2003 PLP 1151 (CLC)

S. 48, O.XXVI, R.1, O.XX, R.5 & O.XLI, R.31

Oaths Act (X of 1873), S.8

Suit for possession

Appointment of Local Commissioner and dismissal of execution petition on the ground that the same was time barred and had become non-executable because of the subsequent agreement between the parties

Local Commissioner appointed for the purpose 'had dealt with the entire process off handedly and entirely in illegal manner

Statements of witnesses were recorded without cross-examination by the other side

Proceedings of oath had not be!-n. conducted in the laid down manner and the requirements had not be properly satisfied

Mode of taking oath by the judgment-debtor had n been reproduced to highlight as to how and in what manner he took the oath

Validity

Executing Court was supposed to have recorded evidence for and against itself and should not have delegated such judicial function/obligation to a Commission

Provision of O.XXVI R.1, C.P.C. regarding Commission was a qualified provision and laid down certain conditions which were not existing, in the present case at the time of passing such order

Judgments/orders, in the present. Case were based on such proceedings which were entirely illegal and unwarranted in law besides the Courts had passed the impugned orders in a manner not recognized by O.XX, R.5 & O.XLI, R.31, C.P.C. and had failed to comply with the statutory requirements and on that score the impugned orders were nullity in the eyes of law

Impugned judgment and orders were set aside and the, case was remanded to the executing Court with direction to, administer oath, if the parties so agreed to the major legal heirs of the deceased judgment-debtor in the prescribed manner, and if the mode and manner in which the oath was to be taken was disputed then the evidence was to be recorded both oral an:; documentary, where after a proper, speaking and elaborate judgment tie given strictly in accord with O.XX, R.5, C.P.C. accepting the order to be passed on the basis of compromise. Muhammad Alain for Petitioner Muhammad Aman Khan for Respondent. Date of hearing: 17th April, 2003. Impugned herein are the judgments dated 5-6-1997 of the Executing Court and dated 24-5-1999 of the appeal Court wherein the execution petition of the petitioner was dismissed for the reason that it was time-barred and that it had become not executable because of the subsequent agreement between the parties. The appeal Court, however modified the trial Court's order by holding that the petition was with time against which no revision petition has been filed by the respondent.

2. The manner in which the. Executing Court has dealt with the petition of the decree-holder is entirely unwarranted in law. It was supposed to have recorded evidence for and against itself and should not have delegated such judicial function/obligation to a Commission. The provision of Order 26, rule 1, C.P.C. is a qualified one and lays down, certain conditions. None of those conditions was existing at the time of passing such order

3. Not only that but the local Commissioner appointed for the purpose dealt with the entire process off‑handedly and entirely in illegal manner. The statement of witnesses were recorded without cross -examination by the other side. The law of evidence in this regard is very firm and admits of no doubt that statement‑in‑chief without cross is no evidence under the law and vice versa. Similarly, the proceedings of oath have not been conducted in the laid down manner and the requirements have not been properly satisfied. The mode of taking oath by the judgment‑debtor Muazzam Jan has not been reproduced to highlight that how and in what manner he took the oath.

4. As the impugned judgments/orders are based on such proceedings which are entirely illegal and unwarranted in law besides the Courts below have passed the impugned orders in a fashion not recognized by Order 20, rule 5 and Order 41, rule 31 of the ibid Code and both have failed to comply with the statutory requirements and on this score to3 the impugned orders are a nullity in the eyes of law.

5. For the above reasons, therefore, the impugned judgments/orders are set aside and the case is remanded to the Executing Court with directions to administer oath, if the parties so agree, to the major legal heirs of Muazzam Jan deceased in the prescribed manner, however, if the mode and manner in which the oath is to be taken is disputed then it shall record evidence of the parties both oral and documentary to determine the nature of oath to be administered where-after proper, speaking and elaborate judgment .to be given strictly in accord with Order 20, rule 5, C.P.C. accepting the order to be passed on the basis of compromise. Being an old case, it shall be decided positively within a period of six months and parties are directed to appear before the concerned Court on 30‑4‑2003. The original record be transmitted to the said Court forthwith. M.B.A./795/P Case remanded.