2012 M L D 1856
[Balochistan]
Before Mrs. Syeda Tahira Safdar, J
ABDUL HABIB ---Petitioner
Versus
FAZAL MUHAMMAD and 2 others ---Respondents
Civil Revision No.277 of 20 10, decided on 31st July, 2012.
(a) Civil Procedure Code (V of 1908) ---
----Ss. 2(2)(9) & 33 ---Judgment or decree, execution of ---Scope ---Execution would always
be of a decree and not of judgment, thus, decree in a suit must always be in terms of
judgm ent made therein.
(b) Civil Procedure Code (V of 1908) ---
----Ss. 2(2)(9), 33, 47, 51, 115, O. XIV, R. 1, O. XX, R. 6 & O. XXI, R. 11 ---Specific Relief
Act (I of 1877), Ss. 8, 42 & 54 ---Suit for declaration, possession and permanent injunction ---
Judg ment and decree passed in plaintiff's favour by Trial Court not finding mention relief of
recovery of possession of suit property, except relief of declaration of plaintiff's title thereto
and injunction ---Execution application for recovery of possession o f suit property ---
Objection petition by defendant that such decree was not executable ---Order of Executing
Court rejecting objection petition upheld by Appellate Court ---Validity ---Execution of
decree would always be of a decree and not of judgment, thus, decree in a suit must always
be in terms of judgment made therein ---Trial Court had erred in not framing issue regarding
recovery of possession of suit property, whereas defendant had claimed to be in its
possession ---Trial Court had declared plaintiff to be owner of suit property and restrained
defendant from interfering into business and property of plaintiff ---Relief of possession,
though specifically claimed in plaint, did not find mention in impugned judgment, thus, its
granting could not be inferred, rather its disallowing would be presumed --Executing Court
during execution proceedings could neither go behind decree nor grant a relief, which was
not granted in judgment ---Impugned judgment had attained finality for not having been
challenged by eithe r party ---Impugned decree was not enforceable to the extent of recovery
of possession of suit property ---High Court set aside impugned order and dismissed
execution application for not being maintainable.
Province of Punjab v. Ghulam Rasool 1990 SCMR 11 06; Maj. (Retd.) Mahmood Hussain v.
Habib Bank Ltd. 2001 CLC 2016; Fakir Abdullah v. Government of Sindh PLD 2001 SC 131
and Allah Ditta v. Ahmed Ali Shah 2003 SCMR 1202 ref.
(c) Civil Procedure Code (V of 1908) ---
----S. 152 ---Relief claimed in suit n ot finding mention in judgment and decree ---Effect ---
Relief granted in judgment, if omitted from decree, could be included by way of amendment
of decree ---Relief claimed in suit, if not mentioned in judgment specifically, could not be
entered in decree und er S. 152, C.P.C. as its decline would be presumed.
(d) Civil Procedure Code (V of 1908) ---
----S.47---Executing Court, powers of ---Scope ---Executing Court during execution
proceedings could neither go behind decree nor grant a relief not granted in judgment ---
Principles.
Executing Court during the course of execution of a decree has to adopt the procedure
provided in Civil Procedure Code, 1908 thereby adopt any provided procedure to assist the
decree holder in execution of a decree existed in his f avour. During course of the execution,
the court is fully empowered to determine as to how, and to what extent and in what manner a
decree shall be executed. But doing so the court has to observe the terms in which has been
passed. A relief not granted the rein cannot be granted during course of execution.
The court during course of execution cannot go behind the decree.
Behadur Khan for Petitioner.
Mushtaq Anjum for Respondents.
Date of hearing: 30th March, 2012.
JUDGMENT
MRS. SYEDA TAHIRA SAFDA R, J. ---Being aggrieved of the order dated 31st December
2009 of Civil Judge -1, Quetta whereby the petitioner was directed to hand over the vacant
possession of property in question to respondent No.1 and order dated 13th May 2010 of
Additional District Ju dge-IV, Quetta, whereby the appeal preferred against the order was
dismissed instant petition was filed. The petitioner assailed both the orders on grounds that
the trial court while deciding the case through judgment, and decree dated 31st July 2008 did
not make any direction for handing vacant possession of suit property to respondent No.1. It
was contended that due to the fact he (petitioner) opted not to challenge the judgment. But
respondent No.1 filed an execution application thereby sought execution of decree to the
extent of relief of possession. Feeling aggrieved an objection petition was filed, which was
refused by the court executing the decree. Further, there was misappreciation of the law, and
due to misapplication of judicial mind a decision ar rived by the courts below in contravention
of relevant law. Furthermore, the fact that the suit property was a joint property being owned
by him (petitioner) along with respondent No.1, and their late brother, failed to gain due
consideration of the courts below. It was further contended that a civil suit bearing No.37 of
1996 was filed by respondent No.1, which was decided by Additional District Judge -IV,
Quetta, through order dated 2nd May 1997, whereby respondent No.1 was restrained from
claiming any rig ht or title in respect of the suit property with further direction not to involve
the defendants including the present petitioner, and his other brothers, and cousins in any
litigation in respect of the suit property. But this fact was not duly considered by the courts
below, which resulted into an erroneous decision, which is not sustainable. It was prayed that
the orders of the courts below be set aside, and the objection petition be accepted, and the
execution application filed by respondent No.1 be dism issed being not maintainable.
2. The learned counsel for the petitioner while advancing arguments in support of his
case was of the view that the judgment of the trial court dated 31st July 2008 failed to fulfil
the legal requirements as envisaged in Ord er-XX Rules 6 & 9 Civil Procedure Code (CPC). It
was further contended that the decree passed in favour of respondent No.1 failed to speak
about relief of handing over of vacant possession, despite the same execution application was
filed with prayer of po ssession, which in no way can be granted to him. The learned counsel
referred to section 51, C.P.C. with further reference to Order XX Rule 6, C.P.C., thereby
contended that the court has full powers to execute a decree, but the decree must be in terms
as allowed in the judgment. It was contended that the requirement of the law was not
fulfilled; therefore, the decree cannot be enforced. It was further his argument that as there
was no relief of possession granted in the judgment, nor the decree contained any order to the
effect, therefore, by way of filing an application for execution of decree, possession cannot be
obtained. The learned counsel placed reliance on: --
Province of Punjab v. Ghulam Rasool 1990 SCMR 1106
It was further his argument that t he court cannot go behind/ beyond the decree. Further
contended that in the circumstances decree made in the suit cannot be enforced. It was argued
that respondent No.1/ plaintiff failed to approach the court for correction of the decree at
relevant time. Therefore, after lapse of considerable period, no order to the effect can be
obtained. In reply it was argument of the learned counsel for the respondent No.1 that the
judgment had already attained finality, therefore, it cannot be challenged at this stage . It was
further contended that the amended plaint was filed, wherein the relief of possession was
inserted. He referred to section 47, C.P.C. The learned counsel referred to: --
Maj (Retd) Mahmood Hussain v Habib Bank Limited CLC 2001 Page 2016
Fakir A bdullah v Government of Sindh PLD 2001 SC 131
It was further argument of the learned counsel that the trial court made declaration of
ownership in favour of him (respondent No.1) with further declaration that the respondent
No.2 had no concern with prop erty in question. The order was made in clear terms.
Therefore, on basis of this declaration he became entitled for possession of the suit property.
The learned counsel further argued that the omission was on part of the court; therefore,
suffering must no t be on part of the respondent No.1. The learned counsel referred to Allah
Ditta v. Ahmed Ali Shah, 2003 SCMR 1202. Thereby concluded his arguments that the
executing court was fully empowered to make order to the effect, and take steps for
restoration of possession to the decree holder. Further, in presence of concurrent findings of
the courts below on facts no contrary view can be taken by this court. In reply to the
arguments the learned counsel for the petitioner only contended that the legal requireme nts of
filing an execution application was not fulfilled, therefore, the execution proceedings were
not maintainable.
3. The brief facts of the case, as appeared from the material on record, are that
respondent No.1 Fazal Muhammad filed a suit seeking de claration of his title in respect of a
landed property along with a restraint order against the defendants including the present
petitioner. In addition possession of the disputed property was also claimed. The suit was
contested, which was finally decided on completion of the proceedings by the trial court
through judgment dated 31st July 2008, whereby the relief was granted in terms: --
"Since the above imperative issue No.2 resolved in affirmative, wherein the plaintiff
successfully proved his ownership over the disputed property, therefore, the instant issues are
also resolved in affirmative, the suit of plaintiff is decreed in favour and against the
defendants, further defendants Nos.2 and 3 are permanently restrained not to interfere in the
business o f defendant No.1 and property of the plaintiff."
None of the parties preferred appeal against the order. But later in time an application was
filed by respondent No.1/decree holder seeking execution of the decree with the prayer: --
The present petition er being defendant No.2/one of the judgment debtors objected the
execution application by raising contention that the execution application was not
maintainable, and the decree holder sought relief thereby behind the judgment, and decree
passed by the tria l court. It was contended that the terms, in which the decree had been
passed, unable to be executed; therefore, the application was liable to be dismissed. This
application was contested by the decree holder i.e. respondent No.1, which was decided
through order dated 30th December 2009. The court executing the decree dismissed the
objections while holding:
It is apparent from the contents of the order that the court below not only rejected the
objections, but thereby directed for issuance of process of h anding over of the possession of
the disputed property to the decree holder. Feeling aggrieved of the order an appeal was
preferred by the petitioner, which was decided by the appellate court through order dated
13th May 2010, thereby arrived to the conclu sion that: --
"The appellant/judgment debtor by twisting the facts available on record that no direction for
handing over possession of the suit property to the respondent No.1, decree holder was made
by the trial court, therefore, the order impugned here in is beyond the decree. Actually the
entire suit filed by the respondent/ decree holder was decreed by resolving the issues in his
favour by the trial court and now the learned executing court has rightly passed the order
impugned herein for handing over the property in dispute to the respondent No.1/decree for
the satisfaction of judgment/ decree dated 31 -7-2008."
Feeling aggrieved instant petition has been filed.
4. From the whole set of the evidence, and the material on record it is evident that
respondent No.1 filed a suit whereby he not only sought declaration of his title with a
restraint order in shape of permanent injunction, but also sought for possession of the
questioned property. In rebuttal the petitioner being one of the defendants not o nly denied the
title as claimed, but also contested the remaining plea taken by respondent No.1. On
conclusion of trial the suit was decreed by the trial court in terms as reproduced hereinabove.
It was observed that the trial court though made declaration to the effect that respondent
No.1/ plaintiff was owner of the property in question and thereby decreed the suit in his
favour with a restraint order not to make interference in the business of defendant No.1, and
the property of the plaintiff. The terms in which relief was allowed contained no specific
relief pertaining to grant of possession. But later in time respondent No.1 filed an application,
for execution of the decree, with a specific prayer for handing over of possession to him,
being the decree holder with the help of Civil Nazir, and concerned Station House Officer
(SHO).
5. Keeping in view the fact of filing an application for execution of decree, the question
in hand would be whether the decree made in favour of respondent No.1 in terms pro vided
therein can be enforced against the petitioner. As matter pertains to execution of decree,
therefore, reproduction of definitions of Decree and judgment would be helpful. Section 2
subsections (2) and (9), C.P.C. define Decree and Judgment, which rea ds as under:
"(2) "decree" means the formal expression of an adjudication which, so far as regards the
Court expressing it, conclusively determines the rights of the parties with regard to all or any
of the matter in controversy in the suit and may be ei ther preliminary or final. It shall be
deemed to include the rejection of a plaint the determination of any question within section
144, and an order under Rules 60, 98, 99, 101 or 103 of Order XXI but shall not include ---
(a) any adjudication from which an appeal lies as an appeal from an order, or
(b) by order of dismissal for default.
Explanation. ---A decree is preliminary when further proceedings have to be taken before the
suit can be completely disposed of. It is final when such adjudication com pletely disposes of
the suit. It may be partly preliminary and partly final."
"(9) Judgment" means the statement given by the judge of the grounds of a decree or
order:"
In addition thereto section 33, C.P.C. described the terms in which decree is to b e prepared.
The section reads as under: --
"33. Judgment and decree. ---The Court, after the case has been heard, shall pronounce
judgment and on such judgment a decree shall follow."
Therefore, a decree in a suit always be in terms in which the judgment has been made.
Because, execution is always of a decree so made, but not of the judgment. Rule 6 of Order
XX, C.P.C. is also relevant to understand the distinction between, the two. It is described the
contents of a decree, therefore, reproduction of the Rule will be helpful:
"6. Contents of decree. --(1) The decree shall agree with the judgment; it shall contain the
number of the suit, the names and description of the parties, and particulars of the claim, and
shall specify clearly the relief granted or other determination of the suit.
(2) The decree shall also state the amount of costs incurred in the suit, and by whom or
out of what property and in what proportions such costs are to be paid.
(3) The Court may direct that the costs payable to one par ty by the other shall be set -off
against any sum which is admitted or found to be due from the former to the latter."
6. Keeping in view these legal provisions matter in hand is to be considered. In present
case admittedly the plaintiff/ respondent No.1 in his suit while claiming his title with a
restraint order, also sought for possession of the questioned property. But it is noted that
during course of trial no issue to the effect of possession was framed by the trial court,
despite the fact that the de fendants not only denied the title, but also claimed to be in
possession of the suit property. It was an error on part of the trial court. Rather, issue No.1 as
framed, pertains to the legal objections raised in the written statement. While issue No.2 was
in respect of ownership of the property in question. As far as issues Nos.3 and 4 were
concerned, they pertain to relief, and entitlement of the plaintiff for grant of relief. The only
issue decided in favour of the plaintiff/respondent No.1 was issue No.2 i.e. ownership. He
was declared owner of the suit property. But while deciding remaining issues the court below
only allowed the suit thereby held that the plaintiff i.e. respondent No.1 was owner of the suit
property. But in addition thereto a specific r elief was granted in terms that "defendants Nos.2
and 3 are permanently restrained not to interfere into the business of defendant No.1 and
property of plaintiff". The judgment contained relief in specific terms, but the relief of
possession found no place therein. The decree followed the judgment also contained no order
to the extent of possession. Despite this omission the respondent No.1/decree holder applied
for execution of decree thereby prayed for possession, which was objected by the petitioner.
At present issue in hand is whether the decree passed in favour of respondent No.1 can be
executed or otherwise.
7. To resolve the controversy it is to be considered that a relief claimed in the suit, if not
specifically granted by the trial court while rec ording judgment, what would be its effect. The
court is fully empowered to correct or amend judgment, decree or order as provided in
section 152, C.P.C. Therefore, if a relief granted in judgment omitted from decree can be
included by way of amendment of d ecree. But if a relief though had been claimed in a suit,
but not mentioned in the judgment it cannot be entered in decree while exercising powers
under section 152, C.P.C. Because, the judgment failed to contain any order to the effect,
with a presumption of decline.
8. In case in hand though possession was claimed by the plaintiff/ respondent No.1 in his
suit, but the judgment dated 31st July 2008 failed to contain any relief to the effect. But in
view of observations that no issue was framed to the eff ect, nor any positive findings were
given thereon, therefore, no inference can be drawn that the relief to the extent of entitlement
of possession of the suit property was allowed by the trial court in favour of respondent No.1/
plaintiff. Rather an advers e presumption can be drawn that the relief of possession was
disallowed. But it is painfully noted that the trial court failed to frame issues to cover matter
in dispute between the parties, therefore, failed to record findings to resolve the dispute
exist ed between the parties. But as the matter has attained finality, as none of the parties
challenged the judgment dated 31st July 2008, therefore, no findings can be given to said
extent at this stage.
9. The court during course of execution of a decree ha s to adopt the procedure provided
in Civil Procedure Code thereby adopt any provided procedure to assist the decree holder in
execution of a decree existed in his favour. During course the court is fully empowered to
determine how, and to what extent, and in what manner a decree shall be executed. But doing
so the court has to observe the terms in which decree has been passed. A relief not granted
therein cannot be granted during course of execution. It is further to be noted that the
plaintiff/respondent No.1 though claimed for possession, but remained contended and failed
to approach the court at relevant time, thereby agitating omission of a relief claimed by him.
He cannot be allowed to get the relief in such a manner. The execution application filed by
him was not maintainable in the given state of facts.
10. The trial court as well as the appellate court failed to consider this legal aspect of the
case. Rather there was complete failure on part of the court conducting execution proceedings
to discuss the objections raised by the petitioners, further failed to record reasons for rejection
of the objections so raised. It is no order, as failed to fulfil the legal requirement. As far as the
appellate court is concerned, its findings based on mere presump tion, that too, without any
reference to provisions of law, therefore, not sustainable
11. In view of the above stated facts, as no relief to the extent of possession was granted
in favour of the respondent No.1/ decree holder in the judgment dated 31st July 2008,
therefore, the decree -prepared in terms of the judgment cannot be deemed to the extent of
recovery of possession of property in question. Therefore, the decree to the extent of
possession is not enforceable, being not granted by the judgment of the trial court. Therefore,
the execution application filed for the purpose was not maintainable, as the court during
course of execution cannot go behind the decree.
12. In view of the above discussion the petition is hereby allowed. The order dated 30t h
December, 2009 of Civil Judge -I, Quetta, and order dated 13 -5-2010 of Additional District
Judge -IV, Quetta are hereby set aside. Consequent thereon the execution application filed by
respondent No.1/decree holder is dismissed being not maintainable.
There shall be no orders as to costs.
SAK/83/Q Revision accepted.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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