2020 Y L R 2498
[Balochistan]
Before Nazeer Ahmed Langove, J
MUHAMMAD HASHIM and others ---Petitioners
Versus
Syed KALIMULLAH and others ---Respondents
Civil Revision No. 304 of 2018, decided on 31st July, 2019.
(a) Balochistan Urban Rent Restriction Ordinance (VI of 1959) ---
----Ss. 13 & 17 ---Eviction petition ---Execution petition ---Objection petition ---Eviction
petition was allowed against which an appeal was filed but same was dismissed ---Execution
petition was filed wherein tenant moved objection petition on the ground of limitation but
same was dismissed ---Validity ---Mere filing of appeal or revision before higher forum did
not automatically operate as a stay of the order ---No stay order against eviction of tenant
from the higher forum had been passed in the case ---Execution petition should have been
filed within three years from passing of the order ---Execution petition had been filed after
more than nine years ---Findings recorded by the Courts below were devoid of merits and
without application of judicial mind which were not sustainable under the law ---Impugned
orders passed by the Courts below were set aside and execution petition was dismissed---
Revision was allowed in circumstances.
Bakhtiar Ahmed and others v. Mst. Shamim Akhtar and others 2013 SCMR 5 rel.
(b) Administration of justice ---
----Ignorance of law was no excuse.
Abdul Zahir Kakar for Petitioners.
Rasool Bakhsh Baloch for Respondents.
Date of hearing: 25th July, 2019.
ORDER
NAZEER AHMED LANGOVE, J. ---This petition i s directed against the order dated
27th September 2018, passed by learned Judicial Magistrate, Karezat at Khanozai (hereinafter the "executing court") in Execution Application No.05 of 2017, whereby the objection application filed by the petitioner (object or/judgment debtor) was dismissed;
assailed in Civil Appeal No.32 of 2018, but met with the same fate, vide order dated 31st
October 2018, passed by learned Additional District Judge, Pishin (hereinafter the "appellate court"). Hence, this petition with the prayer to set aside the impugned orders passed by the executing, as well as, appellate court and to dismiss the execution application filed by the respondents (decree holders).
2. Facts of the case are that predecessor -in-interest of the respondent Nos. 1-a to 5 -h, 7-a
to 7- g, as well as, respondents Nos.6 and 8 (landlords) filed Eviction Application No.01/2003
against the petitioners (tenants) in respect of property having Khasra Nos.514/85, measuring 2 rods, 20 poles, situated at Mahal Khushkaba Yaro, M ouza Yaro, District Pishin,
(hereinafter the "disputed property"), but dismissed, vide judgment dated 24th March 2003, passed by learned Senior Civil Judge, Pishin. Assailed in Civil Appeal No.27/2008 by the respondents (landlords), which was allowed, vide judgment dated 28th May 2009, passed by
learned District Judge, Pishin; challenged in Civil Revision Petition No.366/2009, vide judgment dated 16th June 2017, passed by this Court, whereby the petition filed by the petitioners (judgment debtors) was dismi ssed. Assailed in Civil Petition No.132 -Q/2017, but
dismissed, vide order dated 24th January 2018, by the Hon'ble Supreme Court of Pakistan; thus, attained finality.
3. The respondents (decree holders) filed application for execution of the judgment and
decree dated 28th May 2009, passed by learned District Judge, Pishin.
The petitioners (judgment debtors) filed objection application, mainly on the ground
that the execution application is barred by limitation.
4. The learned executing court, after hearing the arguments and evaluating the evidence
on record, rejected the objection application filed by the petitioners (judgment debtors); assailed in appeal, but dismissed. Hence, this petition.
5. Heard the learned counsel for the parties and gone through the record with their
assistance.
6. It is a settled law that mere filing of an appeal, revision before a higher forum does
not automatically operate as a stay of the order/judgment impugned.
In the instant case, the decree was passed in favour of the respondent (decree -holder)
on 28th May 2009 in appeal by the District Judge, Pishin; assailed in Civil Revision Petition No.366/2009 by the petitioners (judgment debtors) but dismissed, vide order dated 16th June 2017 passed by this Court and upheld by the Hon'ble Supreme Court of Pakistan, vide its order dated 24th January 2018, thus attained finality.
7. It is relevant to note here that during pendency of the revision petition either before
this Court or the Hon'ble Supreme Court of Pakistan, no stay or any sort of restraining order
had been issued; in such view of facts, the execution application ought to have been filed within three years of decree passed by the appellate court i.e. District Judge (28th May 2009), but filed in October 2018, after more t han nine years with the excuse that the decree
holders remained in impression that since the revision petition is pending before this Court
and the Hon'ble Supreme Court, therefore no execution application can be filed, which itself was a wrong perception and ignorance of law, which definitely is not an excuse. Reliance is placed on a case titled Bakhtiar Ahmed and others v. Mst. Shamim Akhtar and others (2013 SCMR 5), wherein the same proposition was resolved by the Hon'ble Supreme Court of
Pakistan, with the following observations:
"9. So far the question that the decree of the court of first instance is merged into the
decree of Appellate Court which alone can be executed, it may be stated that in the case in hand the decree was passed by the High Court being appellate/revisional Court, therefore, the time would run from the date of passing of decree by the said Court. In the instant case the right was accrued in favour of the petitioner when the decree was passed by the High Court on 17.3.2003. There bei ng no statutory remedy
of appeal or revision available against said decree and the only remedy available was filing a petition for leave to appeal before this Court, which is a constitutional court, therefore, unless the operation of the impugned decree is suspended or the petition is
converted into an appeal the petitioner cannot presume that the period of limitation has been clogged. Mere filing of petition before this court would not automatically enlarge the time of filing the execution application. Nee dless to mention here that in
case relief is granted by this Court after allowing the appeal with leave of the Court then in the said eventuality the order of this Court would merge into order of the lower forums as such the period of limitation would star t from the order of this
Court."
8. In such view of facts, the courts below shown to have erred in law by holding that the
objection application filed by the petitioners (judgment debtors) is meritless and deserves
dismissal. Findings arrived by the execut ing, as well as, appellate court being devoid of any
merit and without application of Judicial mind, are not sustainable under the law and liable to be reversed.
9. In view of what has been discussed above, the petition filed by the petitioners is
allowed; the impugned orders dated 27th September, 2018 and 31st October, 2018 passed by
the executing and appellate court are set aside. Consequent thereof the execution application filed by the respondent (decree holder), (before the executing court), is also di smissed. Order
accordingly.
ZC/37/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,
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