P L D 2024 Balochistan 97
Before Iqbal Ahmed Kasi, J
SHER ALI MIRWANI and 4 others ---Petitioners
Versus
AHMEDULLAH ---Respondent
Civil Revision No. 745 of 2022, decided on 31st October, 2023.
Civil Procedure Code (V of 1908) ---
----Ss. 11 & 48---Execution of decree---Res judicata, principle of ---Maxim "excaptio res
judicata"---Scope ---Petitioners were aggrieved of order passed by Lower Appellate Court
allowing second application for execution of decree ---Plea raised by petitioners was that in
view of principle of res judicata, second execution proceedings were not maintainable ---
Validity ---Respondent filed execution application and sought execution of order and decree,
whereas first execution application had already been disposed of and no one from contesting
parties had challenged the same before higher forum and that order took finality---Respondent's execution application had come under the purview of res judicata ---Doctrine of
res judicata is a well -settled rule in nearly all judicial systems, which empowers the Court to
put at rest the litigation at some terminating point ---Provision of S.11, C.P.C., embodies such
rule of conclusiveness of judgment ---Principle of res judicata enacts that once a matter is
finally decided by competent Court, no party can be permitted to reopen it in subsequent
litigation ---To bring an end to litigation and to save parties from constant troubles,
harassment and expenses, the rule of res judicata was made in Civil Procedure Code, 1908---
To bring finality of judgment, such rule is applied, which is a rule of universal application and almost in every civilized legal system, this rule is being followed ---Concept of res
judicata evolved from common law system and it rests on the overriding concept of judicial economy, consistency and finality of a civil action---It has roots in Roman law also where a defendant could successfully contest a suit under the plea of excaptio res judicata, meaning that "one suit and one decision is enough for any single dispute" ---Doctrine of res judicata is
conceived in general interest of public policy, which requires that all litigation must come to an end at a point of time ---Principle of res judicata is also founded on justice, equity and
good conscience, which requires that a party who has once succeeded on an issue should not be harassed by multiplicity of proceedings involving same issue ---High Court in exercise of
revisional jurisdiction dismissed execution proceedings filed by respondent and order passed by Lower Appellate Court was set aside ---Revision was allowed accordingly.
Mazhar Saeed Qureshi v. Government of Punjab through Secretary, Irrigation and
Power Department, Lahore and 49 others 1986 SCMR 12 and Ejaz Hussain v. Bashir Ahmad and others 2000 SCMR 1190 rel.
Kamran Arshad for Petitioners.
Mujeeb Ahmed Hashmi for Respondent.
Date of hearing: 11th October, 2023.
JUDGMENT
IQBAL AHMED KASI, J. ---Through the instant petition, the petitioners/respondents
have challenged the validity of the order dated 01.12.2022 ("the impugned order") passed by the Additional District Judge -X, Quetta ("the appellate Court") whereby, the appeal under
Section 104(1)(FF), C.P.C. filed by respondent/applicant has been accepted, and the order dated 06.08.2022 passed by the Civil Judge -III, Quetta ("the executing Court") has been set
aside.
2. Brief facts of the instant petition are that a case was pending between the parties and
accordingly the decree was passed in favour of the petitioners/respondents over a disputed
property bearing Khatooni No.116, Khewat No.78, Khasra Nos. 10,11,53, measuring 25
Poles, 6 -Rods, situated at Mahal Chashma Hudda, Tappa Saddar, Tehsil and District Quetta
("the property in question"). The property in question was owned by the father of the petitioners, the petitioners' father was bent on the transfer of the said property in the name of his brother Muhammad Mirwani (late), i.e. predecessor of petitioners. The predecessor of
petitioners/respondents and predecessor of respondent/ applicant Abdul Wahid (late)
contested the suit by filing a written statement, however, it appears from the record that
subsequently, the parties had reached an out -of-court settlement through arbitration. The said
arbitration award was submitted before the Court as a compromise, with the consent of the parties, the said arbitration award dated 01.04.1996 was made rule of the Court and the suit was disposed of according to the terms of the award vide order dated 03.04.1996.
3. The predecessor of the petitioners filed an execution application on 29.07.1998 and
the said execution application was disposed of/ satisfied vide order dated 08.03.2000. However, the respondent/ applicant filed another application seeking execution of the order and decree dated 03.04.1996, wherein the petitioners/respondents made appearance and contested the said application by way of filing their rejoinder/reply and raised objections that the application is barred by limitation and the decree has already been satisfied by the
executing Court. After hearing arguments from both sides, the learned executing Court
dismissed the execution application vide order dated 06.08.2022.
4. Being aggrieved and dissatisfied from the order dated 06.08.2022, the
respondent/applicant preferred an appeal under Section 104, C.P.C. before the appellate Court. The learned appellate Court after notice and hearing arguments from both sides, allowed the appeal vide impugned order dated 01.12.2022, hence this petition.
5. Learned counsel for petitioners inter alia contended that the impugned order dated
01.12.2022 is perverse, factually incorrect, patiently illegal and completely inconsistent with
provision governing administration of justice in civil matters; that after order and decree,
execution whereof was filed by the predecessor of petitioners before the learned executing
Court, which was accordingly satisfied in the year 2000 without any objection from the side of respondent/applicant, thus, the present application hit by Res Judicata; that the shares of respondent/ applicant have been delivered to him accordingly in pursuance of the consent order, during the execution proceedings and that order was not assailed, which attained finality; that the execution application filed by respondent/applicant is hopelessly barred by time; that if there would have been any grievances, the respondent/applicant may have filed a separate suit with fresh cause of action.
6. On the other hand, learned counsel for respondent/applicant opposed the contention of
learned counsel for petitioners/respondents contended that the appellate Court rightly remanded the matter for execution; that the execution application filed is within time, because the limitation runs from the date of preparing decree sheet; that the learned executing Court has erred in law while disposing of the execution application, because it is the principle of law that execution of decree sheet is executable not the judgment passed by civil Court.
7. We have heard learned counsel for the parties and perused the available record
minutely with their able assistance. It is an admitted fact that on 19.02.1996, the respondent/applicant filed Civil Suit No.13/1996 against his own father, namely, Abdul Wahid (late) and brother Muhammad Mirwani (late) (predecessor of petitioners) and claimed his share in the property bearing Khatooni No.116, Khewat No.78, Khasra Nos. 10,11,53, measuring 25 Poles, 6- Rods, situated at Mahal Chashma Hudda, Tappa Saddar, Tehsil and
District Quetta, which belonged to his father Abdul Wahid (late). According to the respondent/applicant, his father was bent on transferring the said property in the name of his brother Muhammad Mirwani, which would amount to depriving him of his share in the inheritance of the ancestral property. It appears from the record that subsequently the parties had reached to an out -of-court settlement through arbitration, pertaining to the distribution of
property of Abdul Wahid (late) amongst his sons and daughters, including respondent/applicant and predecessor of the petitioners/respondents. The arbitration award was submitted before the Court as a compromise and with the consent of the parties, the suit was decreed/disposed of according to terms of the award vide order dated 03.04.1996.
8. The predecessor of petitioners/respondents had filed an Execution Application
No.19/1998 for the execution of said order and respondent/ applicant had participated in the
proceedings and initially had filed an objection to the extent of shares of minors, the children of their deceased brother, namely, Abdullah, but subsequently filing his rejoinder on the report of Halqa Patwari expressed that previously, he had contested the execution application
on the basis of some misconceptions, but then he did not want to contest the same and prayed
for execution of award dated 01.04.1996 by effectuate mutation accordingly. Resultantly, the
executing Court ordered the Tehsildar to transfer the property and effected the mutation in accordance with the terms of the award. The record further reflects that with the order of executing Court mutation Nos. 1668 and 2366 was effected in the name of the predecessor of petitioners and respondent/applicant. Subsequently, upon the attestation of said mutations, the executing Court vide order dated 08.03.2000 disposed of the Execution Application No.19/1998, accepting the attestation of mutation as satisfaction of the order passed by the Civil Court on 03.04.1996, on the basis of compromise award. The respondent/applicant filed the execution application in hand and prayed for the execution of order and decree dated
03.04.1996 as stated above, the first execution application was disposed on 08.03.2000 and
none from the contesting parties challenged the same before the higher forum, as such, the
order dated 08.03.2000 took finality. The respondent/ applicant filed the instant application comes under the preview of res judicata. The doctrine of res judicata is a well -settled rule in
nearly all judicial systems, which empowers the Court to put at rest the litigation at some
terminating point. In our jurisdiction, Section 11 of C.P.C. embodies this rule of
conclusiveness of the judgment. It enacts that once a matter is finally decided by the
competent Court; no party can be permitted to reopen it in subsequent litigation. To bring an end to litigation and to save the parties from constant troubles, harassment and expenses this rule was made in the Code. To bring the finality of the judgment, such rule is applied, which
is a rule of universal application and almost in every civilized legal system, this rule is being
followed. The concept of res judicata evolved from the common law system, and it rests on
the overriding concept of judicial economy, consistency and finality of a civil action. It has roots in Roman law also, where a defendant could successfully contest a suit under the plea of "excaptio res judicata" meaning that "one suit and one decision is enough for any single dispute". The doctrine of res judicata is conceived in the general interest or 'public policy' which requires that all litigation must come to an end at a point of time. The principle is also founded on justice, equity and good conscience, which requires that a party who has once succeeded on an issue should not be harassed by the multiplicity of proceedings involving the same issue. In view of the foregoing, the Hon'ble Supreme Court of Pakistan held that unless it is specifically excluded by law the principle of res judicata is also applicable to proceedings other than suits, to execution proceedings and even to miscellaneous application. In the present proceedings, the respondent/applicant attempted to harass and blackmail the petitioners/respondents, because an order and decree dated 03.04.1996 was executed vide order dated 08.03.2000 and that order was not assailed by either party and mutations were effected on the name of parties. Reliance is made on the case "Mazhar Saeed Qureshi v. Government of Punjab through Secretary, Irrigation and Power Department, Lahore and 49 others" 1986 SCMR page 12. Similarly, this view has been taken in the case titled as "Ejaz Hussain v. Bashir Ahmad and others" 2000 SCMR 1190.
Thus, in view of the above, the instant petition is allowed and the impugned order
dated 01.12.2022 passed by the Additional District Judge -X, Quetta is set aside while the
order dated 06.08.2022 passed by the Civil Judge -III, Quetta is hereby upheld.
MH/2/Bal. Revision allowed.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,
let us know.