Law: Code of Civil Procedure (CPC) , 1908

Section: 48

Law: Limitation Act, 1908

Section: 181,156

ORDER
1.    Through the instant judgment, I propose to decide both the above titled Appeals as they involve common questions of facts and law between the same parties.
2.    The brief facts leading up to the filing of the instant Appeals are that the Plaintiff [Syed Zaheer Hussain Naqvi] filed a Suit for Recovery of Rs.5,500,000/- against the Defendant [M/s R.P. Corporation (Private) Limited]. The Defendant filed his written statement. However, thereafter, the Defendant stopped appearing as a result of which ex-parte proceedings
 

were initiated against him on 15-10-2022 and the Plaintiff produced his evidence ex-parte. Eventually, the Suit was decreed vide Ex-parte Judgment and Decree dated 30-9-2011.
3.    On 15-12-2012 the Defendant filed an application for setting aside of the Ex-parte Judgment and Decree dated 30-9-2011 which was accepted by the learned Civil Judge 1st Class, Islamabad-West (“Trial Court”) vide Order dated 12-1-2017 whereby the Ex-parte Judgment and Decree was set aside subject to cost of Rs. 20,000/-. The Trial Court framed Issues and the parties were directed to produce evidence.
4.    Meanwhile, the Plaintiff filed Civil Revision No. 127 of 2017 before this Court assailing the Order dated 12-1-2017. No stay was passed during its pendency. The Civil Revision was dismissed vide Judgment dated 8-6- 2022.
5.    Nevertheless, on 22-11-2022 the Trial Court recalled the Order dated 12-1-2017 on account of the Defendant’s failure to fulfill the condition imposed therein for payment of cost Rs. 20,000/- and restored the Ex-parte Judgment and Decree dated 30-9-2011.
6.    Thereafter the Plaintiff/Decree Holder filed Execution Petition on 16-2-2023. The Defendant/Judgment Debtor filed Objection Petition on the grounds that the Execution Petition was time barred and that the Ex- Parte Judgment and Decree dated 30-9-2011 was passed only to the extent of recovery of Rs.3,400,000/- and as such the mark-up sought by the Plaintiff/Decree Holder’s at flat rate of 11% on the decreetal amount of Rs.3,400,000/ is beyond the decree. The Executing Court vide the Order dated 16-9-2024 (“Impugned Order”) partially dismissed the Objection Petition to the extent of the objection that the Plaintiff/Decree Holder’s execution petition was time barred and with regard to the non-existence of decree sheet but allowed it to the extent of markup.
 

7.    The Defendant/Judgment Debtor (for ease of reference hereinafter referred to as Appellant/Judgment Debtor) has preferred F.A.O. No. 141 of 2024 assailing the Impugned Order passed by the Executing Court to the extent that the Objection Petition has been dismissed with regard to the execution petition being time barred.
8.    On the other hand, the Plaintiff/Decree Holder (for ease of reference hereinafter referred to as Respondent/Decree Holder) has also assailed the Impugned Order by preferring F.A.O. No. 155/2024 to the extent that the Objection Petition has been allowed in respect of markup.
9.    In respect of F.A.O. No. 141 of 2024, the learned counsel for the Appellant/Judgment Debtor submitted that to the extent that the Objection petition has been dismissed the Impugned Oder has been passed without cogent reason. He highlighted that the execution petition was filed by the Respondent/Decree Holder after a lapse of more than eleven years and as such was time barred. He emphasized that though the Appellant/Judgment Debtor had filed an application for setting aside of the Ex-parte Judgment and Decree dated 30-9-2011 but no stay order had been passed by the Trial Court during the pendency thereof. The Trial Court eventually accepted the Appellant/Judgment Debtor’s application vide Order dated 12-1-2017 but by such time the Respondent/Decree Holder’s limitation period for filing of execution petition under Article 181 of the Limitation Act, 1908 (“Limitation Act”) had expired. He explained that the first execution petition is filed under Article 181 which prescribes three years as the limitation period whereas subsequent applications are governed by Section 48, CPC. He argued that the Respondent/Decree Holder did not file execution petition within three years as prescribed under Article 181 of Limitation Act therefore he cannot avail the benefit of the extended period provided under Section 48 CPC. The learned counsel also pointed out that no stay was granted in the Civil Revision No. 127 of 2017 filed by the Respondent/Decree Holder before this Court assailing the Order dated 12-