2007 PLP 1558 (MLD)

MUHAMMAD MUZAMMAL KHAN, J.

Instant civil revision assailed orders/judgments, dated 7-9-2006 and 14-9-2006 passed by the learned Civil Judge and learned Additional District Judge, Sargoda, whereby objection petition and appeal were dismissed, respectively.

2. Succinctly, relevant facts are that respondent No.1 in the year, 1971 filed a suit for possession through pre-emption against the petitioners regarding sale of land measuring 250 kanals through Mutation No.29 sanctioned on 5-5-1970. Petitioners being defendants in the suit contested the same with the plea that sale in their favour stood annulled by means of a consent decree, dated 12-1-1978. Parties were brought to issues and ultimately the suit was dismissed by the Trial Court on 2-3-1982. Respondent No.1 also remained unsuccessful before the first Appellate Court, as his appeal was dismissed on 20-3-1985 but he succeeded before this Court in his Civil Revision No. 1746 of 1985 which was accepted on 23-4-2001 and his suit was decreed subject to deposit of an amount of Rs.31,285 after adjustment of 1/5th amount if already deposited. Decree passed by this Court on 23-4-2001 was maintained by the Hon'ble Supreme Court on 8-3-2006 through erstwhile judgment in C.P. No. 2562 of 2001.

3. Both the judgments one by this Court on revision petition filed by respondent No.1 whereby his suit was decreed and 'that by the Hon'ble Supreme Court, with all deliberations emphasized in detail the impact of judgment in favour of the petitioners allegedly passed on 2-1-1978. Relevant portion of the judgment by the Hon'ble Supreme Court is reproduced, for ready reference and convenience, as under:-- "(10) Last, it was contended by the learned counsel for the petitioners that by another party, another suit was instituted challenging the sale in question which stood decreed on 2-1-1978. That such decree having the effect of cancelling the disputed sale no pre-emption suit could exist nor could it be decreed. We have given our anxious thought to this aspect as well and believe firstly, that the present pre-emptor was not a-party to such suit and moreover, it was obtained on 2-1-1978 on the conceding written statement of defendant. Being a consent decree, it was not more than a mere agreement between the parties regardless of the judicial imprimatur that it contained. Such agreement without the pre-emptor being a party to it, is not binding upon him. The learned High Court was, therefore, justified in holding that such consent decree was- collusion between the parties thereto to damage the already pending suit for pre-emption. Such suit could not have been filed in the absence of the present vendees and if such vendees were a party thereto, they could well have informed about the pendency of pre-emption suit of Muhammad Hayat. " Petitioners attempted to have view of judgment by the Hon'ble Supreme Court, dated 8-3-2006 but could not succeed, as their review petition has B been dismissed by this time.

4. Petitioners besides filing a review petition before the Hon'ble Supreme Court, filed simultaneously an objection petition before the executing Court with the alike objection of cancellation of sale through decree, dated 2-1-1978, which had seen its fate up to the apex Court of this country but the executing Court issued warrant of possessjon under the decree passed in favour of respondent No.1 vide order, dated 7-9-2006. Petitioners went in appeal but without any success and thereafter they filed the instant petition. Respondent No. 1 in response to notice by this Court appeared and was represented through his counsel.

5. I have heard the learned counsel for the parties and have examined the record, appended herewith. Petitioners had obtained a collusive decree on 2-1-1978, which was passed on a confessional statement of the vendee pending suit for possession through pre-emption by respondent No.1 without his impleadment. Validity/fate of this collusive decree was determined by this Court, as well as, by the Hon'ble Supreme Court, as the petitioners had attempted to take shelter thereunder in first round of litigation. It was held by the apex Court that decree in favour of the petitioners being consent is no more than a mere agreement especially when the same was obtained at the back of the pre-emptor and thus created no right which required no further determination by the executing Court. I was not persuaded with the argument of the learned counsel for the petitioners that since no specific order dismissing their objection petition has been passed by the executing Court, case may be remitted back for this purpose. By issuance of warrants of possession under the decree passed by this Court on 23-4-2001 objection petition which, on the face of it, was frivolous will be deemed to have been dismissed by the executing Court, by implication. I have no doubt that after mandate by the Hon'ble Supreme Court in paragraph 10 of the judgment, dated. 8-6-2006, no further adjudication/decision about the same matter was needed, rather could not have been given by the executing Court. Both the Courts below having concluded the lis in accordance with law, no interference in revisional jurisdiction of this Court was made permi Bible, under law.

6. For the reasons noted above, no illegality/irregularity in terms of section 115, C.P.C. was committed by the executing or the Court of appeal, thus instant petition being devoid of any merit, is dismissed with no order as to costs. H.B.T./A-104/L Revision dismissed.