influenced the decision of the learned Single Judge in synchronizing the accruel of right to
apply within the meaning of Article 181, with the date of the decree of the First Appellate Court,
and not with that of the High Court, is that the First Appellate Court had stayed the execution of
the decree and the stay order ceased to be operative on the dismissal of the appeal, but no such
prohibitory order was issued in revision by the High Court. Obviously, the learned Single Judge
was conscious of the provision of section 15 of the Limitation Act whereunder in computing the
period of limitation for execution of a decree, the time during which the execution proceedings
remained suspended has to be excluded; meaning thereby that despite the decree of the Appellate
Court, the decree passed by the trial Court continued to maintain its identity and was capable of
execution. Quite advantageously, reference here, may be made to Order 41, rule 5, C.P.C., which
provides that mere riling of an appeal does not operate as a stay of the decree appealed from. The
Appellate Court, is, however, empowered to order the stay of the execution of such decree.
Seemingly, the object of this rule is that the decree-holder is not deprived of the relief to which
he has been found entitled by the Court, and at the same time to ensure that by execution of the
decree the appeal is not rendered infructuous. It appears that in holding that the period of
limitation for execution of the decree commenced from the date of the decision by the Appellate
Court, the rule that the decree of the Court of first instance, merged into the decree of Appellate
Court, which alone can be executed, was not present to the mind of the learned Judge. It is to be
remembered that till such time, an appeal or revision from a decree is not filed, or such
proceedings are pending but no stay order has been issued, such decree remains capable of
execution but when the Court of last instance passes the decree only that decree can be executed,
irrespective of the fact, that the decree of the lower Court is affirmed, reversed or modified.

6. This rule finds support from the judgment of the Full Bench of the High Court of Bengal,
rendered way back in the year 1871 in Ram Churn Bysak and another v. Luckhee Kant Barnick
and others (16 SWR 1). In that case the decree of the Court of first instance was affirmed in
appeal by the High Court. The period of limitation prescribed for execution of the decree of the
Court of first instance was different from the one fixed for that of the Appellate Court. In case of
execution of the decree of the Court of first instance, the execution petition was barred by time.
The issue before the Full Bench was that out of the two decrees which was capable of execution.
The Court observed:

"??.. whether the decree of the appellate Court is for reversing or for affirming the decree
against which the appeal was preferred, it is in either case the final decree in the cause, and as
such, the only decree which is capable of being enforced by execution after it is once
pronounced."

This judgment fell for consideration before the Judicial Committee in Kristo Kinkur Roy and
another v. Rajah Burrodacaunt Roy and another (14 Morre's IA. 465) and the observations
appearing therein support the said proposition. On an exhaustive review of the case law,
including these judgments, Kaikaus J. in his lucid judgment in FA. Khan v. Government of
Pakistan (PLD 1964 SC 520) held:

"???once an .appeal is filed the matter becomes subjudice and when the appellate authority
passes an order the order of the original authority disappears and merges in the order of the
appellate authority so that there remains in existence only the appellate order........?

In Lala Brij Na3rain v. Kunwar Tejbal Bikram Bahadur (37 IA.70) the Privy Council has taka,n
the view that the trial Court ceases to have the jurisdiction to amend decree, when it has been
affirmed by the Appellate Court. This would also strengthen the rule that after affirmation of the
decree of the trial Court, the decree in existence is only that of the Appellate Court. This view
has generally been followed in the sub-continent. Reference in this connection may also be made
to:

(i) Saeed Ahmad v. Messrs Indo Enamel Works Limited, Lahore (PLD 1954 Lahore 4900); and

(ii) Harilal Dalsukhram Saheba v. Mulchand Asharam (AIR 1930, Bombay 225).

6-A. During the course of hearing of this appeal, our attention has been drawn to Joydeb
Agarwala v. Baitulmal Karakhana Ltd. (PLD 1965 SC 37). That appeal before this Court, arose
out of a suit for specific performance of a contract for sale of land, which was decreed by the
trial Court on 3-11-1951, first appeal against this decree was dismissed by the High Court on
6-2-1958. Subsequently, a part of the land was acquired by the Government and compensation
assessed therefore. On 1st May, 1959, the decree-holder applied to the trial Court for amendment
of the decree, for the purposes of "getting a kabala in respect of the compensation money". The
amendment was allowed by the trial Court and a direction given to the defendant to execute the
kabala regarding award of moody as compensation: The amendment was challenged by the
defendant in appeal before the High Court, which was rejected as incompetent. The matter then
came up before this Court, and the contention raised was that the decree having been affirmed by
the High Court, no jurisdiction is vested in the trial Court to amend the same. Cornelius, J (as he
then was) expressed the view that:

"No modification was made in the decree by the High Court, and the argument of merger is
rendered of no weight by the consideration that in fact the High Court rejected the appeal."

It appears to us, we may say and say with respect, that the rule in the case of Lala Brij Narain
and FA. Khan was not intended to be modified. It may also be remarked that there Are some
exceptions to the rule of merger, for instance, there will be no merger eon the rejection of the
appeal under Order 41, rule 10 or dismissal in default under Order 41, rule 17 (see Balakanat v.
Mst. Munni Dail (AIR 1914 PC 65) or when appeal is withdrawn or abates. These instances are
pointer to the situation when the appeal is not disposed of on merits.

Further the merger is for a limited purpose of computation of period of limitation and execution
of the decree.

Another issue before us is, whether the rule of merger which is usually regarded as an attribute of
appellate jurisdiction can be extended to the revisional jurisdiction and the decree of the
revisional Court modifying or affirming the decree of the lower Court furnishes a starting point
of limitation under Article 181.

7. The distinction between the remedy by way of appeal and revision is not unknown. The appeal
is the continuation of original proceedings before the higher forum for the purposes of testing the
soundness of the decision of the lower Court. On the other hand, the remedy of revision is
discretionary and the revisional Court has to proceed under certain limitations in interfering with
the judgment and decree of the lower Court, but both on filing the appeal or revision, as the case
may be, the decree of the lower Court is put in jeopardy, Indeed the correction of error in the
proceedings of the Court below, is common characteristic of both the remedies. The concept of
acceptance of appeal is that the lower Court has failed to pass the decree which should have been
passed. The same object is achieved when a revision from the decree of the lower Court is
accepted. Thus in a way revisional jurisdiction partakes of appellate jurisdiction. A case on this
point is the one decided by a Full Bench of Madras High Court in Chappan v. Moidin Kutti (ILR
1899 Madras 68) where Subramania, J expressed the view that appellate jurisdiction includes
revisional powers. Again in Nagendra Nath Dey and others v. Suresh Chandra Dey and others
(59 IA. 283), the Judicial Committee regarded an application for revision as an appeal in
ordinary acceptance of the term. That was a matter arising out of an execution petition, which
was opposed by the judgment-?debtor, as barred by Article 182 of the Limitation Act. In this
regard, the precise observations of their Lordships of the Judicial Committee are:

"???..There is no definition of appeal in the Code, of Civil Procedure, but their Lordships have
no doubt that any application by a party to an Appellate Court, asking it to set aside or revise a
decision of a subordinate Court, is an appeal within the ordinary acceptation of the term, and that
it is no less an appeal because it is irregular or incompetent."

Similar was the opinion of a Division Bench of the erstwhile Dacca High Court in Mymensingh
Co-operative Town Bank Ltd. v. Rajendra Chandra Roy (PLD 1961 Dacca, 312); the Court on
the authority of some precedents from Calcutta High Court, in which it was laid down that under
Article 182, the limitation ran from the date of the order in revision, maintained that for the
purposes of execution of a decree, the appeal included a revision.

8. Earlier, the controversy, whether in an execution matter, for the purposes of computation of
period of limitation Article 182 (2) applied to revision petition as well or only to appeal was
debated before a Full Bench of Madras High Court in P.P.P. Chidambara Nadar v. C.P.A. Rama
Nadar and others (AIR 1937 Madras 385) and the Court after referring to the Judicial
Committee's opinion in Nagendra Nath Dey's case, did not find any essential difference between
the remedy by way of appeal and by way of revision. The difference between an appeal and
revision qua the rule of merger was also examined by the Supreme Court of -India in Shankar
Ramchandra Abhyankar v. Krishnaji Dattatrava Bapat (A I R 1970 SC 1) and it was laid down:--

"Now when the aid of the High Court is invoked on the revisional side it is done because it is a
superior Court and it can interfere for the purpose of rectifying the error of the Court below.
Section 115 of the Code of Civil Procedure circumscribes the limits of that jurisdiction but the
jurisdiction which is being exercised is a part of the general appellate jurisdiction of the High
Court as a superior Court. It is only one of the modes of exercising power conferred by the
Statute, basically and fundamentally it is the appellate jurisdiction of the High Court which is
being invoked and exercised in a wider and larger sense. We do not therefore, consider that the
principle of merger of orders of inferior Courts in those of superior Courts would be affected or
would become inapplicable by making a distinction between a petition for revision and an
appeal."

9. These judicial announcements leave no room for doubt that for the purpose of execution the.
rule of merger equally applies to the decree passed in exercise of revisional jurisdiction. This
issue may also be examined from another angle. Take the case of a suit, which is dismissed by
the trial Court and with this dismissal the First Appellate Court does not interfere, but it is
decreed by the revisional Court. There should be no doubt that the decree of the Court of revision
can well be executed. So far as executability of a final decree is concerned, does it make any
difference, if the decree of the First Appellate Court is affirmed by the revisional Court? It will
be sheer contradiction in terms if the decree is held enforceable when the suit is decreed for the
first time by the revisional Court, but regarded as incapable of execution if its decree is that of
the affirmation of the decree of the lower Court, and moreso when Article 181, unlike Article
182, which has disappeared from the Statute Book, does not refer either to decree of the
Appellate Court or revisional Court but anchors the commencement of period of limitation on the
accruel of right to apply and such right legitimately arises when revision against the decision of
the lower Court is, one way or other, disposed of.

10. It will be material to bear in mind, that a decree in a pre-emption suit is of a peculiar nature.
Under Order 20, Rule 14, C.P.C., the title of the property accrues to the decree-holder on
payment in the Court of purchase money together with costs, if any. It has not been controverted
before us that the requirements of Rule 14 have already been complied with by the appellant.
Thus, irrespective of the fact whether the possession is delivered to him or not, title in the
property has vested in the appellant and he is owner of the land in dispute. Viewed in this
context, the respondents' opposition to the execution of the decree becomes all the more ethereal.

For all the reasons, the appeal is accepted, but as there is no reported judgment of this Court on
the issue involved in this appeal, the parties are left to bear their own costs.

A.A./A-898/S ????????????????????????????????????????
????????????????????? ??????????Appeal accepted.