1997 PLP 745 (MLD)
Raja SHAH ZAMAN and others‑‑‑Appellants Versus ZAMINDARAN BIRGAL through Representatives‑‑‑Respondent
| Citation | 1997 PLP 745 (MLD) |
| Forum / Court | Chief Court Gilgit |
| Bench Members | Muhammad Khurshid Khan, Member II |
| Parties | Raja SHAH ZAMAN and others‑‑‑Appellants Versus ZAMINDARAN BIRGAL through Representatives‑‑‑Respondent |
Q1: What are the key laws and sections cited in 1997 PLP 745 (MLD)?
This judgment primarily cites: statutory provisions as referenced in Pakistani case law index.
Q2: Which judicial bench decided the case 1997 PLP 745 (MLD)?
The case was heard and decided by the Chief Court Gilgit bench comprising: Muhammad Khurshid Khan, Member II.
Q3: What is the official citation format for this judgment on Pakistan Law Portal?
Cite this legal precedent as: 1997 PLP 745 (MLD) (Raja SHAH ZAMAN and others‑‑‑Appellants Versus ZAMINDARAN BIRGAL through Representatives‑‑‑Respondent). Read the full summary and cross-referenced laws free on Pakistan Law Portal.
Representation
- Muzaffar Ali and Shafqat Wali for Appellants
- Mir Ghulam Sarwar for Respondents.
Headnotes / Summary
Specific Relief Act (I of 1877)‑‑‑ ‑‑‑‑S.42‑‑‑Arbitration' Act (X of 1940), S.17‑‑‑Civil Procedure Code (V of 1908), S.47‑‑Declaratory decree‑‑‑Possession through execution of declaratory decree‑‑‑Validity‑‑‑Suit for declaration and consequential relief wherein no relief for possession of suit property was sought‑‑‑Matter in controversy was referred to Arbitrator who gave award in support of respective rights of parties and same subsequently became rule of Court‑‑‑Plaintiff thereafter, filed another suit wherein he sought possession of land in question but such suit could not succeed‑‑‑Plaintiff ultimately filed execution application against declaratory decree‑‑‑Effect‑‑Remedy which was neither claimed in suit nor granted either by Arbitrator or by Court could not be executed during execution proceedings, for Executing Court could not grant any remedy which was not included in decree‑‑‑Only remedy for plaintiff was to file suit for possession‑‑‑Plaintiff, however, filed such suit but same was rejected by Trial Court‑‑‑Plaintiff could again seek such remedy if same was available to him‑‑‑Plaintiff in his application for execution had claimed that he was in possession of land in question, but was dispossessed‑‑‑Such fact although was not brought on record, if true, would also support filing of fresh suit and not for possession through execution of declaratory decree‑‑‑Orders of Courts below executing declaratory decree were set aside and plaintiff's application for execution was dismissed in circumstances. PLD 1963 SC 265; PLD 1973 Kar. 686; PLD 1968 SC 342 and PLD 1985 Kar. 705 ref.
Judgment & Decree
The brief facts of the case are that the present appellant Raja Shah Zaman, filed a civil suit in the Court of Civil Judge, Gupis against the present respondents. During the pendency of the suit the parties agreed to refer the matter for arbitration and accordingly the matter was referred to the arbitrators appointed by the parties. The arbitrators after consideration submitted their award on 30‑8‑1983 before the Civil Court Gupis. The trial Judge asked objections against the award. The present appellant filed objections against the award which were rejected by the Civil Judge and he cannot succeed right to the Court of Judicial Commissioner and the award which was made rule of the Court by the Civil Judge become final.
2. When the first round of litigation was exhausted the present appellant filed a fresh suit against the respondents before the Civil Judge Gupis on 24‑2‑1991. The suit was filed for declaration with consequential relief for possession. The said suit was decided against the appellant, then he filed the present execution application. The respondents filed objections which were turned down by both the Courts below. Hence this appeal.
3. I have gone through the record of the case and have heard the learned counsel for the parties at length. Admittedly the decree under reference is based on award and the arbitrators have simply determined the rights of the parties in respect of the disputed land. The appellant who was himself plaintiff in the litigation had filed a suit which was purely for declaration with consequential relief for permanent injunction. There was absolutely no prayer for possession The arbitrators accordingly passed award in which only rights of the parties were determined and no decree for possession was awarded in favour of the plaintiff or defendants. The main contention of the learned counsel for the appellant was that the declaratory decree based on the award of the arbitration is not executable and on this basis the decree‑holder cannot claim the possession. They relied on the following case‑laws:‑‑‑ (1) PLD 1963 SC page 265. (2) PLD 1973 Karachi page 686. (3) PLD 1968 SC page 342. (4) PLD 1985 Karachi page
705. It is held in these case‑laws that the decree should be executed in spirit of its terms and conditions and not in derogation of such terms the executing Court neither to go behind of what decree stands for nor it to modify those terms.
4. The remedy which is neither claimed in the suit nor granted either by the arbitrator or by the Court cannot be executed during the execution proceedings because the executing Court cannot grant a remedy which is not in the decree. The only remedy for the appellant was to file an independent suit for possession. He did it but the same was rejected by the Trial Court. He can again seek such remedy if the remedy is available for him.
5. The appellant in his application for execution has claimed that he was in possession of the land in dispute but subsequently he was dispossessed. This fact although is not brought on record, if true it also supports for a fresh suit not for the possession through execution of a declaratory decree.
6. I, therefore, in the light of the above discussions accept this appeal and set aside the orders of both the Courts below and dismiss the application of the appellant for execution. Parties to bear their own costs. A.A./20‑G ????????????????????????????????????????????????????????????????????????????? Appeal accepted.