P L D 2023 Balochistan 78
Before Gul Hassan Tareen, J
ABDUL REHMAN and 3 others ---Petitioners
Versus
Messrs PROGRESSIVE MINERALS through Najeeba and others ---Respondents
Civil Revision No. 190 of 2022, decided on 14th December, 2022.
Civil Procedure Code (V of 1908) ---
----Ss. 47, 115 & O.XXI, R.32--- Specific Relief Act (I of 1877), S.54---Suit for perpetual
injunction---Execution of decree ---Restoration of possession and removal of encroachment ---
Executing Court, powers of ---Respondents/dec ree holders were aggrieved of their
dispossession and encroachment made by petitioners/judgment debtors over suit property---
Held, that where holder of decree for injunction was dispossessed by judgment debtor or his possession was interfered with by encroachment or otherwise, the holder of such decree could apply to Executing Court for restoration of his possession or removal of encroachment from suit land ---Such decree holder could not be asked to go and institute a fresh suit for
restoration of possession etc. ---Trial Court, Lower Appellate Court and High Court in
exercise of revisional jurisdiction held that respondents/decree holders were in possession of
suit land--- Petitioners/judgment debtors dumped construction material upon suit land of
respondents /decree holders and Executing Court had rightly directed for removal of the
same---Decree of injunction was not just a piece of paper, rather had same legal force and
effect as any other decree---Decree holder of an injunctive decree, if dispossessed by judgment debtor could have applied to the Court on the strength of same decree for
restoration of his position under S. 151, C.P.C., which provision could also be pressed into service for restoration of possession of a decree holder of perpetual injunction--- High Court
declined to interfere in concurrent orders passed by two Courts below ---Revision was
dismissed, in circumstances.
Mst. Naseem Akhtar and 4 others v. Shalimar General Insurance Company Limited
and 2 others 1994 SCMR 22 and Muhammad Hussain and others v. Muhammad Aslam 1988
SCMR 151 ref.
Adnan Basharat for Petitioners.
Muhammad Saleem Lashari, Salman Langove and Rehan Babar for Respondents.
Date of hearing: 2nd December, 2022.
JUDGMENT
GUL HASSAN TAREEN, J. ---The instant civil revision petition assails concurrent
orders, whereby the Courts of, Judicial Magistrate -VIII/ Civil Judge, Quetta ("Executing
Court") and Additional District Judge -VII, Quetta ("Appellate Court"), have repelled the
objections of the petit ioners raised to the execution application made by the respondents Nos.
1 to 6.
2. Brief facts of the case are that a Civil Suit No. 110/2009, instituted by the predecessor
of the respondents Nos.1 to 6 ("respondents") was decreed by the Court of Judicial Magistrate
IX/Civil Judge, Quetta, in the following terms:
"It is ordered that suit of the plaintiff is decreed and it is declared that plaintiffs are the lawful allottee/owner of the land in dispute measuring 50 Acres situated near Ziarat Boli Buland Kuc hlak and the defendant has no right to interfere and encroach
upon the same."
The predecessor of the petitioners assailed the decree which was affirmed on appeal
by the Court of Additional District Judge -I, Quetta, vide judgment and decree dated 21st
September, 2010. The concurrent judgments were assailed in Civil Revision Petition No.
492/2010, which was dismissed by this Court vide judgment dated 06th November, 2020. The petitioners have assailed the three judgments before the Hon'ble Apex Court in C.P.L .A
No. 23- Q /2021, which has not yet, come up for hearing before the Hon'ble Apex Court. The
respondents made an Execution Application No. 03/2021 for execution of the decree. The petitioners submitted objections to the execution application. After hearing both sides, the
Executing Court vide order dated 22nd November, 2021 repelled the objections and directed Civil Nazir, for execution of the decree. The order was affirmed on appeal, preferred by the petitioners, by the Court of Additional District Judge -VII, Quetta vide order dated 28th
March, 2022.
3. Mr. Adnan Basharat, learned counsel for the petitioners, has contended that the
respondents have sought possession of the suit land, whereas the decree is purely of a perpetual injunction; that the parties a re partners in the decreed land vide Partnership Deed dated 22nd
September, 1993, while a Civil Suit No. 89/2009 instituted by the respondents for cancellation of the partnership deed was finally dismissed by the Court of Additional District Judge -I,
Quett a and a civil revision petition filed there against, was unconditionally withdrawn by the
respondents, before this Court; that the petitioners' Civil Suit No. 36/2007 for specific performance of the partnership deed was ex -parte decreed on 17th August, 2007. According to
petitioners' counsel, that since an ex- parte judgment still holds the field, therefore, the decree
of the respondents was no more executable and the courts below have overlooked such material aspects of the case; that the petitioners' Civil Petition for Leave to Appeal is pending
before the Hon'ble Apex Court, therefore, the execution application was not competent. Finally, he has requested for setting aside of the impugned orders. In rebuttal, Mr. Muhammad Saleem Lashari, counsel for the respondents, has supported the impugned orders.
4. Heard. Record perused.
5. The perusal of record transpires that the Director General Mines and Mineral
Department, Government of Balochistan had leased out the suit land (50 Acres) to the
predecessor of the respondents vide P.I -Lime Stone (1115) dated 09th September, 1993. The
predecessor of the respondents instituted a Civil Suit No. 110/2009 against the predecessor
of the petitioners which was decreed in the above mentioned terms. The decree was merged in the decree of Appellate Court and later in the judgment of this Court, on the principle of
merger. In the suit of the respondents, the predecessor of the petitioners had claimed that
after getting mining lease by the predecessor of the respondents, he along with others had
entered into a Partnership Deed dated 22nd September, 1993 in respect of the suit land
(mining lease) which was acted upon. The Trial Court, Appellate Court as well as this Court disbelieved the existence of the said partnership deed and decreed the suit. For the first time, the petitioners, in their objections before the Executing Court, has come with the plea that they have already got an ex- parte judgment on the basis of the said partnership deed. The
objection is hereunder reproduced:
"C. The suit for specific performance has already been decreed in favour of replying respondents. On this score alone execution application is not maintainable, liable to dismissed. Copy of judgment is annex: [sic] "
The petitioners' predecessor obtained an ex -parte judgment and decree on 17th
August, 2007 from the Court of Senior Civil Judge -II, Quetta during pendency of the suit of
the predecessor of the respondents. The petitioners have concealed the existence of the ex-parte judgment in the suit of the respondents' predecessor. When the suit of the respondents
was decreed, the petitioners preferred an appeal, however, they again kept conceal the existence of the ex -parte judgment and same is the position in the civil revision petition
preferred before t his Court. The photocopy of Civil Petition for Leave to Appeal No. 23-
Q/2021 (available at page No. 46 of this petition) is also silent about the said ex- parte
judgment. This conduct of the petitioners transpires their mala fide intention. Even in their
afore-referred objection, the petitioners have not referred to the date of the ex- parte judgment
and number of the suit. The petitioners' predecessor had obtained the ex -parte judgment prior
to the decree, under execution. They intentionally concealed the e xistence of the ex -parte
judgment from the respondents as well as from the Trial, Appellate and the Revisional Courts. The petitioners' counsel has not explained circumstances about the act of concealment of the ex parte judgment in their written statement as well as evidence in the
suit of respondents. The suit of the respondents' predecessor was pending in the Court of Judicial Magistrate -IX/Civil Judge, Quetta, while the petitioners' predecessor had obtained
ex-part decree from the Court of Senior Civil Judge -II, Quetta and both the Courts were kept
in dark about pendency of the suits. Hence, the petitioners have filed objections with unclean hands; therefore, they have rendered themselves to be penalized by imposition of special costs.
6. The contention of the petitioners' counsel that in presence of the ex- parte judgment,
the decree of the Executing Court is not executable, is not well founded. The ex- parte decree
is reproduced hereunder:
"In view of failure of defendant despite service of notice did not appear before the court, therefore, he is declared ex - parte and the suit brought by the plaintiff is
decreed ex - parte in his favour."
The decree is silent about the right and or liability of any party to the suit. Hence, on
the basis of this decree, t he execution application made by the respondents cannot be
defeated.
7. Apart from all above, it is a settled proposition of law, that any legal objections as to
maintainability of a suit which could have been raised but were not raised by a defendant in
his written statement or during suit's proceeding, could not be subsequently raised in
execution proceedings. The petitioners could have raised objection during pendency of the suit of the respondents that he has an ex- parte decree on the same subject matter or he could
have applied for transfer of either suit and later, to be tried by the same court consolidately or otherwise, but at then he shelved the ex- parte decree and all of sudden, brought it on
record to the utter surprise of the Court as well as the respondents. The perusal of record
transpires that the respondents have challenged the ex- parte judgment under Order IX rule 13
read with section 12(2), the Code, the fate of which is yet to be decided by the Court, however, since, the petitioners had not raised the objection as to the maintainability of the
suit of the respondents at the trial, appellate and revisional stage, therefore, now, the petitioners cannot be allowed to raise objection at the stage of execution. Reliance is placed on the case of M st. Naseem Akhtar and 4 others v. Shalimar General Insurance Company
Limited and 2 others, reported in 1994 SCMR 22, wherein the Hon'ble Apex Court has held as under:
"5. After hearing the learned counsel for the parties at length and perusing the record and the precedents, we are of the view that no doubt that the liability of the appellants was limited under the relevant statute. In the suit filed by the appellants, the respondent No. 1 filed the written statement. It did not take the plea of limited liability. It produced its Manager as D. W.1, However, decree was passed in favour of
the appellants and against the respondents. The respondent No. 1 filed an appeal but did not prosecute it and it was dismissed for non- prosecution. The respondent No. 1
then filed an application for restoration but did not prosecute. This too, was
dismissed. Thus, the decree became final. In the execution proceedings, it was not open to the respondent No. 1 to take up the plea which he had not taken before the learned trial C ourt during the course of the hearing of the suit which was ultimately
decreed and the decree allowed to become final. In these circumstances, the respondent No. 1 itself is responsible for the decree against it, even though its liability was limited. It is not open to the respondent No. 1 judgment -debtor now to contend
that its liability has not been correctly assessed or determined. If it were permissible, there will -be no end or finality to the judgment and decree which had become final.
Precedents noted and analysed above make quite clear that once a decree is passed it
has to be executed in its terms and it is not open to the executing Court to go behind it and re -determine the liability of the parties. In this view of the matter, there is no
option but to allow this appeal and hold that the learned Judge in the High Court fell
in error in giving effect to the plea of the respondent No. 1 which had not been raised before the learned trial Court which granted the decree to the appellants. It may also be noted that the decree has already been executed, There is no good ground in the
circumstances to put the clock back. Therefore, the impugned order is set aside. However, in the circumstances the parties are left to bear their own costs."
Therefore, the Trial Court and the Appellate Court have rightly repelled the
objections of the petitioners.
8. The learned counsel for the petitioners has also contended that the Executing Court
has gone beyond the terms of the decree. The decree was only to the extent of perpetual
injunction, however, the Executing Court directed for removal of 200- KV Transformer from
the suit land and removal of dumped crush stone. The contention of the petitioners' counsel is
not correct. The decree passed in favour of t he respondents was for a declaration and
perpetual injunction restraining petitioners from interfering with the physical possession of the respondents. Order XXI, Rule 32, the Code prescribes mode of execution of decree of injunction both mandatory and prohibitory. According to Order XXI, Rule 32(1), (2) and (3), the Code, a
decree for an injunction may be executed by detention of judgment debtor in prison or by
the attachment of his property, or by both when it is disobeyed by a judgment debtor. Reliance is placed on the case of Muhammad Hussain and others v. Muhammad Aslam (1988
SCMR 151).
Where the holder of a decree for injunction is dispossessed by the judgment debtor or
his possession is interfered with by encroachment or otherwise, the holder of such decree may apply to the Executing Court, for restoration of his possession or removal of encroachment from the suit land. Such decree holder cannot be asked to go and institute a fresh suit for restoration of possession etc. In the suit of the respondents, the Trial Court, as well as the Appellate Court and the Revisional Court have held that the respondents are in the possession of the suit land. And if the petitioners were succeeded to dump construction material upon the suit land of the respondents, the executing court has rightly directed for
removal of the same. A decree of an injunction is not just a piece of paper rather has the same legal force and effect, as any other decree. A decree holder of an injunctive decree, if dispossessed by the judgm ent debtor, may apply to the court on the strength of the same
decree for restoration of his possession under section 151, the Code. The section 151, the Code may also be pressed into service for restoration of possession of a decree holder of perpetual in junction.
9. The petitioners counsel, also referred to two survey reports submitted before this
Court at the time of pendency of a civil revision petition filed during pendency of the suit against an order under Order XXXIX, Rules 1 and 2, the Code. This C ourt vide order dated
21st May, 2008, directed the Director Mines and Mineral Department to demarcate by putting pillars and separate the area, allotted to both parties. However, the relevant in the order is reproduced hereunder:
"It is an interim arrange ment, which shall continue to final determination by the
competent court of civil jurisdiction.
Petition stands disposed of in above terms."
Hence, the contention of the petitioners' counsel is not correct, because, the survey
reports were called for th e purpose of an interim arrangement during pendency of the suit of
respondents' predecessor.
10. The petitioners' counsel also referred to a petition preferred in the Hon'ble Apex
Court. The mere filing of a civil petition for leave to appeal before the Hon'ble Apex Court
would not amount to suspension of the impugned judgment or stay of execution proceedings unless an injunctive order has not been issued. I may refer to Order XX, rule 1, the Supreme Court Rules, 1980, which reads:
"The filing of a petitio n for leave to appeal or an appeal shall not prevent execution of the
decree or order appealed against, but the court may, subject to such terms and conditions as it may deem fit to impose, order a stay of execution of the decree or order, or order a stay of proceedings, in any case under appeal to this Court."
Hence, the contention of the petitioners' counsel is not found correct.
11. I have gone through the impugned orders which are well reasoned. The impugned
orders are concurrent; while the learned counsel for the petitioners has failed to point out any material illegality in the impugned orders, as such, do not warrant any interference by this Court in exercise of the limited revisional jurisdiction. Since the petitioners, had concealed the existence o f the ex -parte judgment as mentioned above, therefore, the revision petition is
dismissed with exemplary costs of Rs. 100,000/ - and costs of execution.
MH/15/Bal. Revision 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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