1989 PLP 4820 (MLD)

(d) Civil Procedure Code (V of 1908)‑‑‑ ‑‑‑S.100‑‑Second appeal‑‑Scope‑‑Findings relating to questions of fact could not be disturbed in second appeal. Hanif Akhtar for Appellant. A.W.Chaudhary for Respondent. Date of hearing: 21st May, 1989. This Regular Second Appeal is directed against the judgment/decree dated the 26th of October, 1986, passed by the learned Addl. District Judge, Lahore, whereby the appellant‑defendant's appeal was dismissed.

2. The parties were transferees of two contiguous properties. The respondent‑plaintiff Harm Abdus Sattar was given house No. B‑1382 whereas the appellant‑defendant Mst. Meraj Begum was transferred house No. B‑1045. A room became a bone of contention between the two. The appellant‑lady was able to get an order of ejectment therefrom against the respondent and had allegedly obtained possession of the entire house transferred to him. The order of ejectment was ultimately set aside by my learned brother Muhammad Afzal Lone, J. on the 29th of January, 1980, m S.A.O. No. 149 of 1972. He relied upon demarcation (Exh. D.3) dated the 8th of August, 1977, made by the Settlement Department whereby the room was held to be a part of house No. B‑1382, Consequently he sought restoration of possession through the present suit.

3. The appellant Meraj Begum contested the suit objecting to its maintainability. She categorically traversed if the room in question formed part of the house transferred to the respondent. She explained that the portion she had obtained in execution had been demolished due to torrential rains and that the so‑called room was no more available at the site to be delivered back to him. She prayed for rejection of the plaint under Order VII, rule 11, C.P.C.

4. Appropriate issues were framed on these 'pleadings. The trial Court overruled the objection that the suit was not maintainable. The lower appellate Court also came to the same conclusion and upheld the decree for possession.

5. Reliance was placed upon Sheikh Ghulam Nabi, and others v. Ejaz Ghani, and others (1982 S C M R 650) and Muhammad Yaseen v Sheikh Ghulam Murtaza and others (P L D 1988 S C 163) for the view that the only remedy for restoration of possession earlier taken in execution was through an application under section 144, C.P.C., and that in any event an independent suit did not lie. The objection though quite substantial on the face of it, was not much enuring inasmuch as the question falling for consideration between the parties related to execution, discharge or satisfaction of a decree. Section 47, C.P.C., appeared to be attracted and it provided that such a question arising between the parties to a decree or persons clawing under them, will have to be settled by the Executing Court itself through an application made in that behalf. It barred a suit but subsection (2) thereof contained a pragmatic provision which enables an Executing Court to treat such a suit as an application. Examining the suit from this angle, there was nothing to prevent the Court from treating the same as an application. Thus, even if the suit was filed with conscious mind that it was not competent, the respondent could claim that it may be treated rather as an application under section 47 C.P.C. Counsel for the appellant could not show any provision or authority to the contrary. The genesis really was to make a decision, rendered between the parties during the course of execution, final with a view to save them from further litigation. Here, even though the Courts below treated the lis as a suit, yet this Court in the second appeal could treat the same with impunity as an application falling under section 47 read with section 144, C.P.C

6. The basic averment made by the respondent was that he was wrongly dispossessed from the property through execution process. Evidently the dispute arose out of, or related to execution of the order and was clearly within the mischief of section 47, C.P.C. The two authorities cited on behalf of the appellant have no application to the facts of the case in hand. In both of them the element of section 47, C.P.C., was not considered. The respondent's suit may not be thrown away merely because it did not lie. The effort on the other hand shall be to save it as all rules were intended to advance justice rather than to stifle it.

7. One of the defences conceived by section 47 (2) ibid. was the lapse of limitation against any such suit or application but the written statement filed on behalf of the appellant‑defendant did not raise it. The corollary would be that the suit when treated as an application was within the prescribed limitation. No other point was urged. The other findings related to questions of fact and cannot be disturbed in second appeal. Consequently the R.S.A. is dismissed leaving the parties to bear their own costs. A.A./M‑1662/L Appeal dismissed.