2026 PLP 779 (YLR)

Rasaal Hassan Syed, J.

This civil revision impugns order dated 23.10.2021 and 18.4.2022 of the courts below whereby objections to the execution of decree were dismissed and appeal there against was declined.

2. Respondent No.1/plaintiff instituted a suit for specific performance of agreement to sell dated 04.3.2008 against Rasheeda Bibi, now deceased, mother of petitioners and respondents Nos.2 and

3. Suit was contested which was ultimately decreed on 10.12.2012. Appeal thereagainst preferred by the petitioner was dismissed for non-prosecution vide order dated 07.4.2016 by learned Addl. District Judge, Vehari. An application for restoration of appeal was filed on 29.4.2016 which too was dismissed on 01.3.2017. Thereafter respondent No.1 on 28.2.2020 filed an execution petition wherein objection petition was filed by the petitioner on 16.7.2021 raising the plea that the execution petition was barred by time, therefore, the same be dismissed. The objection petition was dismissed by learned Civil Judge vide order dated 23.10.2021. Petitioner went in appeal which too was dismissed by learned Addl. District Judge, Vehari vide order dated 18.4.2022, which decisions are impugned herein.

3. Learned counsel submits that execution petition was filed after more than three years, which was barred by time as provided by Article 181 of Limitation Act, 1908; that view taken by the courts below is untenable in law; that findings that the possession was with the decree holder was against record and that the direction was given in decree to the respondent to deposit the remaining sale consideration who failed to deposit the same within time, therefore, the execution could not proceed in law and that the belated deposit of sale consideration could not condone the default on the part of respondent in not complying with the decree and that the objection was decided without opportunity of evidence which prejudiced the cause of petitioners and that the impugned order is not a speaking order based on any valid reason. Contrarily learned counsel for the respondents controverted the submissions and maintained that the application for execution of decree was within time, the respondent being in possession having deposited the sale consideration in toto was entitled to execute the decree and the findings of trial court in this regard are legally correct, which call for no interference.

4. Perusal of material documents annexed with the petition reveals that the respondent brought a suit for specific performance of agreement to sell dated 04.3.2008 maintaining that suit property was agreed to be sold for Rs. 20,00,000/- out of which Rs.1,00,000/- were paid as earnest money vide agreement to sell dated 04.3.2008, possession of the suit property was delivered to the respondent No.1 and that by delivery of possession in part performance of agreement to sell having been performed, respondent was holding the property as owner. Issues were framed wherein issue Nos. 1 and 9 are material which are reproduced below for ready reference: Issue No.1 "Whether Munawar Ali, defendant general power of attorney of Muhammad Haneef etc. defendants Nos.1 and 2 made an agreement to sell with the plaintiff regarding the disputed land for a consideration of Rs.20,00,000/- and got executed an agreement to sell deed dated 4.3.2008 in the plaintiff's favour after receiving Rs.1,00,000/- in advanced and the plaintiff is entitled to the decree, as prayed for?" OPP Issue No. 9 "Whether Muhammad Haneef etc. defendants are owners in possession over the disputed land are entitled to the decree for permanent injunction, as prayed for?" OPD The operative part of findings on issue No.1 in judgment dated 10.12.2012 of the trial court (at its page 11) is as follows: " Hence the plaintiff has fully proved that Munawar Ali the general power of attorney of Muhammad Hanif and Rasheedan Bibi have made an agreement to sell regarding the disputed amount in consideration of Rs.20,00,000/- and got executed an agreement to sell dated 4.3.2008 after receiving Rs. 1,00,000/- as earnest money. Hence issue is decided in favour of the plaintiff and plaintiff is entitled to the decree for specific performance as prayed for." Findings on issue No. 9 (at page 13 of the judgment dated 10.12.2012) were as follows: " Onus to prove this issue was placed upon the defendants but the fate of this issue is linked with the fate of issue No.1 as issue No.1 is decided in favour of the plaintiff and in the circumstances when Muhammad Hanif has alienated the suit property in favour of Arif Ali, the defendant No. 2 does not produce any solid evidence to negate the execution of general power of attorney as well as agreement to sell while the possession of the alleged suit property has not been belong to the plaintiff Arif Ali but when the title of defendants Rasheedan Bibi has not been established then her constructive possession over the suit property through their tenants is of no avail and he is not entitled for the decree of permanent injunction as prayed for. Hence issue is decided against the defendant." The operative part of judgment dated 10.12.2012 is as under: "RELIEF

11. In view of my above said findings on issue No.1 and issue No.4 the instant suit of the plaintiff is decreed in favour of the plaintiff subject to payment of remaining consideration amount proportionately to her share out of contest because defendant No.1 has already transferred his property in the name of Muhammad Arif in pursuance of contract " As per findings supra it is obvious that the possession of property was with decree-holder respondent No.1 while copy of challan for deposit of remaining sale consideration is at page 27 of the file. Based on these observations, the case of respondent was that the whole amount of consideration was paid and deposited, the possession was with the respondent and that the formal steps were to be taken by the petitioner in terms of operative part of the decree. The case of respondent was that the execution petition was within time, he had performed his obligation under the agreement and also the decree and was entitled to proceed with the execution thereof. Reference was made to the case of Mst. Hakam Bibi through L.Rs v. Khushi Muhammad through L.Rs (2007 SCMR 983) in which it was ruled as under: "

6. It is a settled law that suit for specific performance is always suit for possession. In the present case as mentioned above the possession has already been with the petitioners since execution of agreement to sell since 1971, therefore, as mentioned above, petitioners do not require to file execution petition for possession of the property in question from the respondents. It is also a settled' law that petitioners can file execution petition on the refusal of the respondents for the remaining part of the decree. The basic foundation of the case in hand was not pointed out by the learned counsel for the parties before the High Court as evident from impugned judgment. It was not in the knowledge of the learned High Court that petitioners had deposited the balance amount on 1-10-1986. The judgment of the learned High Court is, therefore, judgment per incurrium on account of failure of counsel for the parties qua the deposit of balance amount within the prescribed period and this fact was also not denied by the learned counsel for the respondents. The judgment in favour of the petitioners is conditional subject to payment of the balance amount which had been deposited by the petitioners within the prescribed period, therefore, petitioners could be awarded relief in terms of Order XX, rule 14, C.P.C., wherein after specifying the decree qua the payment to the decree-holder is not required to file execution petition It is now settled law that after enforcement of Law Reforms Ordinance (XII of 1972) first application for execution of a decree would be governed by residuary Article 181 of the Limitation Act and rest of the application made, thereafter, would be governed by the six years period of limitation prescribed by section 48 of C.P.C.

7. Rights accrued to the petitioners after depositing amount on 1-10-1986 is not fair to deprive them from the benefit of the decree as law laid down by this Court in Syed Phul Shah's case PLD 1991 SC 1051. The relevant observation is as follows:- "It is also a well-known principle in Islamic justice, that one who succeeds in a litigation unjustly must not retain the benefit. It has been equated with burning charcoal in one's pocket; which, burns and eats away the winner's belongings including the retaining pocket also. Thus, while trying our best to do justice in accordance with the law, the principles in our own jurisprudence governing just dispensation shall have to be kept in view. In other words while adhering to the principle; justice in accordance with law, we will have to keep in mind that it is the birth right of every citizen in an Islamic State to seek and obtain justice. In this exercise of keeping balance between the undiluted justice and justice only in accordance with law, the general directional principles in Islam come to the aid when, one exerts." In the case referred supra, reference was also made to the case of Maulvi Abdul Qayyum v. Syed Ali Asghar Shah and 5 others (1992 SCMR 241) in which it was held that: "

10. It will be material to bear in mind, that a decree in a pre-emption suit is of a peculiar nature. Under Order XX, Rule 14, C.P.C, the title of the property accrues to the decree-holder on payment in the court of purchase money together with costs, if any. It has not been controverted before us that the requirements of Rule 14 have already been complied with by the appellant. Thus, irrespective of the fact whether the possession is delivered to him or not, title in the property has vested in the appellant he is owner of the land in dispute. Viewed in this context, the respondents' opposition to the execution of the decree becomes all the more ethereal." It is evident from the case law referred supra that the consistent view is that there is no specific Article of Limitation Act, 1908 which regulates the filing of execution petition in the matter of decree for specific performance or a preemption matter and that the residuary Article 181 of the said Act will apply that provides a period of three years from the date when the right to apply accrues and if decree holder is in possession of property having paid or deposited the sale price he will not be required to file execution petition and that right to apply in the matter would arise when the judgment debtor refused to perform his part. In the instant case the findings of the trial court in the judgment dated 10.12.2012 were to the effect that the decree-holder was in possession of the property and had paid the earnest money while the balance sale price was deposited in terms of the decree of the court, as such, respondent No.1 could legally proceed with the execution of decree. In case of Mst. Iqbal Bibi and others v. Additional District Judge and others (PLD 2023 Lah. 157) it was observed as under: "13 Suit for specific performance is always suit for possession and as discussed earlier possession has already been with the decree-holder, therefore, decree holder does not require to file an execution petition for possession of the decretal land. Performance of the second part was upon the judgment-debtor and the decree holder can file execution petition on her refusal for the execution of the remaining part of the decree. There is no cavil with the proposition that one, who succeeds in a litigation, unjustly must not retain the benefit. It is the birth right of every citizen in an Islamic state to seek and obtain justice. The principles in our jurisprudence, governing just dispensation to do justice in accordance with the law shall have to be kept in view. After receipt of the consideration amount and delivery of possession it does not lie to the mouth of judgment debtor to question the maintainability of the execution petition on the point of limitation."

5. As to the objection that the balance sale consideration was not deposited in the court within time, and that the court committed an error of law in passing the decree without providing a time period for depositing the balance sale consideration and also the penalty in case of violation of terms of decree; suffice it to observe that the decree was silent and did not stipulate the period during which balance sale consideration was to be deposited and, therefore, respondent could not suffer due to act or fault of court which passed the decree and that the respondent having deposited the amount on vacation of injunctive order passed in appeal, could not be made to suffer adversely. Reference in this regard is made to the Nawab through Iqbal Bibi (widow) and 2 others v. Sain Allah Ditta through Legal heirs and 2 others (2001 YLR 2497). Even otherwise the Executing Court has to execute the decree as it is and could not question validity of the same on the ground which could have been raised in appeal against the decree that in the instant case had already been dismissed. Another factor in this case was that the suit was decreed on 10.12.2012 against which an appeal was filed on 02.1.2013 and on 02.1.2013 status quo was ordered to be maintained with the result that execution petition could not be filed and that the appeal was dismissed for non-prosecution. On 29.4.2016 an application for restoration was filed which also remained pending for a considerable time and thereafter same was dismissed on 01.3.2017 while the execution petition was filed on 28.2.2020 which was within three years from the date of actual date of termination of proceedings.

6. For the reasons supra the impugned order being just, fair and legal, calls for no interference. Resultantly, the revision petition is without any substance which is dismissed. JK/R-19/L Revision dismissed.