2007 PLP 1444 (MLD)

MUHAMMAD YOUNAS TAHIR, J.

This revision petition is filed against the judgment and .order of the learned Additional District Judge, Dadyal, dated 18-3-2006 whereby the appeal filed by the petitioner was dismissed. The brief facts forming the background of the instant revision petition are that the petitioner filed a suit for possession in the Court of Civil Judge, Dadyal. It was claimed by the petitioner-plaintiff' that land measuring 1 kanal out of land measuring 122 kanals 6 marlas comprising survey, No. 1225-min was forcibly dispossessed by non-petitioner. The suit was decreed. The decree of the trial Court has attained finality. The petitioner filed an application for execution of decree in the Court of Civil Judge, Dadyal. The learned Civil Judge dismissed the application vide its order, dated 25-9-2004. The petitioner filed a subsequent application for the execution of the decree on 24-12-2004; which was also dismissed by the learned trial Judge vide order, dated 10-3-2005. Feeling aggrieved with the judgment and order of trial Court, petitioner preferred au appeal before the Additional District Judge, Dadyal which was also met-same rate, hence this revision petition. The learned counsel appearing on behalf of petitioner strenuously argued that both the Courts below fell in error while dismissing the .execution application. Khasra No. 1225-min of village Bathori Tehsil Dadyal is Shamlat-Deh land measuring 122 kanals 6 marlas out of which decree of one kanal has been awarded in favour of the petitioner. The learned counsel further maintained that in the Revenue Record, the decreed land is still shown in the name of the petitioner. The learned trial Court as well as first appellate Court wrongly held that description given in the decree sheet and reported by the Revenue Official, the location of the land was not ascertainable, therefore, the decree is not executable. According to the learned counsel, the impugned orders of Additional District judge as well as the trial Court are not maintainable. While controverting the argument of the learned counsel for the petitioner, the learned counsel for non-petitioner contended that the petitioner/decree-holder instituted the suit pertaining to survey No.1225-tnin situated in village Bathroi, Tehsil Dadyal which was decreed in his favour. The learned counsel .further contended that the description of land under decree was given by the Revenue Official is in accordance with the physical position, which was rightly relied upon by the Courts below. The learned counsel- submitted that when the former application was dismissed by the trial Court on 25-9-2004, then, the petitioner is debarred to institute a fresh application on the same grounds, therefore, the impugned order need not to be interfered with by this Honorable Court. I have given my anxious thought to the respective arguments advanced by the learned counsel for the parties and also perused the relevant record very minutely. The contemplate perusal of the record shows that the decree- holder-petitioner filed a suit for possession in the Court of. Civil Judge, Dadyal pertaining` to survey No. 1225-min Shamlat Deh land measuring 1 kanal out of land 122 kanals 6 marlas situated in village Bhathori, Tehsil Dadyal. The learned trial Court restored the possession of the land in dispute. Controversy arises prior to this application, the petitioner filed an execution application on 4-2-2003. Warrant of possession was .issued by the trial Court. In compliance with the order of the Court, the Revenue Officials reported in the following words:-- It is crystal clear from the bare reading of the reports of Revenue Official as well as the description given in the decree sheet, there is survey No.1121 which is not the subject-matter of the execution proceedings. Survey No. 1225 (decreed No. Khasra) is situated somewhere else- not at the described place. Keeping in view the above mentioned situation, it was rightly observed by the trial Court that decree cannot be executed, therefore, the former application was dismissed by the trial Court vide its order, dated 25-9-2005. After the dismissal of the former application, the petitioner-applicant moved fresh application on the same grounds and facts as stated in the earlier application. It was legal obligation of the applicant-decree-holder to call in question the -validity of the said order by filing an appeal or revision, as the case may be: The petitioner was not entitled to file a fresh application on the same facts and rounds. My this view is fortified and affirmed by judgment of' the Honorable Supreme Court Azad Jammu and Kashmir in the case reported as PLD 1989 SC AJK 78 captioned (d) which reads as under:-- (d) Res judicata

Principle of

Question whether property in dispute was evacuee or not was subject-matter of previous litigation between the parties wherein property was declared to be evacuee in nature

Evacuee nature of property being directly and substantially in issue, in previous litigation, between both the parties, finding thereon that such property was evacuee in nature was binding on both the parties and could not be re opend. In the case reported as Jogesh Chandra Roy v. Mymen Singh Co-Operative Town Bank, PLD 1955 Dacca 17, it was held as under:-- A. Limitation Act (IX of 1908) First Schedule: Article 182

Constructive Res Judicata will operate where the decree-holder has taken a step-in-aid e.g. an order of attachment and the judgment-debtor having been served has raised no objection on question of limitation, but not where the decree-holder has not taken any step in aid of execution

Where the Court has spassed an order of attachment, it can be taken to have decided the question of limitation by necessary implication

The decision, therefore, will operate as constructive res judicata. In case titled "Kidar Nath v. Taj Muhammad Khan" reported AIR 1993 Lahore, it was held as under:-- (b) C.P.C. section 11 Explanation-4 applies to execution proceedings. Objection as to power of attorney not raised in previous application cannot be raised in the subsequent application. From the perusal of the above mentioned case law, it was held that when the subject-matter between the parties directly and substantially was in issue in the former proceedings and the parties were also the same. Finding has resulted in a particular order. Such situation and finding has the force of res judicata. In the light of the view which has formed in the above mentioned judgments and after careful consideration and perusal of the record, I am of the firm opinion that, no doubt, a decree-holder can file more than one applications for the execution of the decree on fresh grounds not already agitated in the former application. It reveals from the subsequent application that it was filed on same facts and description as discussed in the earlier part of the judgment. On this count, the petitioner's second application was incompetent. As the contention raised by the learned counsel for the petitioner that it was enjoined upon the trial Court by exercising the inherent jurisdiction altered the decree is concerned, no doubt, High Court has vested with wide inherent powers to meet the ends of justice but section 151, C. P.C: cannot be utilized .for alteration of the decree This question falls within the ambit of pre-decree matter which cannot be pressed into service in the execution proceedings unless and until the same is incorporated in the decree. My this view lend full support from the judgment of apex Court reported as 19)4 MLD 1825. So far as the case law cited by the learned counsel for the petitioner is concerned, the same is not applicable on the facts of the present case. The upshot of the above discussion is that as the findings of facts recorded by the Court below do not suffer from any material irregularity, illegality or .jurisdictional defects. Therefore, the same could not be interfered with in the Revisional jurisdiction. Thus the revision petition is hereby dismissed. S.A.K./6/AJK, H.C. Revision dismissed.