2020 PLP 39 (CLCN)

ALI BAIG, J.

Through this civil revision petition filed under section 115, C.P.C., the petitioners have challenged the judgment/decree dated 04-10-2017, passed by the learned District Judge Skardu, whereby the learned 1st Appellate Court has dismissed the civil first appeal of the present petitioners by maintaining the judgment/ decree of the learned trial court.

2. Succinctly, the facts forming back-ground of the instant revision petition are that the present respondents Nos.1 and 2/decree holders had instituted a suit for declaration and possession of certain suit land fully described in head note of plaint situated at mouza Ingut Kharmang, against the respondents Nos. 3 and 4/judgment debtors in the trial court. The said suit was dismissed by the learned trial court vide judgment/decree dated 03-08-2000. The present respondents 1 and 2/decree holders had filed civil fist appeal in the court of learned District Judge Skardu, against the aforesaid judgment/decree of the learned trial court which was allowed by the learned 1st Appellate Court vide the judgment/decree dated 08-07-2002.

3. The aforesaid judgment/decree passed by the learned District Judge Skardu, was challenged in this court by the present respondents Nos.3 and 4/judgment debtors through civil second appeal which was allowed by this court vide judgment/decree dated 08-4-2006. The present respondents Nos.1 and 2/decree holders filed CPLA in the Hon'ble Supreme Appellate Court Gilgit-Baltistan against the judgment/decree of this court. The Hon'ble Supreme Appellate Court Gilgit-Baltistan has accepted appeal of the present respondents Nos.1 and 2/decree holders by setting aside the judgment/decree of this court dated 08-4-2006 by up-holding judgment/decree passed by the 1st Appellate Court dated 08-07-2002. The aforesaid judgment/decree passed by the Hon'ble Supreme Appellate Court gained finality and accordingly, the present respondents Nos.1 and 2/decree holders filed an execution petition in the learned Executing Court, Skardu for execution of decree against the judgment debtors/respondents Nos.3 and

4. During pendency of the said execution petition before the learned Executing Court, the present petitioners filed an application under Order XXI, rules 97/103, C.P.C. stating therein that the decretal land is in the possession of the present petitioners and the petitioners were not impleaded as defendants/ party in the suit, therefore, the decree passed in favour of respondents Nos.1 and 2/decree-holders is not executable.

4. The present respondents No.1 and 2 /decree holders contested the said application by filing replication/objection to the aforesaid application. The learned Executing Court after hearing the parties dismissed the aforesaid application of the present petitioners vide order dated 03-9-2016, which was challenged in the court of learned District Judge Skardu. The learned 1st Appellate Court after hearing arguments of the parties has also dismissed the appeal of the present petitioners vide the impugned judgment dated 04-10-2017, hence this revision petition.

5. The learned counsel for the petitioners contended that the impugned judgment/order passed by the learned 1st Appellate Court is contrary to law and facts of record of the case as the impugned judgment/order passed by the learned 1st Appellate Court is not maintainable and liable to be set aside. The learned counsel for the petitioners further argued that the major portion of decretal land is in the possession of the present petitioners and the petitioners were not impleaded as defendants in the suit, therefore, the petitioners had no knowledge regarding institution of the suit and passing of decree in favour of the respondents Nos.1 and 2/decree holders, therefore, the diputed decree to the extent of land which is in possession of the present petitioners is not executable against the present petitioners.

6. On the other hand the learned counsel for the respondents Nos. 1 and 2/ decree holders supported the impugned judgment passed by the learned 1st Appellate Court by contending that father of the present petitioners namely Ghulam Raza was defendant in Civil Suit No. C.S-38/98, and that suit was consolidated with the suit No.C.S. 74/97, by the learned trial court, therefore, the petitioners were well aware in respect of institution of the suit as father of petitioners had contested the suit up-to the apex Court, therefore, the instant petition is not maintainable and liable to be dismissed.

7. I have heard the learned counsel for the parties and perused the record.

8. From perusal of the record it reveals that father of the present petitioners namely Ghulam Raza was impleaded as defendant No.6 in the connected civil suit bearing No. C-S 38/98, which was later on consolidated with civil suit No.C S-74/ 97 by the learned trial court and has passed the judgment dated 03-8-2000. The father of the present petitioners has contested the case up to the Hon'ble Supreme Appellate Court Gilgit-Baltistan. The present petitioners are also co-sharers of respondents Nos. 3 and 4 and they were well aware regarding institution of suit against the respondents Nos.3 and 4 by present respondents Nos.1 and 2/decree holders, but they kept mum/silent till filing of the execution petition and they have come forward at the stage of execution with mala fide intention to defeat the execution of decree which has attained finality and the litigation had been going for last more than 22 years. It may be observed that it cannot be said that the petitioners were un-aware of pending proceedings which lasted for more than 22 years, therefore, at the time of execution of decree they cannot be permitted to object to its execution considering that they are estopped on the ground of their such conduct. From the conduct of the petitioners, it appears that the petitioners have not approached to the Executing Court with clean hands, therefore, the learned Executing Court as well as the learned Ist Appellate Court have rightly dismissed the petition of the petitioners filed under Order XXI, rules 97 and 103, C.P.C.

9. I have come to the conclusion that both the learned courts below have not committed any material irregularity while passing the impugned judgments/orders warranting interference by this court by invoking its revisional jurisdiction. Consequently, I do not find any substance and merit in this revision petition, therefore, this revision petition is dismissed leaving the parties to bear their own costs. File. ZC/164/GB Revision dismissed.