2012 PLP 1528 (CLC)

MAZHAR ALAM KHAN MIANKHEL, J.

The petitioners being judgment-debtors have filed instant revision petition, whereby they have questioned the concurrent findings of the two Courts below whereby their objections/application for dismissal of execution petition was dismissed vide order dated 5-12-2009 and vide a separate even dated order, the application for final decree of the respondent/decree-holders was allowed and their two separate appeals against the above two orders were also dismissed by the learned Additional District Judge-II/Izafi Zilla Qazi, Swat vide his single judgment dated 15-4-2010.

2. Brief but the material facts leading to the present controversy between the parties are that one. Mst. Nasim Bibi was married to defendant No.1 in lieu of dower of ten Tolas of gold and a house fully detailed in the heading of the plaint. The said house was originally owned by father of defendant No.1 i.e. Shamas Gul (defendant No.5). Just after few months of the marriage, the poor lady unfortunately died whereafter the dispute between the parties began. The parents of said Mst. Nasim Bibi filed a suit for declaration, permanent injunction and for possession through partition of 1/2 share in the house given to Nasim Bibi in lieu of her dower and in the same suit they also prayed for recovery of certain amount of rent/mesne profit of 1/2 share in the house and recovery of certain amount with regard to dowry articles and the expenditure of burial borne by the parents of Nasim Bibi. The gold ornaments in the case were not disputed. Their suit to the extent of 1/2 share in the house was decreed by the trial Court vide judgment and decree dated 10-7-2003, whereas rest of their claims were turned down. Both the parties then filed their respective appeals and resultantly, the 1/2 share in the house in favour of plaintiffs remained intact and they were also held entitle to the recovery of Rs.300/- per month as rent/mesne profit from 1997 and onward; and regarding dismissal of their remaining claim was upheld in appeal. Since the nature of decree passed by the trial Court with regard to house was in the shape of preliminary decree, whereas the decree for recovery of rent was in the shape of, final decree, so the plaintiff/decree-holders filed execution petition to recover the rent amount decreed in their favour whereas they filed separate application for possession of 1/2 share in the house for final decree. Replication to the application for final decree was filed by the judgment-debtor i.e. the present petitioner, whereas they filed their application for dismissal of execution petition, as the parties had effected a genuine compromise outside the Court through the intervention of the elders of the locality vide compromise deed dated 23-4-2004. The executing Court as well as the trial Court dealing with the application for final decree with their separate orders, allowed the application for final decree and dismissed the application of present petitioners for dismissal of application for final decree/execution petition vide their separate orders dated 5-12-2009. Both these orders were once again challenged by the judgment-debtors through separate appeals but both of their appeals were dismissed by the learned Additional District Judge vide his judgment dated 15-4-2010, hence the present revision.

3. The learned counsel for the petitioner contended that after dismissal of their appeal against the grant of decree in favour of plaintiff- respondents, the parties entered into a compromise through the intervention of the elders of the area and the plaintiff/decree-holders, on the strength of compromise received their due share in the house and as per compromise, the remaining decree in the shape of recovery of rent was relinquished by them. He next contended that the petitioners, in spite of their hectic efforts, were never provided a chance of leading pro and contra evidence with regard to their replication filed in the application for final decree as well as objections in execution of the decree and the Court below fell into an error of law by not accepting the compromise entered into between the parties outside the Court. As against that, the learned counsel for respondent/decree-holders submitted that there was no compromise between the parties and the judgment-debtors are intentionally prolonging the execution of the decree passed in their favour and they are Intentionally avoiding the possession of 1/2 share in the suit house. He next contended that in the circumstances of the case, there was no need for producing any evidence, as everything was established on the record and thereby requested for dismissal of instant revision petition.

4. The learned counsel for the parties were heard and record of the case was perused.

5. Perusal of the record would reveal that the parties to the suit are locked in litigation since long. The decree-holders are hectically trying to reap the fruits of the decrees in their favour, whereas the petitioner/judgment-debtors have alleged that the share of the decree-holders was accordingly paid to them on the basis of a compromise entered into between them through the intervention of elders of the area and before the members of the 'Jirga', they received their due share.

6. The learned appellate Court has refused to accept the compromise between the parties on the strength of Rules 1 and 2 of Order XXI of C.P.C., but the entire record of the case would reveal that the document of compromise signed and thumb-impressed by many of the persons of the locality was required to be proved just to achieve the ends of justice, no chance of proving the same or proving the factum of compromise between the parties was provided to the petitioners which, on the face of it, appears to be an irregularity on the part of executing Court. By keeping in view the nature of controversy between the parties, the Court can adopt a suitable way just to secure the ends of justice and to decide the controversy between the parties once for all. All necessary steps under the law can be taken and adopted which appear to be just and proper. The only contention of the petitioners remained throughout was that they were not provided a chance of proving the factum of compromise. Such-like submission would naturally require pro and contra evidence just to prove the facts alleged in objection petitions. The law has also provided the authority to the Court that in case of frivolous objection/defence, Court can even impose special compensatory costs or can get undertaking from the party regarding compliance of the decree in case of failure of their objection. The provision of Rule 23-A of Order XXI of C.P.C. can also be adopted in case of execution of decree for payment of money. Had they been provided such chance, then there would have been no further argument on their behalf. So, in the circumstances of the case, this Court is of the opinion that let a fair chance be provided to the petitioners to prove the factum of compromise. They, in the circumstances, would be allowed to produce their evidence within a month positively, after receipt of file, by submitting undertaking before the executing Court as well as in the application for final decree and in case of their failure to produce their evidence within the stipulated period, they will have to pay the decretal amount in lump sum and hand over possession of 1/2 share in the house without fail. This revision petition is disposed of in above terms. S.A.K./100/P Revision disposed of.