2017 PLP 854 (MLD)

MUHAMMAD GHAZANFER KHAN, J.

Through the instant revision petition, the petitioner Muhammad Nawaz has challenged the order dated 25.4.2015, passed by learned Additional District Judge, Paharpur, D.I.Khan, whereby his appeal against order dated 08.01.2015, passed by learned Civil Judge-I, Paharpur, D.I.Khan/Executing Court was dismissed.

2. Arguments of both the learned counsel for the parties heard and record gone through with their valuable assistance.

3. Present case was decided/decreed on 18.12.2012 and the execution was filed on 10.6.2014. The present petitioner/judgment debtor filed objection petition before the Executing Court which was dismissed and the appeal against the said judgment also met the same fate.

4. Learned counsel for the petitioner mainly argued that the decree holder is not the sole owner of the property and the property is still joint so, passage of decree and issuing warrant for actual possession is alien to law as without proper partition, actual possession cannot be handed over to the decree holder.

5. No doubt this proposition is according to law but is not applicable in this case, as admittedly the present judgment debtor/ objector is not the co-owner in the suit property and is owner in adjacent property. After proper appraisal of evidence on the record the competent Court has passed a decree which has attained finality. According to record the petitioner/objector was even encroacher so a decree was passed against him. The point raised by the learned counsel for the petitioner/objector that without proper partition, actual possession cannot be given to the decree holder, cannot hold field in present case as this plea can only be taken by a co-owner if a decree in such a shape has been passed against co-owner but in present case, as stated above, the petitioner/objector has been found encroacher by the Court of competent jurisdiction and the order has attained finality so at this stage the decree holder cannot be deprived from the fruits of a decree on mere lame excuses.

6. The second argument of counsel for the petitioner/objector was that his appeal was turned down just on technical ground and merits of the case were never discussed, perusal of application for condonation of delay reveals that the petitioner has himself admitted in his application that the petitioner/objector is 75/80 years old and on the date of passage of impugned order dated 08.01.2015 he could not appear before the Executing Court however, his son has been appearing regularly and was given further dates as mentioned in the above said application. Bare perusal of application for condonation of delay is sufficient to hold that the petitioner was in knowledge of the order. Even otherwise the petitioner cannot take benefit of his own misdeeds for condonation of delay. Even if the appellate Court has resorted to decide the appeal on merits even then the judgment of appellate Court would have been same as the objections taken by the present petitioner/objector are such which have already been adjudicated upon by the trial Court.

7. In such scenario, the present petitioner/objector has failed to point out any irregularly, illegality, misreading or non-reading of evidence, therefore, his instant revision petition is dismissed. MQ/27/P Revision dismissed.