1989 PLP 480 (MLD)

Mst. Karimat v. Majnoon and 2 others 1980 CLC 66 and Sher Muhammad v. Muhammad Khan AIR 1924 Lah. 352 ref. Mirza Hafeez‑ur‑Rehman for Petitioner. Mian Iqbal Hussain for Respondent. Date of hearing: 4th February, 1989. This judgment will dispose of Civil Revision No. 2 of 1989 and Civil Revision No. 3 of 1989 as common questions of law and fact arise therein.

2. The facts forming background of the dispute are that the petitioner is in possession of a shop situate on Brandreth Road, Lahore as a tenant under the respondent. This property was admittedly exempt from the operation of the Punjab Urban Rent Restriction Ordinance, 1959. The respondent/landlord sought the eviction of the petitioner from the shop by filing a regular suit for ejectment under the Transfer of Property Act 1984 before the Civil Court. This suit was decreed on 8th of January, 1981. Aggrieved by it, the petitioner filed an appeal which was dismissed by an Additional District Judge at Lahore on 8th July, 1984. It was stated by the learned counsel for the parties that the execution of the decree had been stayed during the pendency of the appeal by the lower appellate Court.

3. On 12th of November, 1984 an application for execution was filed by the respondent in which it was prayed that the decree of the trial Court be executed though the fact that the petitioner had filed an appeal which had been dismissed by the Addl. District Judge, was mentioned. The judgment‑debtor/petitioner objected to the execution on two grounds; firstly that in the execution petition, filed on 12th of November, 1984, the respondent/decree‑holder had prayed for the enforcement of the decree of the trial Court and not that of the appellate Court and as such petition was barred by time; and secondly that as the lower appellate Court had failed to draw the decree sheet, after the dismissal of the appeal, the execution petition was not maintainable. These objections were repelled by the executing Court on 8th of November, 1986. The petitioner thereafter went in appeal which was dismissed on 7th of December, 1988 by an Additional District Judge, Lahore. Hence, this revision.

4. Mirza Hafeez‑ur‑Rehman, Advocate, the learned counsel for the petitioner has challenged the finding of the two Courts below that as the appellate Court while dismissing the appeal of the petitioner against the decree of the trial Court, had merely affirmed it, the operative decree remained to be the decree of the Civil Court. According to the learned counsel, since the appeal, filed by the petitioner against the decree of the trial Court, was decided on merits, the decree of the Civil Court stood merged in the decree of the appellate Court which alone could be executed. This contention of the learned counsel is well founded. In F.A. Khan v. The Government of Pakistan PLD 1964 SC 520, it was laid down that once an appeal is filed, the finality of the decree of the trial Court stands destroyed and after the decision of the appeal, the decree which can be executed is that of the appellate Court, even though it had merely affirmed the decision of the trial Court. In the face of this authoritative pronouncement, the Courts below acted with material irregularity in holding that operative decree remained to be the decree of the trial Court notwithstanding the filing and the dismissal of the appeal. This finding, however, does not conclude the matter as the next question which arises is whether the execution petition can be dismissed only on the ground that the respondent/decree‑holder had prayed for the execution of the decree of the trial Court and not the appellate Court. In the execution petition it was specifically mentioned that the appeal filed by the petitioner had been dismissed by the lower appellate Court. Consequently, since all the necessary facts, as required by Order XXI, rule 11 of the Civil Procedure Code had been mentioned m the application for execution, it could not be dismissed on such a hyper-technical objection. In such circumstances even if no specific prayer was made, the same could be granted by the Court on the principles contained in Order VII, rule 7, C.P.C.

5. It is next contended that since the appellate Court had failed to draw the decree, no execution petition could be instituted by the respondent. It is well -settled that the operative mandate of the Court is the decree or the order, as the case may be, while the judgment furnishes reasons for the decision of the case. Consequently, what is executable is the decree and not the judgment of the Court. On the present record it appears that no decree was drawn by the appellate Court while deciding the appeal. The learned counsel for the petitioner wishes me to hold that the execution petition, filed by the respondent, was incompetent and liable to dismissal on this ground alone. I am, however, in no position to accept this contention. The failure on the part of the lower appellate Court to perform its legal obligation by drawing up the decree, cannot result in dismissal of the application for execution, filed by the respondent. The only effect of non -preparation of the decree was that the executing Court could not proceed with the application which was to be kept pending till the preparation of the decree. In Mst. Karimat v. Majnoon and 2 others 1980 CLC 66 and Sher Muhammad v. Muhammad Khan AIR 1924 Lah. 352, it was held that an appeal filed before the preparation of a decree sheet cannot be dismissed but should be kept pending so as to enable the party to have the decree sheet prepared. This principle full applies to the instant case also. For the foregoing reasons these civil revisions are accepted and it is directed that the execution petition filed by the respondent, be kept pending by executing Court till a copy of the decree is produced by the respondent. The lower appellate Court which decided the appeal of the respondent on 8th of July 1984 is directed to draw up the decree within a period of seven days from the filing of an application in this behalf. There shall be no order as to costs. H.B.T./Z‑93/L Order accordingly.