P L D 2025 Balochistan 68
Before Rozi Khan Barrech, J
ALLAH DAD ---Petitioner
Versus
MAQBOOL AHMED ---Respondent
F.A.O. No. 1 of 2024, decided on 1st November, 2024.
Civil Procedure Code (V of 1908) ---
----Ss. 47 & 151---Execution proceedings ---Application for grant of relief not mentioned in
the decree---Scope ---Decree of eviction was passed by the Rent Tribunal with a direction to
hand over vacant possession of shops and deposit remaining rent amount ---Respondent/
decree holder filed an application under S. 151, C.P.C. before the Executing Court for grant
of outstanding utility bills, which was allowed--- Validity ---It was not within the domain of
the Executing Court that in the execution proceedings, the question as to whether the view of
the court which passed the decree was right or wrong as it was no more open for adjudication
by the Executing Court ---Grounds taken in the application filed by the respondent under S.
151, C.P.C. were never pleaded in the eviction application nor during the recording of evidence were pointed out by the witnesses in their statements made before the Trial Court and neither the Trial Court gave any findings in respect of the utility bills, thus, the decree had attained finality---Appellant himself was responsible for having lost his defense ---Decree
had to be executed as it is and it is not permissible to go behind it ---Respondent did not take
the plea before the Trial Court to the effect that there was some ambiguity regarding the facts
in the case and the issue was not framed on a controversial point ---Executing Court could not
re-determine the rights and liabilities of the parties and once a decree was passed, it had to be
executed in its terms ---Points of attack or defense which were never agitated at the time of
trial could never be raised at the stage of execution of the decree by filing an independent application under S.151 C.P.C.---Appeal was accepted, in circumstances .
Mst. Naseem Akhtar and 4 others v. Shalimar General Insurance Company Limited
and 2 others 1994 SCMR 22 rel.
Gulzar Kanrani for Appellant.
Muhammad Ali Marri for Respondent.
Date of hearing: 23rd October, 2024
JUDGMENT
ROZI KHAN BARRECH, J. ---The instant appeal, under Section 15 of the Urban
Rent Restriction Ordinance, 1959 ("the Ordinance 1959"), has been filed by the appellant
against the order dated 16.12.2023 ("impugned order") passed by the executing court Civil Judge, Hub, whereby, the application filed by the respondent/decree holder under section 151, C.P.C. was accepted and the appellant /judgment debtor was directed to deposit the utility
bills' arrears.
2. Brief facts leading to the filing of the instant appeal are that the respondent filed an
eviction application under section 13 of the Ordinance, 1959 against the appellant in the court of learned Civil Judge/Rent Controller, Hub ('trial court') and ultimately the same was accepted by the trial court in favor of respondent/applicant vide judgment dated 20.01.2022 and the appellant was directed to handover the vacant possession of two shops in question to the respondent within thirty days and it was also directed to deposit all the remaining rent amount in CCD, which has already been agreed upon during the trial.
3. The judgment and decree was challenged by the appellant before this court through
appeal, however, the appeal was also dismissed vide this court's judgment dated 30.09.2022 passed in F.A.O. No. 07 of 2022 and later on it was put to the execution and was accordingly implemented by giving possession of the disputed shops to the respondent. Later on, respondent filed an application under section 151, C.P.C. which was contested by the
appellant and after hearing arguments of learned counsel for the parties the executing court
accepted the application filed by the respondent vide impugned order dated 16.12.2023 with direction to the appellant to deposit the outstanding utility bills' arrears of SSGCL and K -
Electric i.e. Rs.342,830/ - and Rs. 187,254/ - respectively, whereafter the instant appeal was
filed.
4. Arguments of learned counsel for the parties were heard in detail and the record
perused with their able assistance.
5. The controversy between the parties in the eviction application was with regard to
two shops which were rented out by the respondent to the appellant. Issues were framed and then the parties were given ample opportunity to lead their evidence in order to substantiate their stand taken in the plaint as well as the written statement, resultantly, the judgment and decree came into existence. During the execution application, the decree was satisfied, and possession of the shops in question was handed over to the respondent. Subsequently, an application under section 151, C.P.C. was filed by the respondent wherein he submitted that "when the application of eviction has been filed by the previous counsel where he mistakenly did not mention any clause of remaining utility bills....." and prayed for the recovery of the same from the judgment debtor.
6. The respondent neither took the ground in his eviction application in respect of utility
bills arrears nor sought any relief from the court. Even otherwise, no issue was framed by the trial court during the trial in this regard and the trial court also did not give any findings in
respect of utility bills.
7. It is axiomatic that section 47 is meant to regulate and determine the questions raised
before the executing Court. The plain reading of section 47 of the Code of Civil Procedure
would make it clear that any or all questions, relating to execution, discharge or satisfaction
of the decree, arising between the parties to the suit or their representatives, shall be
determined by the executing court and not through separate suit. The basic principle is that
the decree is executable in the light of the terms and conditions mentioned in the decree and the executing court has to confine its deliberation within the purview of the decree and not beyond that. It is the duty and obligation of the executing court to dispose of the execution application in the light of the terms and conditions of the decree and the executing court is not authorized to deviate from the real controversy between the parties, keeping in view the decree secured by the respondent in the case in hand. It is not within the domain of the executing court that in the execution proceedings, the question as to whether the view of the court which passed the decree is right or wrong as it is no more open for adjudication by the executing court. The same view has been taken by the Hon'ble Supreme Court of Pakistan in a case titled Mst. Naseem Akhtar and 4 others v. Shalimar General Insurance Company Limited and 2 others (1994 SCMR 22), which reads as under: --
"...... 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 Court 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 analyzed above make quite clear that once a decree is passed it has to be executed in its terms and it is not open to 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............."
8. The executing court is required to execute the decree as it is, particularly, when the
decree has attained the finality, even the executing court is not competent at all to rectify any mistake in the decree. It is only required to be executed in its letter and spirit, otherwise, it would be tantamount to go beyond the decree. When the decree is unambiguous, the
executing court is bound to execute the same as such. If some factual objections are raised
before the executing court at the time of execution of the decree, the executing court is not under legal obligation to resolve the same during the proceeding of the execution of the decree and those could only be made before passing of the decree. It is important to mention here that the ground taken in the application filed by the respondent under section 151,
C.P.C. were never pleaded in the eviction application nor during the recording of evidence
were pointed out by the witnesses in their statements made before the learned trial court and
neither the trial court gave any findings in respect of the utility bills. In this view of the matter, the decree has attained finality. The appellant himself is responsible for having lost his defense. The decree has to be executed as it is, it is not permissible to go behind it. The eviction application was filed by the respondent and the written statement was filed by the appellant, and the respondent did not take the plea at the relevant time before the trial court to the effect that there was some ambiguity regarding the facts in the case and the issue was not framed on a controversial point.
9. It is not open to the executing court to re -determine the rights and liabilities of the
parties and once a decree is passed, it has to be executed in its terms. The points of attack or defense which were never agitated at the time of trial can never be raised at the stage of
execution of the decree by filing an independent application under section 151 of the Code of
Civil Procedure.
10. In view of the above, I am of the considered opinion that the order passed by the
executing court is not sustainable in the eyes of the law, as such the instant appeal is accepted and the impugned order dated 16.12.2023 to the extent of direction given to the appellant for depositing the utility bills arrears is hereby set aside.
SA/134/Bal. Appeal 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,
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