2010 C L C 1440
[Quetta]
Before Mrs. Syeda Tahira Safdar, J
BIBI SHAH GUL ---Petitioner
Versus
SAADIA and 7 others ---Respondents
Civil Revision No.100 of 2009, decided on 20th April, 201 0.
Civil Procedure Code (V of 1908) ---
----S. 47, O.XXI, Rr. 10 & S. 23 -A---Specific Relief Act (I of 1877), Ss. 8 & 42 ---Suit for
declaration, correction of record and possession ---Execution of decree ---Objection to ---Suit
filed by the plaintiff h aving concurrently been decreed in his favour by the courts below, he
filed application for execution of decree to which objections were raised by
defendants/judgment -debtors ---Under Section 47, C.P.C., it was the court executing the
decree to determine th e questions arising between the parties to the suit relating to the
execution, discharge or satisfaction of decree and no separate suit was required to be filed ---
During pendency of application for execution of decree no objection was raised from the side
of judgment -debtors, despite having full knowledge about the same ---Application was filed
by the plaintiff/decree -holder during course of proceedings for execution wherein certain
khasra numbers were mentioned and notice of said application was given to th e judgment -
debtors who failed to contest the same ---Mentioned khasra numbers were the same which
were mentioned in the plaint, which were subject -matter of the decree ---Judgment -debtor had
failed to point out her grievance and was unable to specify that as to how the whole property
was mutated in favour of the decree -holder, while the report of Civil Nazir showed to the
contrary ---Judgment -debtor had further failed to specify the exact measurement of property
in decree and respective shares of the parties, specifically of her own ---In the absence of any
merits in the revision petition, same was dismissed and impugned orders of the courts below
were maintained.
Khushnood Ahmed for Petitioner.
Habib Tahir for Respondent No.1.
Respondents Nos. 2 to 8 Ex parte.
Date of hearing: 28th October, 2009.
JUDGMENT
MRS. SYEDA TAHIRA SAFDAR, J. ---The petitioner being aggrieved of order dated 16 -5-
2008 made by Senior Civil Judge -I, Quetta and order dated 28 -2-2009 made by Additional
District Judg e-III, Quetta, whereby the objections filed by her were rejected and her appeal
was also dismissed, preferred present petition with contention that both the orders are
contrary to law and facts. Further, the executing court cannot go beyond decree as full
property has been mutated in name of respondent No.1, which is in excess to her share. There
is misreading and non -reading of available record. Moreover, respondent No.1/plaintiff was
only entitled for her share as per sharia and also as per order of Honor able Supreme Court, as
such she was only entitled for half share of the property mentioned in the plaint. The said
property measured `4488 square feet, out of which an area of 3300 square feet is mutated in
favour of respondent No.1, while the remaining re spondents were given an area of 1180
square feet. But contrary to decree she (petitioner) has not given any property. Respondent
No.1 has taken property of her own choice and left less valuable property for the judgment
debtors. As such the execution proce edings are made in violation of the decree. The appellate
court has also not considered these aspects. She has prayed for setting aside of impugned
orders, while case be remanded with direction that the objections filed by her and respondents
Nos.2 to 4 be decided, whereafter, decree be executed in accordance with judgment and
decree.
The perusal of record reveals that a suit was filed by respondent No. 1/ plaintiff for
declaration, correction of record and possession by means of partition. She claimed herself to
be real daughter of Noor Muhammad, as such being his legal heir claims her right of
inheritance in left over properties by him. It is her contention that petitioner and respondents
No.1 to 4/defendants Nos. to 4 being brother and sisters of said Noor Muhammad and
defendants Nos.5 to 7 got mutated all of his property in their names, depriving her of her
legal right. Written statements were filed by all the defendants thereby denied her title.
During course of trial through order dated 13 -8-2001 de fendants Nos. 5 and 6 were deleted
being not the necessary party. In reply the petitioner and respondents Nos.2 to 4/defendants
denied the status of respondent No.1/ plaintiff. According to them said Noor Muhammad died
issueless on 10 -11-1998, as such bein g his brother and sisters, the property was mutated in
their names being his legal .heirs, while some property was mutated in the name of
respondent No.7/ defendant No.7 namely Khan Muhammad on the pretext that property was
given to him by WILL executed by Noor Muhammad in his. favour. On conclusion of trial
the suit was decreed through judgment made on 24 -10-2003 by Senior Civil Judge -I, Quetta
in terms: --
"The plaintiff is entitled to her half share from the property No.1 mentioned in the plaint as
per sharai share i.e. 1/2 of the said property, while she is not entitled to get any share from the
property mentioned at serial No.3. In view of this discussion, the suit is hereby partly decreed
in favour of the plaintiff."
Both the parties feeling agg rieved of the judgment -decree preferred appeals, which were
decided by the appellate court through consolidated judgment made on 8 -6-2004, whereby
the appeal filed by respondent No.1 Sadia was accepted, while appeal filed by petitioner and
respondents Nos. 2 t to 7 were dismissed. It was ordered:
"(i) It is declared that appellant/plaintiff Sadia is entitled for the half share in the property
bearing inteqal No.307 khasra No.496, measuring 764 square feet, Mohal and Mouza Ward
No.38, Quetta, Urban, as le gal heir of late Noor Ahmed;
(ii) WILL Ex:D/1 dated 19 -12-1998, is a false and forged document, it has been executed
through fraud, misrepresentation, which is cancelled hereby;
(iii) It is declared that Ex:P/2, which is a mutation with regard to p roperty bearing khasra
No.496, measuring 764 square feet Mohal and Mouza Ward No.38, Quetta, Urban was
entered on the basis of forged document i.e. WILL is cancelled hereby and is ordered to be
mutated in the name of Noor Muhammad son of Haji Abdullah Jan and then half of it be
mutated on the name of appellant/ plaintiff Sadia daughter of late Noor Muhammad to the
extent of half of her share and rest of the property be recorded in the record of rights in the
name of rest of the legal heirs respondents/ defe ndants Habibullah, Bibi Shah Gul, Bibi
Dilbar, Bibi Zaib -un-Nisa according to their shares."
Still feeling aggrieved of order of appellate court petitioner and respondents Nos.2 to 7 filed
petition before this court seeking revision of order of appella te court, which was decided
through order made on 14 -12-2005, whereby accepting the petition the judgment of appellate
Court was set aside, while the judgment and decree of the trial court was restored. The
petition filed by Mst. Sadia was decided by the h onourable Supreme Court through order
dated 25 -4-2006, thereby ascertained the right of respondent No.7.
It is further apparent from record that respondent No.1/ decree holder filed application for
execution on 8 -5-2006. The matter was processed, while as per report of Civil Nazir of the
court dated 9 -6-2006 the property in question was partitioned as per shares of both the
parties. Another report was made by Halqa Patwari bearing date 17 -8-2007, whereby the
property in question as per decree was got mu tated in record in the name of decree -holder
Mst. Sadia. The said mutation entry is also present on record. On receiving of the same the
court through order dated 21 -8-2007 consigned the execution application to record holding
thereby that the decree has b een executed. It is further apparent from record that thereafter,
on 25 -9-2007 objections were filed on behalf of judgment debtors. These objections were
rejected through order dated 16 -5-2008 by the executing court holding therein that as the
decree has a lready been executed, while judgment debtors failed to explain the factual
position. Still feeling aggrieved of the same the judgment debtors filed appeal, which was
decided by the appellate court through order made on 28 -2-2009, holding therein that
execu tion proceedings are lawfully completed, thus no interference is required.
Through instant petition the petitioner sought setting aside of impugned orders and remanded
the case to executing court for deciding the objections filed by them at first insta nce,
whereafter, proceedings be held for execution of decree. The perusal of record reveals that
initially the suit was decreed in favour of respondent No.1 through judgment made on 24 -10-
2003 by the trial Court. The appeal filed by the respondent No.1 was accepted, while the
appeal filed by petitioner and respondents Nos.2 to 7 was rejected through order dated 8 -6-
2004. But this Court through order made on 14 -12-2005 while accepting the revision petition
set aside the order of appellate court, while upheld the order of trial court. The Honorable
Supreme Court through order made on 25 -4-2006 upheld order of this court. Thus in view of
the same the property as mentioned at serial No.1 in the plaint is the property against which
the decree is made which is req uired to be executed to same extent. The record further reveals
that execution application was filed on 8 -5-2006, while the judgment debtors were served,
who were represented by a counsel. The process were issued and steps were taken for
partition and muta tion of decreed property. While it is apparent from record that as the
judgment debtors failed to appear, thus proceeded ex parte through order made on 25 -6-2007.
Whereafter, on effecting of entries in Revenue Record the execution application was filed,
holding thereby that execution of decree has been completed. It is rightly noticed by the
appellate Court that during pendency of application for execution of decree the judgment
debtors were represented by the counsel, while no objection of any sort was rai sed by them
and after completion of execution proceedings they filed objections on the same. As per
section 47, C.P.C., it is the court executing the decree to determine the questions arising
between the parties to the suit relating to the execution, disch arge or satisfaction of the
decree. In such case no separate suit is required to be filed. It is an admitted position that
during pendency of application for execution of decree no objection was raised from the side
of judgment debtors, despite having full knowledge about the same. It is further to be noted
that during course of proceedings for execution an application was filed by the decree holder/
respondent No.1 on 30 -5-2007, wherein certain khasra numbers are mentioned, notice of this
application was g iven to the judgment debtors, who failed to contest the same. It is further to
be observed that the mentioned khasra numbers are the same as mentioned in the plaint in
respect of property mentioned at serial No.1, which is the subject matter of the decree.
Furthermore, the Civil Nazir of the trial court also submitted report dated 9 -6-2006, counsel
for both the parties were present and they were directed to get partitioned the property with
consent, so that property be mutated in their names. Despite having knowledge of the
proceedings and being represented by the counsel the judgment debtors including the present
petitioner never raised any objection.
The petitioner and respondents Nos.2 to 7 never objected the proceedings held by the court
executing th e decree, nor contested the application filed on 30 -5-2007. The petitioner along
with remaining judgment debtors was in knowledge of pending of the execution application
and the proceedings held thereon, but not raised objections during pendency of the sam e.
Even after filing of objections they remained absent and did not pursue the matter. Their
conduct is apparent from record; rather only on rejection of the same they approached the
appellate court by way of filing appeal. But after dismissal of appeal on ly one of them Mst.
Bibi Shah Gul filed instant petition. They slept over their right and at present there is no
occasion to interfere in the proceedings already held by the court empowered to execute the
decree. Apart from the same the petitioner has fail ed to point out her grievance, she is unable
to specify that how the whole property is mutated in favour of the decree holder, while the
report of Civil Nazir is showing the contrary. She further failed to specify the exact
measurement of property in decre e and respective shares of the parties, specifically of her
own.
In view of above discussion there seems to be no merits in the petition, which is hereby
dismissed. The impugned orders dated 16 -5-2008 made by Senior Civil Judge -I, Quetta and
order date d 28-2-2009 by Additional District Judge -VI, Quetta are hereby upheld.
Parties are left to bear their own costs.
H.B.T./48/Q Petition dismissed.This judgment is reproduced from a publicly available source for informational purposes and does not constitute legal advice. If you believe this listing contains an error,
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