Stereo. H C J D A 38.

Judgment Sheet
IN THE LAHORE HIGH COURT
MULTAN BENCH MULTAN
JUDICIAL DEPARTMENT

FAO No.182/2005
(Pakistan Barma Shell New Sheel Pakistan Vs. M/s Nawaz and Sons etc.)

JUDGMENT
Date of Hearing 06.11.2013
Appellant by: Sh. Usman Kareem ud Din, Advocate.
Respondents by: Mian Muhammad Asif Rasheed Sial, Advocate.

Atir Mahmood, J.: Through this appeal, the appellant has

impugned order dated 04.06.2005 passed by learned Civil Judge,
Mailsi whereby the execution petition of the appellant was dismissed
being barred by time.

2. Brief facts of the case are that the appellant filed a suit under
Order XXXVII Rules 1 & 2 CPC for recovery of Rs.50,46,321.60
against the respondents-defendants which suit was decreed by learned
Additional District Judge, Vehari vide judgment and decree dated
06.07.1995. Feeling aggrieved, the respondents-defendants preferred
RFA No.98/1995 before this Court on 15.10.1995. The appeal was
admitted for regular hearing and notice was issued to the appellant. A
C.M. for interim injunction was also filed by the defendants alongwith
the RFA wherein notice was issued but no stay was granted. After
about nine years of filing of the appeal, the respondents withdrew the
appeal on 14.06.2004. Thereafter, the appellant filed an execution
petition on 01.09.2004 which was dismissed by the learned Civil
Judge Mailsi vide impugned order dated 04.06.2005 holding that the
execution petition was time barred. Hence this appeal.

3. Learned counsel for the appellant inter alia contends that since
judgment and decree passed in favour of the appellant was challenged
before this Court by the respondents through RFA which was
FAO No.182/2005 2

admitted for regular hearing, there was no occasion for the appellant
to move an execution petition. He asserts that when the proceedings
before an appellate court are pending, the decision of which might
deprive execution petitioner at a later stage from the fruits gained by
him, the execution petition cannot be filed during the pendency of the
appeal before the appellate court as terminus a quo of time limitation
will be the date of decision of the appellate court before which the
appeal has been preferred and not from the date of passing of the
judgment and decree, therefore, the execution petition of the appellant
was within time as RFA filed by the respondents-defendants was
dismissed as withdrawn on 14.06.2004 and the execution petition was
filed by the appellant on 01.09.2004. He next argues that the
executing court has not framed any issue and decided the objection
petition without recording the evidence which is against the law. He
submits that the act of challenging judgment and decree by way of
filing appeal and then withdrawing the same by the respondents
amounts to fraud which cannot be protected under the law. He,
therefore, prays that this appeal be allowed, the impugned order be set
aside and order of execution of the decree be passed. In support of his
contentions, learned counsel for the appellant has relied upon the law
laid down in cases reported as “Union of Indian and others Vs. West
Coast Paper Mills Ltd and another (AIR 2004 SC 1596)”, “Jokhan Rai
Vs. Baikunth Singh (AIR 1987 PATNA 133)”, “Gyaniram vs.
Gangabai (AIR 1957 MP 85)”, “Saifur Rahman and others Vs. haider
Shah and another (PLD 1967 SC 344)”, “Maulvi Abdul Qayyum Vs.
Syed Ali Asghar Shah and 5 others (1992 SCMR 241)”, “Nawabzada
Tilla Muhammad Khan Vs. Haji Muhammad Afzal and 4 others (2012
YLR 2236)”, “Hakim Khan Vs. Saz Gul and others (2004 YLR 351)”,
“Muhammad Umar Gul Vs. Ikram Ullah Khan (1997 MLD 1917)”,
“Dost Muhammad Vs. Muhammad Rafiq (2003 YLR 1908)”,
“Nagendra Nath Dey and another Vs. Suresh Chandra Dey and others
(AIR 1932 Privy Council 165)”, “Uma Shankar Sharma Vs. The State
of Bihar and another (AIR 2005 Patna 94)” and a judgment dated
FAO No.182/2005 3

26.09.2008 passed by Patna High Court in Civil Revision

No.2105/2000.

4. On the other hand, learned counsel for the respondents has

vehemently opposed the averments made by learned counsel for the
appellant and fully supported the impugned order. He avers that the
execution petition filed before executing court was badly barred by
time. He maintains that since there was no stay granted to the
respondents-defendants in the RFA filed by them, the appellant was at
liberty to move the execution petition before the executing court
which was not done within the time limitation, therefore, it could not
be entertained by the executing court after expiry of time, as such, the
execution petition was rightly dismissed by the lower court. He prays
that this appeal having no merit be dismissed. In support of his
assertion, learned counsel has relied upon the law laid down by the
Hon’ble Supreme Court of Pakistan in case reported as “Bakhtiar
Ahmed Vs. Mst. Shamim Akhtar and others (2013 SCMR 5)”.

5. I have heard the arguments advanced by learned counsel for the

parties and also perused the record.

6. The appeal was preferred against the judgment and decree

passed by the trial court which was admittedly for regular hearing by
this Court but operation of the impugned judgment and decree was not
suspended by this Court. Since the matter remained pending before
this Court for considerable time of about nine years but the decree
holder despite the fact that operation of the impugned judgment and
decree, was not suspended, never opted to file any execution petition.
After about 9 years of filing of the appeal, the respondent-judgment
debtor withdrew the appeal on 14.06.2004.

7. After dismissal of appeal of the respondent-judgment debtor,

the execution petition was filed by the appellant on 01.09.2004 which
was dismissed by the executing court vide impugned order dated
04.06.2005 on application of the respondent filed under Section 3 of
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the Limitation Act holding that the execution petition was barred by
time as it was not filed within the specified period of three years
commencing from the date of passing of the decree. Learned counsel
for the appellant has tried to make out a case of merger by submitting
that the appeal is continuation of the proceedings, as such, the
execution petition was filed within the limitation as the appeal was
dismissed on 14.06.2004 and execution petition was filed on
01.09.2004. I am afraid that the contention of learned counsel for the
appellant does not hold water. There is no cavil to the proposition that
the appeal is continuation of the proceedings but at the same time, rule
of merger is applicable when the decree of the trial court is modified,
reversed or affirmed by the appellate court. The contention of learned
counsel for the appellant is even not supported by the case law relied
upon by him. The principle of merger was elucidated by the Hon’ble
Supreme Court of Pakistan in case reported as “1992 SCMR 241
(Maulvi Abdul Qayyum Vs. Syed Ali Asghar Shah and 5 others)”
in the following terms:

“…there are some exceptions to the rule of merger, for

instance, there will be no merger on 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.” (Underline is mine)
This principle was further elaborated by the august Supreme Court in
case cited as “2003 SCMR 436 (Muhammad Nazir and another Vs.
Qaiser Ali Khan and 4 others)” as under:

“The objection of the appellants that the execution petition

having not filed within three years from the date of decree,
therefore, notwithstanding the pendency of appeal it would
become time barred, has no substance. The appeal being
continuation of suit, the decree in the suit would only be
finalized on the disposal of appeal as the decree of the Court
of first instance would merge into the decree of Appellate
Court which alone could be executed. However, till the time
appeal or revision was not filed or such proceedings were
FAO No.182/2005 5

pending and no stay order was issued, the decree would

remain capable of execution but if the decree was under
challenge in pending appeal or revision and was not
executable, the decree ultimately passed by the decree of the
Court of last instance in appeal or revision as the case may
be, would be executed irrespective of the fact that the decree
of the lower Court was modified, affirmed or reversed.”
The rule of merger has also been discussed in a recent judgment of the
Hon’ble Supreme Court reported as “2013 SCMR 5 (Bakhtiar
Ahmed Vs. Mst. Shamim Akhtar and others)”. Relevant portion
from the said judgment is given hereunder:

“… where stay is granted by the Appellate/Revisional Court,

time can be extended for such period the decree remained
under suspension. In the instant case a right has been accrued in
favour of the respondent in terms of the order of the High Court
and admittedly no stay or leave to appeal was granted by this
Court as such the period of limitation would run from the
decree passed by the High Court and no extension of time can
be granted.”

8. For what has been discussed above, it is evident that the appeal
though is a continuation of proceedings yet rule of merger will apply
if the decree of the trial court is modified, reversed or affirmed by the
appellate court. If the stay is granted by the appellate court, the time
for execution petition may be extended till the time decree remains
under suspension. If the stay is not granted and the appeal preferred
against the decree is withdrawn, disposed of or so without deciding
the appeal on merits, terminus a quo for computation of time for
filing of execution petition will be the date of passing of the decree. In
the instant case, no stay was granted by this Court in the appeal
preferred by the respondent-judgment debtor against the judgment and
decree dated 06.07.1995 which was ultimately withdrawn by him on
14.06.2004. Despite filing of the appeal against the decree dated
06.07.1995, the decree remained executable, as such, limitation for
filing of execution petition started from the date of passing of the
decree and continued for three years ending at 05.07.1998. But the
decree holder did not file the execution petition for about nine years
till 01.09.2004 when he moved execution petition after withdrawal of
FAO No.182/2005 6

the appeal by the judgment debtor. In the circumstances, the execution

petition was badly barred by time. Under the law, each and every day
of delay is required to be explained but the appellant has failed to do
so. The order passed by learned executing court is in accordance with
law which does not call for interference by this Court. No interference
is called for. As a result, this appeal is bereft of any merit, hence
dismissed.

(ATIR MAHMOOD)
Judge
Approved for reporting.

Judge

Akram*