ANJUMAN GHULAMAN MUSTAFA vs DARUL ISLAMIA SOCIETY Sched — 2024 PLD 489 SUPREME-COURT

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ANJUMAN GHULAMAN MUSTAFA VS DARUL ISLAMIA SOCIETY Sched. I, art. 181---Civil Procedure Code (V of 1908), S. 115---Execution petition, filing of---Limitation---Commencement of period of limitation---Principles---In the present case, the decree of the Court of first instance was first challenged in appeal and then in revision before the High Court---after exhausting all statutory remedies under the Code of Civil Procedure, 1908, none of the parties considered it appropriate to avail of constitutional remedy before the Supreme Court---In such a situation, 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---In light of this principle, the application, brought by the decree-holder/respondent for the execution of the decree cannot be held to be barred by time---If the decree/order passed in revision had been challenged by filing a petition for leave to appeal before the Supreme Court, the position would have been different, and the period of limitation would have been governed by the principle laid down in the case reported as Bakhtiar ahmed v. Mst. Shamim akhtar and others (2013 SCMR 5), which expounds that unless the Supreme Court stays the proceedings of the decree or converts the petition into an appeal, the period of limitation cannot be deemed to have been clogged---Merely filing a petition for leave to appeal does not automatically extend the time for filing an execution application---However, if the leave is granted, the petition is converted into an appeal and allowed, in which case, the order of the Supreme Court will merge into the order of the lower forums and, thus, the period of limitation will start from the order of the Supreme Court---Since, in the case under consideration, the remedy before the Supreme Court was not availed of, the precedent of Bakhtiar ahmed v. Mst. Shamim akhtar and others (2013 SCMR 5) does not apply to it---Petition was dismissed and leave was declined.

ANJUMAN GHULAMAN MUSTAFA vs DARUL ISLAMIA SOCIETY Sched — 2024 PLD 489 SUPREME-COURT

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