2012CLC386 (PLP)

CH. MUHAMMAD TARIQ, J.

This writ petition has been directed against order dated 14-6-2005 passed by Mirza Rafi Uzzaman, learned District Judge, Chakwal in Civil Revision No.14 of 2005.

2. Precisely stated the facts of the case leading to the filing of this writ petition are that Manzoor Elahi, predecessor-in-interest of the petitioners, acquired decree for pre-emption on 18-11-1979 regarding land measuring 3 marlas, 46 square feet. respondent preferred an appeal and during the pendency of the same, compromise was effected by which it was settled that adjoining underneath land total 10 marlas would be sold to Manzoor Elahi for Rs.80,

000. According to the agreement, decree for pre-emption vanished and Manzoor Elahi was bound to pay the amount within specified time but he did not pay. As a result, dispute arose regarding superstructure, so the respondent could not transfer 10 marlas of land to Manzoor Elahi. An application was moved by Manzoor Elahi in the appellate court and Manzoor Elahi was directed to deposit Rs.67,500 in the court. Thereafter, order regarding execution of sale-deed was passed on 4-1-1981. A revision was preferred and order of the appellate court regarding deposit of Rs.67,500 was recalled. Against that order, an appeal was preferred in the High Court which Was accepted on 30-3-1985. It was declared that executing court would decide the fate of the decree. The executing court opined that land which was pre-empted would he executable. Appellate court also maintained the order of the executing court. The parties preferred revision in the High Court which was decided on 9-6-1998; The operative part of the judgment is reproduced as under:

"For the reasons above this revision is disposed of with the observation that the decree of the court will be executable to the extent of three marlas 46, Sq. ft. and that the compromise regarding seven marlas of land being an agreement extraneous to the subject-matter of suit, the decree to the extent thereof cannot be executed while the question of treating the execution application as a suit will be determined by the executing court in accordance with law and on its own merits, in the light of the observation hereinabove. "

3. Thereafter, the executing court held that execution petition regarding 7 marlas of land would be treated as suit. The respondent challenged the order of executing court through revision which was accepted vide order dated 14-6-2005 ' Hence this writ petition.

4. Learned counsel for the petitioners has put more thrust on his argument that any matter pending before the executing court under section 47, C.P.C. could be treated and dealt with as a suit. Since a dispute arose between the parties out of a compromise, a separate suit does not lie and to avoid the future longstanding litigation between the parties, the executing court decided the controversy between the parties treating it as a suit, therefore, the writ petition be allowed and the impugned order be set aside. In support of his contentions, learned counsel for the petitioners has relied on 2004 .YLR 1180, 2001 CLC 707 and 2004 YLR 1180.

5. Controverting the contentions raised by learned counsel for the petitioners; learned counsel for the respondent has argued that this Court has already given its finding that the matter in hand could not be dealt with by the executing court under section 47, C.P.C. Further contends that scope of civil revision and that of writ petition are almost the same and once a matter has been decided in a civil revision, it could not be re-agitated in the writ petition. Learned counsel avers that the instant writ petition is without any substance, it be dismissed.

6. I have heard the arguments advanced by learned counsel for the parties and have also perused the record with their able assistance.

7. Perusal of record highlights that the matter in hand was elaborately discussed by this Court vide judgment dated 9-6-1998 passed in Civil Revision No.236-D of 1988. Perusal of record also shows that the agreement to sell of 7 marlas of land was a mere agreement which does not create any title and it could only he enforced by filing a suit for specific performance. The executing court could not travel beyond thedecree and accordingly, it could decide the matter only to the extent of subject-matter of decree. All the contentions raised by learned counsel for the petitioners were earlier agitated before learned. courts below who have elaborately interpreted section 47 of C.P.C. while deciding the matter.

8. Before parting from this judgment, this Court is with full compromise with the arguments of learned counsel for the respondents that a writ petition could not be a substitute of second revision petition A while revision petition had already been dismissed by learned District Judge on the same grounds, therefore, the revisional order could not be challenged through constitutional jurisdiction. This Court further holds that in case of breach of terms and conditions of any agreement, or breach of a compromise decree which is a contract between the parties and its breach may offer cause of action to the other party for approaching a competent court seeking appropriate remedy. A compromise decree is in fact a contract with super added command of a Judge which matter cannot be resolved by an executing court while B exercising its jurisdiction under section 47, C.P.C.

9. In a nutshell, the executing court vide order dated 2-12-2004 has wrongly held that execution petition regarding 7 marlas of land can be treated as a suit while the revisional court has rightly set aside the order of the executing court. Law relied upon by learned counsel for the petitioners is not applicable in the circumstances of the case. No interference is called for. Resultantly, the writ petition in hand has no merit, hence dismissed. M.H./K-26/L?????????????????????????????????????????????????????????????????????????????????????? Petition dismissed.