2017 PLP 150 (CLCN)

AMIN-UD-DIN KHAN, J.

Through this civil revision petitioners have challenged the judgment passed by the learned Additional District Judge, Lahore dated 8.6.2009 whereby appeal filed by the petitioners was dismissed and the judgment/order dated 30.4.2009 whereby execution petition filed by the petitioners was dismissed.

2. Pre-admission notice was issued to the other side on 29.9.2009. As the matter is pending since the year 2009, record shows that Malik Muhammad Ashraf, Advocate filed power of attorney on behalf of the respondents but never appeared before the Court. Today position is the same, only learned counsel for the petitioners appeared, therefore, I have heard learned counsel for the petitioners and going to decide the matter which relates to execution.

3. Brief facts, of the case are that petitioners-plaintiffs filed a suit for permanent injunction in the year 1990 and during the pendency of the suit matter was settled between the parties through an arbitration award which was presented before the Court as Exh. C.1, operative part of the arbitration award is reproduced as follows:-- Learned trial court on 6.1.1993 decided the suit after recording statement of learned counsel for the parties and taking arbitration award on record. Order dated 6.1.1993 is also reproduced for ready reference:-- For execution of the above said order an execution petition was filed on 30.6.1997. After framing of issues evidence was recorded and the execution petition was dismissed vide order dated 30.4.2009. Appeal was preferred which also met with the same fate vide order dated 8.6.2009. Hence, this civil revision.

4. When confronted to the learned counsel that when the subject matter of the arbitration award/compromise between the parties was not the subject matter of the suit how the decree is executable; secondly, when the suit was for permanent injunction how that decree is executable in the way that petitioners want and thirdly, when execution petition was barred by time how same was proceedable, learned counsel for the petitioners relies upon "Precision Engineering Limited and others v. The Grays Leasing Limited" (PLD 2000 Lahore 290), "Muhammad Ismail v. Bibi Shaima" (AIR 1934 Patna 203), "(Sahu) Shyam Lal v. M. Shayamlal" (AIR 1933 Allahabad 649), "Ambalal Chunthabhai Patel and another v. Somabhai Bakorbhai Patel and another" (AIR (31) 1944 Bombay 46), "Lal Singh v. Mohan Singh and others" (AIR 1934 Lahore 623), "Khaavir Saeed Raza v. Wajahat Iqbal" (2003 CLC 1306), "West Pakistan Paint Mills (Pvt.) Limited v. Muhammad Ashraf Shagufta, Additional District. Judge, Lahore and others" (1998 SCMR 380), "Hassan Masud Malik v. Dr. Muhammad Iqbal and others" (1995 SCMR 766), "Ranjit Singh Hazari and others v. Juman Meah and another" (PLD 1961 Dacca 842) and "Laraiti Devi v. Sia Ram" (AIR 1957 Allahabad 820 (V 44 C 224 Dec.). States that even if part of the compromise is extraneous to the suit property even then same is executable. In the light of case law referred by learned counsel for the petitioners I cannot disagree with the argument of learned counsel. If part of the compromise decree is extraneous to the subject matter of the suit that may be executable in the light of law relied by learned counsel for the petitioners but in the instant case the position is otherwise. The suit is for permanent injunction and on the basis of statement the matter has been settled between the parties on the basis of some arbitration award. In the award as I have noted supra the plaintiff has been declared entitled to 7-1/2 marlas land without any specification of the property and further the suit has been disposed of without granting a decree in favour of the plaintiff-petitioner. In the above circumstances in the instant case the findings recorded by both, the courts below whereby it has been held that it is not a decree and further the compromise being not specific with regard to specification of the property is not executable. I am unable to disagree with the concurrent findings of the two courts below on this issue.

5. So far as finding of learned trial court that when Issue No. 1 has been decided against the petitioners there is no need to decide issue No.2 which relates to limitation is not correct application of mind by the learned trial court. When the first execution petition has been filed after three years of passing of the order the application was certainly barred by time and not proceedable under the law. There is no cavil to the rule that under section 36 of the C.P.C. the provisions of execution of decree apply to the orders also which are executable. In this view of the matter, I see no force in this civil revision, same stands dismissed. WA/M-163/L Revision dismissed.