2002 PLP 2770 (YLR)

The brief facts out of which the present revision petition arises are that the respondent No.1 secured a loan amounting to Rs.88,000 on 1‑5‑1992 from the respondent No.2 for construction of a house. The house of respondent No.1 was mortgaged with the respondent No.2. An agreement was also executed between the respondent No.1 and respondent No.

2. According to the terms and conditions of the agreement the respondent No. 1 had to repay the loan to the respondent No.2 in easy instalments. The respondent No.1 failed to discharge his liabilities in terms of the agreement. The respondent No.2 filed a petition under section 30 of the House Building Finance Corporation Act before the learned District Judge Sheikhupura who accepted the same vide order dated 15/26‑11‑1999. The learned District Judge in the judgment directed that the outstanding amount of Rs.1,61,640 to be recovered through sale of property of respondent No.

1. The petitioner filed an application before the learned District Judge Sheikhupura on 8‑10‑1999 on the ground that he purchased the disputed house against a consideration of an amount of Rs.60,000 through Mutation No.2727 dated 16‑8‑1997, which was dismissed by the learned District Judge vide order dated 21‑10‑1999. The learned District Judge passed the order on the execution petition filed by the respondent No.2 for execution of the decree and directed the learned Civil Judge for execution. During the pendency of the execution petition the petitioner filed objection petition before the learned Civil Judge who dismissed the same vide order dated 11‑12‑2000. The petitioner being aggrieved filed appeal before the learned District Judge who dismissed the same vide order dated 7‑12‑2001, hence the present revision petition.

2. The learned counsel of the petitioner submits that the learned Civil Judge was erred in law to dismiss the objection petition without framing the issues and passed the impugned order in violation of the mandatory provisions of C.P.C. i.e. Order 21, rules 58, 59 and

62. He further submits that impugned orders of both the Courts below are not in accordance with law laid down by the superior Courts. In support of his contentions, he relied upon the case of Shahida Parveen v. Saeed Mirza and another (1990 CLC 938).

3. I have given my anxious consideration to the contention of the learned counsel of the petitioner and perused the record myself.

4. It is admitted fact that petitioner filed application before the Trial Court on 8‑10‑1999 for setting aside the decree which was dismissed by the learned District Judge on 21‑10‑1999. The petitioner did not challenge this order before any higher forum. Subsequently, petitioner filed objection petition before the Civil Judge Sheikhupura which was dismissed by the learned Civil Judge vide order dated 11‑12‑2000 in the following terms:‑ "Net result of above discussion is that the present petitioner has filed this petition with mala fide intention which has no force because he has already submitted his contention before the learned Trial Court and now he filed the instant petition just to prolong the case, hence, the petition in hand, is hereby dismissed with no order as to costs. " The order of the Executing Court was upheld by the learned District Judge vide judgment dated 7‑12‑2001 in the following terms:‑ "The objection‑petitioner filed a similar application in this Court on 8‑10‑1999 for being impleaded as a party which, however, was dismissed in default on the adjourned date i.e. 21‑10‑1999 as he failed to put up his appearance. The house in dispute was pledged by means of Registered Deed No.725 dated 24‑4‑1991, according to Condition No.9 of the deed any transaction of sale or transfer which has not been permitted by the Corporation in writing shall be void. In this view of the matter, the sale‑deed or mutation if any executed by the judgment -debtor in favour of the petitioner is void, without having any bearing on the right of the Finance Corporation or the decree ultimately passed in his favour. It is also well‑settled that the Executing Court must execute the decree as it is and cannot determine question relating to pre‑decretal matter whether it be the Court which passed the decree or the Court to which it has been sent for execution. " The afore‑said operative parts of the impugned orders clearly reveals that the findings against the petitioner that the petitioner did not challenge the order dated 21‑10‑1999 before any higher forum, therefore, same is final between the parties on the well‑known principle of resjudicata as per principle laid down by the Honourable Supreme Court in Pir Bakhsh's case (PLD 1987 SC 145). Even otherwise revision petition is not maintainable as per principle laid down by the Honourable Supreme Court in the case of Chaudhry Muhammad Sultan Zaman reported as (2001 SCMR 805)

5. In view of what has been discussed above, the petition has no merits and the same is dismissed. H.B.T./M‑973/L Petition dismissed.