| Citation(s) |
|---|
| 2015 SLG 976 2015 SLD 976 2015 CLC 1833 |
Balochistan High Court
Regular First Appeal No. 65 of 2013 and Civil Miscellaneous Appeal No. 5 of 2013, decided on 29th June, 2015. Date of hearing: 24th June, 2015.
NAEEM AKHTAR AFGHAN AND SHAKEEL AHMED BALOCH, JJ
Mumtaz Hussain Baqri and Sabira Islam for Appellants (in R.F.A. No. 65 of 2013). Ghulam Ali Raza for
Respondent No. 1 (in R.F.A. No. 65 of 2013). Saleem Baloch, Addl. A.G. for
Respondent No. 2 (in R.F.A. No. 65 of 2013). Mumtaz Hussain Baqri and Sabira
Regular First Appeal No. 65 of 2013 and Civil Miscellaneous Appeal No. 5 of 2013, decided on 29th June, 2015. Date of hearing: 24th June, 2015.
NAEEM AKHTAR AFGHAN AND SHAKEEL AHMED BALOCH, JJ
Mumtaz Hussain Baqri and Sabira Islam for Appellants (in R.F.A. No. 65 of 2013). Ghulam Ali Raza for
Respondent No. 1 (in R.F.A. No. 65 of 2013). Saleem Baloch, Addl. A.G. for
Respondent No. 2 (in R.F.A. No. 65 of 2013). Mumtaz Hussain Baqri and Sabira
KHURSHID ASHRAF and 3 others
VS
AFTAB ASHRAF and another
Law:
Section:
(a) Partition Act (IV of 1893)--- ----S. 4---Civil Procedure Code (V of 1908), O. VII, R.11 & S.11---Suit for partition---Res judicata, principle of---Applicability---Plaint, rejection of---Scope---Second suit for partition was instituted after decree of previous suit which was dismissed under O.VII, R.11, C.P.C.---Validity---Previous suit for partition was proceeded on merits and was decreed---No execution proceedings were initiated for enforcement of said and decree within the prescribed period of limitation, and decree passed in the previous suit, therefore, was not enforceable---Plaintiff had prayed for partition of suit property according to his share---Suit property was still joint between the parties---No previous decree for partition existed in favour of one of the plaintiffs---Trial Court had erred in facts as well as law while dismissing the present suit---Impugned order passed by the Trial Court was set aside and case was remanded for decision on merits in accordance with law---Appeal was accepted in circumstances. Santan Narian v. Saran Narian AIR 1959 PATNA 331 ref. Allah Dawaya v. Additional District Judge 2002 SCMR 1183; Muhammad Saleem v. Rashid Ahmed 2004 SCMR 1144; State Bank of Pakistan v. Imtiaz Ali Khan 2012 SCMR 280; Shariq Saeed v. Mansoob Ali Khan 2010 YLR 1647 and Riaz Ahmed v. Punjab Textbook Board 2006 SCMR 867 distinguished. Abdul Majid v. Mahmudabi, AIR (36) 1949 Nagpur 366; Bazlur Rahman v. Syed Ali PLD 1967 Dacca 809 and Habibur Rahman v. Abdul Rahman 1987 CLC 195 rel. (b) Limitation Act (IX of 1908)--- ----Art. 181----Civil Procedure Code (V of 1908), S. 48---Execution petition---Limitation---First application for execution of a decree would be governed by the residuary Art.181 of Limitation Act, 1908 and rest of the applications made thereafter would be governed by six years time limit prescribed by S.48, C.P.C.---Effect of S.48, C.P.C. was to provide limitation for subsequent execution petitions after the first one---In case no execution application was made within the period as prescribed by Art.181 of Limitation Act, 1908 then the execution petition made thereafter would be barred under the said Article and there would be…
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