IN THE SUPREME COURT OF PAKISTAN 
 
    (Appellate Jurisdiction) 
 
 
 
 
 
 
 
 
Present 
 
 
 
 
 
Mr. Justice Anwar Zaheer Jamali 
Mr. Justice Dost Muhammad Khan 
 
 
 
 
Mr. Justice Umar Ata Bandial 
 
CIVIL APPEAL NO. 2352 OF 2008  
(On appeal from the judgment/order dated 05.11.2003 passed  
by Lahore High Court, Lahore in FAO No. 189 of 1994)  
 
 
United Bank Limited  
 
 
… 
… 
Appellant.  
 
 
 
 
Versus 
Fateh Hayat Khan Tawana & others … 
… 
Respondents.  
 
 
For the appellant  
: 
Ms. Raisa Sarwat, ASC.   
 
For respondents (5&6) 
: 
Syed Najamul Hassan Kazmi, ASC. 
 
Respondents (1-4, 7, 8) 
: 
Ex-parte. 
 
Date of hearing  
 
: 
13.04.2015. 
 
 
 
 
 
 
JUDGMENT 
 
UMAR ATA BANDIAL, J. – By order of this Court dated 
26.12.2008 leave to appeal was granted to examine whether a second 
execution application filed on 16.01.1989 by the appellant during the 
pendency of its first execution application for the enforcement of a 
money decree dated 20.01.1981 suffers a time bar under Section 48 
CPC read with Article 181 of the Limitation Act, 1908?  
2. 
 
Briefly stated the facts of the case are that an ex-parte 
judgment/decree was passed on 20.01.1981 by a learned Special 
Judge Banking in favour of the appellant and against the 
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2 
respondents/judgment debtors for the amount of Rs.4.205177 
million together with costs in the sum of Rs.35,127/-. The first 
execution application for the enforcement of the said decree was 
filed by the appellant on 27.06.1983 before the learned High Court 
under the Banking Companies (Recovery of Loans) Ordinance, 1979 
(“Ordinance”). That application was registered and numbered as 
Ex.A.7-B/1983. Another application by the appellant seeking 
attachment of properties in the said execution proceedings was 
withdrawn at its first hearing vide order dated 23.11.1983 to “make 
an appropriate application after seeking proper instructions from his 
client.” The main execution application bearing Ex. A.7-B/1983, 
however, continued to remain pending.  
3. 
 
On 16.01.1989, the appellant filed an application under 
Order XXI Rule 11 CPC read with Section 8(3) of the Ordinance 
containing updated particulars for execution of the aforementioned 
decree dated 20.01.1981. This application mentions its file number as 
Ex.A. 7-B/1983 and refers the contents of the order dated 23.11.1983, 
allowing the appellant to file an appropriate application after 
seeking instructions from the client (decree holder). Its contents add 
accrued interest of Rs.6.268 million to the outstanding amount 
payable under the decree and attaches revenue record of properties 
subject 
to 
attachment 
and 
realization 
pursuant 
to 
the 
aforementioned decree. Thereafter, the order of the Court dated 
07.02.1989 passed in the first execution application bearing 
CA.2352/2008 
3 
Ex.A.No.7-B/1983 records the following statement by the learned 
counsel for the appellant: 
“7.2.1989 
Mr. Ayyaz Hassan, Adv. For the decree holder. 
States that the decree holder-Bank has filed a fresh 
Execution Application giving all the details of the 
properties sought to be attached and sold in 
execution of the decree and therefore this Ex. 
Application may be consigned to record. Order 
accordingly.“  
  
4. 
 
Simultaneously, the learned Executing Court on 
07.02.1989 issued notice to the respondents/judgment debtors in the 
above mentioned second execution application which was, however, 
registered and numbered by the office as Ex.A.1-B/1989. In reply 
thereto, the respondents/judgment debtors filed objections.  The 
first of these is that the second execution application filed more than 
8 years after the passing of the decree under execution is time barred 
in terms of limitation period provided in Section 48 CPC read with 
Article 181 of the Limitation Act, 1908. Meanwhile, the pecuniary 
jurisdiction of the Banking Court was enhanced; accordingly the 
said execution matter was transferred to the said Court. The learned 
Banking Court at the outset took up for adjudication the objection of 
limitation raised by the respondents/judgment debtors. Vide order 
dated 14.07.1994, the Banking Court held that the pending execution 
proceedings of decree dated 20.01.1981 were time barred. The view 
taken by the learned Special Judge Banking, Lahore was affirmed by 
the learned High Court in exercise of its appellate jurisdiction vide 
judgment dated 05.11.2003. That judgment is presently impugned 
before us in this appeal.  
CA.2352/2008 
4 
5. 
 
It is a common ground between the parties that the 
limitation period for filing the first execution application of a money 
decree passed by a Court of original jurisdiction is three years from 
the date of the decree under the residuary Article 181 of the 
Limitation Act, 1908. Therefore, the first execution application 
submitted by the appellant bearing No.7-B/1983 is admittedly filed 
within time. However, both the learned Courts below have taken the 
view that the second application filed by the appellant on 16.01.1989 
is, according to its own terms, a “fresh” execution application. 
Having been filed beyond the period of six years prescribed in 
Section 48 of the CPC, this application has been held to be time 
barred. Both sides rely on the judgment given by this Court in 
Mahboob Khan    vs.   Hassan Khan Durrani (PLD 1990 SC 778) to 
canvas their opposing stands on the said finding. The whole 
controversy revolves around the meaning of the expression “fresh 
application” used in Section 48 of the CPC in the context of a second 
execution application being filed by the appellant during the 
pendency of its first execution application.   
6. 
 
The learned counsel for the appellant contends that the 
second application was filed bearing the same number Ex.A.7-
B/1983 that is given to the first application but it was registered by 
the office and wrongly assigned a new number Ex.A.1-B/1989. This 
application is filed in continuation of the original execution 
application and contains, inter alia, updated particulars of the 
properties subject to attachment in terms of the order dated 
CA.2352/2008 
5 
23.11.1983 by the learned Executing Court. Since the original 
application was filed within time, therefore, the additional 
particulars contained in the second execution application filed on 
16.01.1989 are in elaboration of and ancillary to the first application. 
Therefore, the impugned finding that the execution proceedings of 
decree dated 20.01.1981 are time barred is erroneous.  
7. 
 
On the other hand, the contention on behalf of the 
respondents/judgment debtors is that the contents of the para-5 of 
the second execution application by the appellant acknowledge the 
withdrawal of the first execution application. Also, the order dated 
07.02.1989 passed in Ex.A.7-B/1983 records the statement of the 
counsel for the appellant that a fresh execution application has been 
filed and consequently the only application in the field is the second 
execution application filed by the appellant.  
8. 
 
During the course of hearing it became apparent that 
the impugned judgments have treated the order dated 07.02.1989 
passed in Ex.A.7-B/1983, consigning the said application to the 
record as amounting to disposal of such application. To fortify this 
view the learned counsel for the respondents/judgment debtors has 
relied on Muhammad Yaqoob   v.   Qudsia Kishwar (1988 MLD 
1379). In the facts of that case, the expression “consigned to record” 
has been interpreted to mean “dismissal for non-prosecution.” It is 
clear in the present case that the second execution application was 
filed on 16.01.1989 during pendency of the first execution 
application. The order sheet in Ex.A.7-B/1983 does not record any 
CA.2352/2008 
6 
default by the appellant in complying any judicial order. Therefore, 
the consignment to record of Ex.A.7-B/1983 vide order dated 
07.02.1989 cannot be presumed to be its dismissal for non-
prosecution or disposal otherwise. Accordingly, the precedent relied 
by the respondents has no relevance to the present case.  
9. 
 
Significantly, the terms of the order dated 07.02.1989 are 
amenable also to the rival interpretation given to it by the appellant. 
It is urged that the said order of the learned Executing Court treats 
the second execution application to be a substitute or a continuation 
of the first execution application. This is because the second 
application contains better particulars for the already prayed mode 
of execution of the decree. Accordingly, the learned Executing Court 
has consigned the first application to record and proceeded with its 
substitute. The argument has some force. The question of time bar is 
not considered by the order dated 07.02.1989. It arose for 
determination after the respondents/judgment debtors were issued 
notices on the second execution application. Whilst examining that 
objection, the learned Courts below were obliged to consider 
whether the first execution application could at all be terminated 
without an order dismissing or disposing of the same. This aspect of 
the matter was ignored on the presumption that the consignment of 
an application to the record amounts to its dismissal. The fact is that 
in the absence of a clear order disposing of the first execution 
application there is no justification for treating the proceedings 
CA.2352/2008 
7 
therein to have been concluded. The fate of an execution proceeding 
in similar situations is explained by a learned full Bench judgment of 
the High Court of Sindh in Amir Begum    vs.   Mir Fateh Shah 
(PLD 1968 Karachi 10) wherein Wahiduddin J. (as he then was) 
opined as follows: 
“… It is a well settled rule of law that an execution application 
must be deemed to be pending so long as no final order disposing 
it of judicially has been passed thereon. A subsequent application 
in such a case for execution will be deemed to be one merely for 
the continuation of the original proceedings. In this connection 
the Privy Council in Qamar-ud-Din Ahmed   vs.   Jawahirlal (32 I A 
102) observed as under:-- 
“Their Lordships are of opinion that the execution 
proceedings commenced by the petition of the 24th 
August 1888 were never finally disposed of and 
that the application now under consideration was 
in substance, as well as in form, an application to 
revive and carry through a pending execution, 
suspended by no act or default of the decree-
holder, and not an application to initiate a new 
one.” 
…. 
This principle has also been applied in cases where the 
application is dismissed or struck off or consigned to the record 
room or returned. Such order is not to be regarded as finally 
disposing of the petition and a subsequent application will be 
regarded as one of revival and continuation of the original 
proceedings. …”(underlining supplied). 
 
10. 
 
The judgment in Mahboob Khan’s case ibid is relevant 
in laying down that where the first execution application has been 
filed within a period of three years from the date of decree under 
execution, then any fresh application for execution of the said decree 
may be filed within a period of six years from the date of the said 
decree. According to the said judgment a fresh application is 
CA.2352/2008 
8 
conceived to be filed “after disposal of the first execution 
application.” Therefore, an application that is filed during the 
pendency of a timely first execution application cannot be 
considered a ‘fresh application.’ This is because it elaborates or 
amends the pending first execution application. For that reason the 
subsequent application is liable to be treated as a continuation of or 
ancillary to the pending execution application. In such a case, quite 
obviously the objection of limitation cannot have any relevance.  
11. 
 
On the other hand, when a subsequent execution 
application has been filed after the disposal of the first execution 
application, the objection of limitation may be relevant.  However, 
even in such a case, the subsequent execution application may 
survive notwithstanding its belated institution beyond six years 
after the decree under execution, if it satisfies the test and criteria of 
amendment of a previously disposed of execution application that 
had been filed timely. In such event, the subsequent application 
shall be treated as a continuation of or ancillary to the decided 
execution application. In the present case, the first execution 
application has not been disposed of by a judicial order. Therefore, 
the second execution application filed on 16.01.1989 should 
plausibly be treated as a continuation thereof or ancillary thereto. 
Indeed, for ascertaining the legal status and effect of proceedings 
before a Court of law, it is the content and meaning of judicial orders 
about such proceedings that are determinative and not the 
CA.2352/2008 
9 
description or name given to the proceedings by a party thereto. 
Therefore, in the light of the legal position of the pending execution 
proceedings in the present case, the descriptions given thereto by the 
appellant or its learned counsel are inconsequential.     
12. 
 
For the forgoing discussion, we allow this appeal. The 
subsequent execution application filed by the appellant shall be 
deemed to be pending before the learned Executing Court which 
shall decide the same on merits but subject to the outcome of any 
other 
preliminary 
objection 
already 
taken 
by 
the 
respondents/judgment debtors to the executability of the decree 
dated 20.01.1981. No order as to costs.        
 
 
 
 
 
 
 
 
 
J. 
 
 
 
 
 
 
 
 
 
 
J. 
 
 
 
 
 
 
 
 
 
 
J. 
Islamabad,  
13.04.2015. 
Irshad Hussain /* 
 
 
 
APPROVED FOR REPORTING.  
