2009 PLP 561 (MLD)

MAULVI ANWARUL HAQ, J.

On 15-4-1953 the plaintiffs/respondents or their predecessor filed a suit against the petitioners and defendants/respondents or their predecessor for administration of the estate of late M.A. Karim. After a full dressed trial a preliminary decree was passed on 13-12-1984. Another order was passed on 23-12-1984, which was described by the learned trial Court as a final decree. First appeals filed against the preliminary decree were allowed on 11-6-1989 by a learned Additional District Judge, Lahore. Civil Revision No. 1773 of 1989 filed by the plaintiffs/respondents was allowed on 10-5-2001, preliminary decree was restored with some modifications. It was, however, observed that what is being described as final decree is not final decree and the case was sent back to the learned Senior Civil Judge, Lahore, for passing a final decree.

2. It appears that ultimately it was decided to sell the immovable properties of the said deceased. On 12-7-2005 the petitioners filed an application under sections 15'- and 152, C.P.C. praying for amendment of the preliminary decree so as to include the six properties mentioned in the said application. The application was opposed primarily on the ground that the petitioners may file separate suit with regard to said omitted properties and it was complained that sale proceedings are being prolonged on the said pretext. The application was dismissed by the learned trial Court on 3-10-2005. A revision has been dismissed by a learned Additional District Judge on 8-9-2006.

3. Mian Nisar Ahmed, learned counsel for the petitioners contends with reference to evidence on record that the defendants admitted and it was otherwise established that the said six properties mentioned in the application did form part of the estate of M.A. Karim and these are to be distributed in accordance with preliminary decree. Mr. Zafar Iqbal Kalanori, learned counsel for private respondents while not seriously questioning the fact that the properties did form part of the said estate complains that in the suit filed as far back as in the year, 1953, the admitted co-sharers are not getting their inheritance in the form of proceed from the proposed sale.

4. I have gone through available record. My learned brother Jawwad S. Khawaja, J had admitted this writ petition for "hearing by means of elaborate orders recorded on 9-10-2006 and 21-11-2006. I deem it appropriate to observe that the contents of the said orders be deemed to be part of this judgment and read accordingly.

5. To my mind, the application has been wrongly couched as for amendment of the decree. Order XX Rule 13, C.P.C. provides for a decree to be passed by a Court in administration suit, the said provision of law envisages an inquiry by Court passing the decree, inter alia, for purposes of determining the estate of the deceased person which is to be administered. This inquiry can be made at any time before passing of a final decree. Although under the provisions of Partition Act, 1893, an order of sale of joint property is to be treated and implemented, as final decree yet such an order would no debar the Court from continuing with the inquiry. The application by the petitioners by all means is prayer for said inquiry, of course, with reference to evidence already on record.

6. So far as the complaint of Mr. Zafar Iqbal Kalanori, Advocate is concerned, suffice it to say that the said inquiry can be conducted without interfering with the process of sale already ordered. This writ petition is accordingly disposed of with the direction that the learned trial Court shall consider the application in the light of said provisions of said Order XX Rule 13, C.P.C. as an application for inquiry for determining the assets of the late M.A. Karim. Evidence is already on record. The learned trial Court shall examine the record and determine the matter after hearing the parties with reference to pieces of evidence already noted by the petitioners in ,their application as also in the said orders, dated 9-10-2006 and 21-11-2006 of this Court and such other evidence already present on record which parties may bring to the notice of the Court and in case it comes to the conclusion that properties are asset of M.A. Karim then the same be dealt with in accordance with law in these very proceedings. However, this process shall not at all interfere with the process of sale. It is suggested that dates for purpose of sale proceedings and those for the purpose of said enquiry be fixed separately. No order as to costs. A copy of this judgment be immediately remitted to the learned trial Court. S.A.K./J-3/L Order accordingly.