1999 PLP 415 (CLC)

The respondents preferred an appeal against the decree, which was registered as Appeal No. 127 of 1997, and was heard by the learned IXth Additional District Judge, Karachi (East), who maintained the findings of the Trial Court on factual issues except on mesne profits and came to the conclusion that the decree in Suit No.2226 of 1978 was binding on the applicant. Consequently, he held that the applicant cannot file the suit without getting a declaration that the decree in above suit is not binding on him. The finding on mesne profits was also reversed. It may be pointed out that while setting aside the judgment and decree, the learned Additional District Judge observed that the appellants have not been given any period to construct their own house, under the decree. They may be given reasonable time to construct their own house and vacate the suit house and permitted the appellants to construct their house within two years, by observing as under:‑‑

"In my view this would be unjust and improper if any reasonable time is not provided to the appellant to construct their own house and vacate the house in question. Although the compromise decree does not provide any period and in my view the same has been done inadvertently, a considerable and rlrasonable time should be given to the appellant for constructing their own house so that the law and spirit of the compromise decree is fulfilled. Therefore, in my view the period of two years would be sufficient for the appellants to construct their‑own house. The appellants are, therefore, directed to construct their own house within two years from today." Resultantly, the appeal filed by the respondents was allowed by the judgment, dated 30‑11‑1995 which has been impugned by both parties through these revision applications. The applicant has come in revision against the dismissal of his suit, whereas, the respondents have challenged the directions of the learned Additional District Judge whereby the respondents were given time to construct their own house within two years, through the above revision application. I have heard the learned counsel for the parties and also perused the record and proceedings of the matter including the proceedings of Suit No.2226 of 1978 and Execution Application No.30 of 1988. Mr. Zia Qureshi, learned Advocate for the applicant maintained that the learned Additional District Judge erred in holding that the decree between the respondents and Rafiqur Rehman was binding on the applicant; he contended that the applicant was not a party to the proceedings, as such, the decree between the respondents and Rafiqur Rehman was not binding on him. The applicant can file a separate suit on his own right, as he acquired the ownership right by way of gift. The learned counsel for the respondents supported the impugned judgment and contended that learned Additional District Judge's view is correct that suit cannot be filed unless the applicant obtains a declaration that the terms of the decree were violated, thus, the applicant cannot maintain a suit for possession. The learned counsel for the respondents in support of the revision application filed by them contended that once the suit of the applicant was dismissed in appeal filed by the respondents, the learned Additional District Judge exceeded its jurisdiction by directing the respondents to construct their house within two years. In the present case, facts are almost admitted. The suit filed by the respondents against Rafiqur Rehman ended in compromise, on the basis of which decree was drawn on 30‑9‑1984, whereby, said Rafiqur Rehman was declared owner of the suit house, the respondents were allowed to remain in possession of the house till they construct their own house. It is also an admitted fact that Execution Application No.30 of 1988 for execution of the decree was filed, which was dismissed by order, dated 11‑8‑1988 as stated above. Said Rafiqur Rehman gifted the house in suit in favour of the applicant, who filed the suit for possession and mesne profits against the respondents. The moot point in the present revision applications is whether relief for possession claimed by the applicant in his suit was a right granted under the decree, the reply hinges around the provisions of section 47, C.P.C., which are as follows:‑‑

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47. Questions to be determined by the Court executing decree.‑‑‑ ‑‑ (1) All questions arising between the parties to the suit in which the decree was passed, or their representatives and relating to the execution, discharge or satisfaction of the decree, shall be determined by the Court executing the decree and not by a separate suit. (2) The Court may, subject to any objection as to limitation or jurisdiction, treat a proceeding under the section as a suit or a suit as a proceeding and may, if necessary, order payment of any additional court‑fees. (3) Where a question arises as to whether any person is or is not the representative of a party, such question shall, for the purposes of this section, be determined by the Court." There can be no doubt that decree for possession granted in favour of Rafiqur Rehman in Suit No.2226 of 1978 is an executable decree. An executable decree for possession precludes fresh suit for possession of the property by concerned parties as ruled by Privy Council in the case of Sasi Sekhar Shwar Roy v. Lalit Mohar Maitra AIR 1925 PC

34. In the case of Abdul Wahid v. Abdul Ghani and others PLD 1963 Kar. 990 it was held that if a decree grants certain rights to the parties, there can be no doubt that those rights have to be enforced in the execution proceedings and not by a separate suit, as matters relating to the execution of such rights are matters relating to the execution of decree. In the present case, the applicant Mehar Alain Gohar's position is representative in interest of the decree‑holder, namely, Rafiqur Rehman in whose favour there is a decree of possession in Suit No.2226 of 1978. The present suit is also for possession. The matters which relate to execution of such rights, have to be enforced by the execution proceedings and not by a separate suit, for the reasons that subsection (1) of section 47, C.P.C: regulates the forum for enforcement of rights under the decree which bars fresh suit in respect of these matters. One of the important pronouncement on t1iis point is to be found in the case of Murari Lal v. L. Debi Saran and another AIR 1956 All. 555 from Indian jurisdiction, wherein it was held that "if a decree grants certain rights to the parties, there can be no doubt that those rights have to be enforced in the execution proceedings and not by a separate suit, as matters relating to the execution of such rights are matters relating to the execution of the decree". The facts of the above case were that one Lala Debi Saran alongwith another person obtained a lease on a monthly rent of a piece of land for fixed term of 5 years and thereafter, constructed 5 shops on it. The original owner (Zamindar) granted Theka to Lala Murari Lal in respect of the some properties including the property which had been given on lease to Lala Debi Saran. After the expiry of term of lease in favour of Debi Saran, Lala Murari filed a suit against him for his ejectment, from the leased land which was decreed. Lala Debi Saran was given right under the decree to remove the material of the construction which had been built by them on the leased land. Appeal filed by Lala Debi Saran before the District Judge was dismissed. He filed second appeal in the High Court and also filed an application for stay of the execution of the decree till disposal of the appeal. High Court did not stay the execution and authorised the decree‑holder to take possession of the land together with its structure but in order to safeguard the rights of Lala Debi Saran directed the decree‑holder not to demolish the construction till disposal of the appeal. The decree‑holder entered into possession of the land together with construction on it but he did not demolish the construction in pursuance of the order of the High Court. Appeal was also dismissed by the High Court and appellant Lala Debi Saran was allowed one month time for removing the material from the date of decree of the High Court. He made an application after expiry of one month to Executing Court asking for its assistance to remove the material on the ground that he had not been permitted to remove the structure within the period of one month by the tenant who were in possession of the land. The application was dismissed and Lala Debi Saran was directed to bring a regular suit for the enforcement of his claim. In pursuance of said direction, he filed a suit against the decree‑holder, his tenants and also Zamindar who had originally granted the lease in favour of the Lala Debi Saran and subsequently the Theka in the name of Murari Lal. In this suit Lala Debi Saran claimed that he be allowed to remove the material which had been constructed by him from the land and also claimed decree for Rs.1,500 as damages suffered by him due to non‑removal of the material. The Trial Court dismissed the suit on the ground that it was barred by section 47 of C.P.C. as well as section 11, C.P.C. The Appellate Court did not agree with decision of the trial Court. It was of the opinion that neither section 47 nor section 11, C.P.C. was applicable to the present case and allowed appeal and remanded the case for disposal according to law. The remand order was challenged before the High Court. The High Court set aside the order of remand of the Appellate Court as the High Court was of the view that section 47, C.P.C. bars the suit. In the present case, a decree for possession in favour of Rafiqur Rehman was granted in Suit No.2226 of 1978. The execution application was filed. The Executing Court dismissed application for execution as stated above. Applicant Mehar Alain Gohar is the representative in interest of said Rafiqur Rehman. The suit filed by the applicant, in fact, was in respect of right granted under a decree, as such, the suit of the applicant was barred under the provisions of section 47(1), C.P.C. and such rights have to be enforced by the execution proceedings only. The applicant had also claimed mense profits due to non‑delivery of possession by the respondent, it may be contended that this relief could not have been granted to him in execution proceedings. In my view the relief for mesne profits is consequential to the relief for possession flow from it. The applicant can claim mesne profits in the execution proceedings subject to prove. The execution application has been dismissed by the lower Court, by observing that the decree was unexecutable and any violation of terms of compromise gives fresh cause of action to bring a regular suit for ejectment, perhaps due to wrong notion about the provisions of section 47, C.P.C. Under the provisions of section 47(2), C.P.C., it is open to the Court to treat a suit as a proceeding under section 47, C.P.C. subject to question of limitation or jurisdiction. In view of this provisions, even if, a suit is not maintainable the Trial Court can be directed to treat it as proceedings under section 47, C.P.C. and to decide the same subject to question of limitation and jurisdiction. In the present case, it would be appropriate in the circumstances of the case, to direct the lower Court to treat the suit of the applicant as proceedings under section 47, C.P.C, subject to the question of limitation or jurisdiction. Consequently, the above applications are allowed. The findings of both the learned Courts are set aside. The matter is remanded to the learned Senior Civil Judge with direction to treat the suit of the applicant as proceedings under section 47, C.P.C. subject to limitation and jurisdiction and the same be disposed of according to law. The parties are allowed to bear their own costs. H.B.T./A‑262/K Order accordingly.