Present : MUHAMMAD AKRAM KHAN & ABDUL GHAFOOR, JJ

ALLIED BANK OF PAKISTAN, Main Branch Mirpur
versus
Messrs. M. S. ABBAS BUS SERVICE and 4 Others

Civil Appeal No, 34 of 1983, decided on 26-5-1984. (i) Ci»il Procedure Code (V of 1908)—
—— O. XX, Rr. 3, 4, 8 & 12—Death, marriage or insolvency of parties—Procedure in case of—Execution proceedings—Effect on-Held : Application of rules 3 & 4 having specifically been excluded to proceedings in execution of decree or order, execution application not to abate against legal representatives of deceased judgment-debtor to extent of her liability in decree. [Pp. 38 & 39]A

(ii) Civil Procedure Code (V of 1908)—
—— O. XXI, R. 11(2)—Execution of decree—Written application for— Verification—Requirement of—Held : Defect of non-verification of application being mere irregularity not affecting merits of case, such defect not to be held fatal to make application void [P. 39]B

31 Mad. 68 ; AIR 1941 Pesh. 103 ; AIR 1927 Allahabad 514 & AIR 1932 Cal. 28 rel.

(iii) Civil Procedure Code (V of 1908)—
—— O. IX, R. 13 & O. XLV1I, Rr. 1 to 9—Exparte decree-Setting aside of—Application for—Review—Remedy of—Distinction bet- ween—Held : Both remedies of petiton for review and application for setting aside exparte decree being independent and different in nature, application for setting aside decree moved under O. IX, R. 13 not to include petition for review, [P. 39]C

(iv) Limitation Act (IX of 1908)—
—— Art. 182—Decree—Execution of—Limitation for—Suit filed in High Court subsequently transferred to District Judge on enlarge¬ment of pecuniary jurisdiction of that court — Held : Decree (ultimately) having been passed by District Judge, period of limita¬tion for filing execution application to be three years from date of decree. [P. 40]/>

PLD 1951 Dae. 130 ; AIR 1932 All. 611 ; AIR 1922 Nag. 197 & AIR 1927 Cal. 904 rel.

Mr. Abdul Latif Dutt, Advocate for Appellant. Agha Ashiq Hussain, Advocate for Respondents. Date of institution : 27-8-1983.

JUDGMENT

Abdul Ghafoor, J.—This is an appeal against the judgment and decree of the District Judge Mirpur dated 1st of June, 1983, whereby an execution application of the appellant for the execution of a decree dated 20th of March, 1977, passed by the District Judge Mirpur, was dis¬missed.
2. The brief facts giving rise to the present appeal are that appellant- Bank filed a money suit against the respondents for the recovery of Rs. 77,618/71, thus a decree for payment of Rs. 77,618/71 was passed on 20th of July, 1977 in favour of the plaintiff-appellant, against the defen-dant.
3. The plaintiff-appellant filed an execution application for the above mentioned, decree in the Court of District Judge Mirpur on 4th of April, 1981. In the application, it was prayed that in addition to the decretal amount, the applicant-bank is also entitled to a sum of Rs. 1,386/-, as costs of the suit and a sum of Rs. 1.25,840/- as interest.
4. Respondents-judgment-debtors on notice, objected to the execu¬ tion of decree on the following grounds :—

(i) That the application has not been verified in accordance with law, therefore, it is not tenable ;
(ii) that the respondents-judgment-debtors Nos. 4 and 5 are dead and their legal representatives have not been brought on the record as such the suit abated in loto ;
(iii) that the application is time-barred ; and
(iv) that the decree-holder has put up a demand of Rs. 1 }25,840/-, as an interest, although he was not held entitled to it by the Court.

5. The appellant-Bank, moved an application for permission to bring the legal representatives of Mst. Riaz Akhtar on file on the 25th of November, 1981. It was prayed in the application that the .decree-holder came to know of the death of Mst. Riaz Akhtar only about a week ago. She was survived by Iftikhar Hussain Shah her husband and a minor son whose name was not known. It was also prayed that Mst. Iqbal Begum Judgment-debtor was also dead and the decree -holder came to know of her death only a week ago. However, her legal representatives, respon¬ dents Nos. 1 and 2, are already on the record. It was further prayed that the application was not verified inadvertantly, therefore, necessary per¬ mission to verify the same, might also be granted.
6. The respondents resisted the application and stated that Mst. Iqbal Begum’s death took place on the 30th of December, 1975, whereas Mst. Riaz Akhtar died on 31st of December, 1975 : the appellant-decree- holder filed application against the dead persons, therefore, the application calls for rejection.
7. As it appears from the perusal of the file of the lower Court, no issue on the point, as to when the appellant came to know of the deaths of Mst. Iqbal Begum & Mst. Riaz Akhtar, the judgment-debtor was settled and no opportunity was provided to the appellant-decree-holder to prove his stand. Likewise, no order with regard to the grant of permission, to verify the execution application, was passed. However, the learned District Judge heard the learned counsel for the parties and by his order dated 1st of June, 1984, dismissed the application on the following grounds :

(i) That the application for bringing the legal representatives of Mst. Riaz Akhtar and Mst. Iqbal Begum has not been filed within the prescribed period of limitation, therefore, the execution-applica¬tion abates to the extent of Mst. Riaz Akhtar’s liability ;
(ii) that the execution application was not verified as required by law, therefore, this defect is fatal to the application. He also found that there was no justification to permit the verification of the execution application :
(iii) that on the point of limitation, he has held that period of execution of the decree, is three years from the date of the decree, whereas the application for execution, was filed long after the expiry of the said three years’ period, therefore, the execution application is time-barred : and
(iv) that on the point of interest, the learned District Judge, held that the appellant-decree-holder was not held entitled to the amount of the interest. Therefore, there is no justification to grant the interest.

8. The learned counsel for the appellaut-decree-holder has attacked the finding of the learned District Judge on all the above mentioned points.

9. On point No. 1, he argued that his client did not know of the death of Mst. Riaz Akhtar, earlier than a week ago from the date of the application i.e. the 25th of November. 1984, As soon as he came to know of this fact, he moved an application within the period of one week from the date of the knowledge. He emphasized that it was the duty of the Court to provide him an opportunity to prove his assertion and failure of the Court, to do so, has caused grave injustice to his client, therefore, the finding of the learned District Judge, on this point, is liable to be set aside.

10. On the point of verification of the execution application, he argued that this defect is of a technical nature. He sought permission for verification of the application but the trial Court, without any plausible reason, and with out hearing him on this point, rejected his prayer. He pointed out that the law has not been correctly laid down in case reported in 135 I.C. 15. He emphasized that the trial Court should have relied upon the rule laid down in case entitled “Ramayyan v. Kadir Bacha Sahib”, reported in 31 Mad. 68, wherein it was held that such a defect is not fatal to the application,

11. On the point of limitation, the learned counsel for the appellant argued that the execution application was filed well within the period of limitation, i.e. after two years three months and three days. He elabo¬rated that respondents moved an application for setting aside this decree on 22nd of September, 1977 which was rejected on 31st of December, 1978, therefore, the peri id for execution of the application shall start running from 31st of December, 1978 when the application for setting aside the ex parts decree, was rejected. He emphasized that the application for setting aside the decree is, in fact, a review petition and in such a case, the period of limitation is six years, as is provided in Article 182, Limitation Act.

12. On point of interest, the learned counsel referred to the phraseo¬logy used in the decree-sheet ; he pointed out the following phrase mentioned in the decree of the Court, authorized the appellant to the interest :—

He interpreted the above phrase to the effect that the Court has entitled the decree-holder to claim and demand interest from the judgment-debtors.
`13. We have considered the points raised by the learned counsel for the parties and have closely gone through the facts of the case. Our observations are as under :—

(i) The first objection of the judgment-debtors related to the defect of failure to implead the legal representatives of Afst. Iqbal Begum and Mst, Riaz Akhtar, deceased. Order 22 C.P.C., deals with the case, where any of the parties to the suit, dies during the pendency of the suit and the direction, with regard to bringing the legal representatives of the dead person on the record. Rule 3 C.P.C. deals with the cases where plaintiff is dead and Rule 4 deals with the cases where the defendant is Idead. Rule 12 of Order 22 C. P. C., especially excludes the ^(application of Rules 3 and 4 of Order 22 C.P.C. to the execution ‘application. Therefore, the view taken by the learned District Judge, wherein he has held that the application abates against! the legal representatives of Mst. Riaz Akhtar to the extent of her! liability in the decree, is incorrect. Therefore, we set aside thej finding of the learned District Judge on this point ;

The next objection taken up by the respondent-judgment-debtors, relates to the defect of verification of the execution application by the decree-holder and upheld by the learned District Judge. We have gone through the provisions of Order 21 Rule 11 C.P.C. in as the light ol the observations made in the case reported in 135 1C 15, cited by the learned counsel for the respondents-judgment-debtors. In the above mentioned autho¬rity, it is, no doubt laid down tnat failure to verify the execution application is fatal. The learned counsel laid great stress on the word “shall” used in the Rule We feel that although the word “shall” is used in Rule 11 of Order 21 C.P.C., yet the defect of non-verification of the execution of the application, cannot be held to be fatal to the said application. It is, merely an irregu¬larity, not affecting the merits of the case and it cannot make the application void. We are fortified here by authorities reported in 31 Madras 68, entitled “Ramayyan v Kadir Bacha Sahib”. AIR 1941 Peshawar 103, AIR 1927 Allahabad 514 and AIR 1932 Calcutta 28. Therefore, we hereby reverse the finding of the learned District Judge on this point too ; and the next point urged by the learned counsel for the appellant is with regard to the rinding of the District Judge on the point of the limitation. The period for execution of decrees by the Civil Courts other than the High Court, is laid down in Article 182, Limitation Act. Provisions of Article 182, Limitation Act, as applicable in this case, require that application for the execution of decrees may be made within three years from the date of decree required to be executed. In this case, decree was passed on 20th of July, 1977 and application for its axecution, could have been moved within a period of three years i e. on or before the 20th of July 1980, whereas it was moved on 4th of April, 1981. In this Article, the words “the date of the decree” are pertinently used. The date of the decree can only he extended in case the impugned decree was appealed against or a review petition was filed against such a decree. The argument of the learned counsel for the appellant-decree-holder that the judgment-debtors moved an application for setting aside the aforesaid decree which was rejected on 31st of December, 1978, therefore, the period of three years shall be counted from 31st of December, 1978, is devoid of any force. We are afraid, we cannot accept this interpretation. The appli¬cation for setting aside the decree does not include a petition for review. The review petition is altogether a different remedy which has its own procedure as laid down in Order 47 C.P.C whereas the application for setting aside the decree is moved under Order 9 Rule 13, C.P.C. and both of the remedies are indepen¬dent and different in nature. Therefore, the interpretation, suggested by the learned counsel for the appellant that the ap¬plication for setting aside the ex parte decree, is in essence a review petition, is incorrect.

14. The learned counsel has also argued that originally the suit, in which the decree was passed, was filed in the High Court which was, later on, due to the enlargement of the pecuniary jurisdiction of the District Judges, transferred to the Court of District Judge which ulti¬mately, passed the decree. The learned counsel submits that this decree shall be considered to be a decree of the High Court and the proper Article, from the point of view of limitation, is Article 183 of the Limita¬tion Act, which lays down that the execution application can be filed within 12 years. This argument is also devoid of any force. The Court has to see and execution the decree and not the plaint or the Court where such plaint was filed. The decree in the instant case, was passed by the {learned District Judge and the proper Article of limitation is Article 182. ^.Limitation Act and the prescribed period for filing the execution application, is three years from the date of the decree. Therefore, we over-rule (this objection too. Our this view finds support from the authorities reported in PLD 1951 Dacca 130, AIR 1932 Allahabad 611, AIR 1922 Nagpur 197 and AIR 1927 Calcutta 904.
15. The learned counsel for the appellant, Mr. A.L. Dutt, has sub¬mitted written arguments which are placed on the appeal-file. The points raised in these arguments have already been dealt with in appeal, in the foregoing paragraph of the judgment, and need not be discussed further. In the aforesaid view of the matter, finding no force in this appeal, it is hereby dismissed with costs.

(TQM) Appeal dismissed.

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