2020 PLP 44 (YLRN)

ALI BAIG, J.

This Civil Revision Petition filed under Section 115, C.P.C., is directed against the impugned judgment/order dated 03-7-2018, passed by the learned Additional District Judge Gilgit in C.F.A. No.11/2017, whereby the learned 1st appellate court has maintained the order dated 22-3-2017, passed by the learned Civil Judge/ Executing Court Nagar and has dismissed the civil 1st appeal of the present petitioners/judgment-debtors.

2. Brief facts forming background of the instant revision petition are that the present respondents/decree-holders had filed a suit for declaration and possession of suit land situated at Sikandarabad Nagar against the present petitioners/ judgment-debtors in the trial court which was decreed by the learned trial court in favour of the present respondents/decree-holders vide the judgment/decree dated 23-11-1996. The aforesaid judgment/ decree of the learned trial court was maintained up to the Hon'ble Supreme Appellate Court Gilgit Baltistan. Accordingly, the present respondents/ decree-holders had filed execution petition in the learned Executing Court Nagar. During Pendency of the aforesaid execution petition and before filing of the objections on behalf of the present petitioners/judgment-debtors, the learned Executing Court vide order dated 22.3.2017, directed the Assistant Commissioner Nagar to implement the judgment/decree of Trial/Executing Court and submit compliance report.

3. Feeling aggrieved from the aforesaid order of the learned Executing Court, the present petitioners/judgment-debtors had filed civil 1st appeal in the court of the learned Additional District Judge Nagar, which was dismissed by the learned Additional District Judge Nagar vide the impugned judgment/order dated 03.7.2018, hence, this revision petition.

4. The learned counsel appearing on behalf of the petitioners/decree-holders argued that the impugned orders passed by the learned Executing Court as well as the learned 1st appellate courts are contrary to law and facts on the record of the case, as such the impugned judgments/orders passed by the learned 1st appellate court and executing court are not maintainable and liable to be set aside. The learned counsel for the petitioners further argued that the learned Executing Court has passed the impugned order dated 22.3.2017, in a hasty manner without affording an opportunity to file objections on behalf of the petitioners/ judgment-debtors and the learned 1st appellant court has also wrongly maintained the impugned order/judgment of Executing Court. The learned counsel for the petitioners further argued that without obtaining objections on behalf of the judgment-debtors, the Executing Court cannot order the Assistant Commissioner Nagar to implement the judgment/decree, hence by accepting this petition the Executing Court may be directed to obtain objections on behalf of the petitioners/judgment-debtors and thereafter decide the matter.

5. On the other hand the learned counsel for the respondents/decree-holders supported the impugned judgments/ orders passed by both the courts below by contending that execution petition was filed on 26-5-2014, but despite lapse of considerable period/time the petitioners/ judgment-debtors have failed to file objections, therefore, the Executing court has rightly directed the Assistant Commissioner Nagar to implement the judgment/decree passed by the trial court. The learned counsel for the respondents/ decree-holders further argued that filing of objections are not mandatory and the learned Executing Court may execute/ implement the decree without obtaining objections on behalf of the judgment-debtors.

6. I have given my anxious consideration to the arguments advanced by the learned counsel for the parties and perused the record.

7. From perusal of record it reveals that although the execution petition was filed in the Executing Court on 26.5.2014, but an appeal against the judgment/decree passed in favour of the present respondents/decree-holders was filed in Hon'ble Supreme Appellate Court Gilgit-Baltistan by the present petitioners/ judgment-debtors which was subjudice before the Hon'ble Supreme Appellate Court Gilgit-Baltistan, therefore, the judgment-debtors/respondents had not filed objections in the Executing Court and execution petition was pending in the Executing Court for further proceedings and it was not fixed for filing of objections. On 22-3-2017, the attorney of the decree-holders submitted a copy of judgment of the apex court Gilgit-Baltistan, whereby appeal of the present petitioners / judgment-debtors was dismissed and on the same day the learned Executing Court has directed the Assistant Commissioner Nagar to implement the judgment/decree without affording an opportunity to the judgment-debtors to file objections.

8. Under the provisions of Section 47, the judgment-debtor can file objections against the execution petition. The right to file objection petition conferred on the judgment-debtor by Code of Civil Procedure is a vested right which cannot be denied by the learned Executing Court. From perusal of record/order-sheets maintained by the learned Executing Court it reveals that the learned Executing Court has not afforded a chance/opportunity to the petitioners/ judgment-debtors to file objection petition, thus, the learned trial court as well as learned 1st appellate court have committed material irregularity and illegality while passing the impugned judgments/orders which are not sustainable in the eye of law.

9. The upshot of the above discussion is that, this revision petition is allowed. Consequently, the impugned judgments/orders passed by the learned Executing Court as well as the 1st appellate court are set-aside. Consequently the execution petition is remanded back to the learned Executing court with the direction to decide the execution petition after obtaining objections from the petitioners/judgment-debtors. The judgment-debtors shall file objection petition on 05-9-2019, in the Executing Court and the learned Executing Court shall dispose of the execution petition after hearing the parties within one month of the passing of this judgment. If either party files appeal or revision against the order/judgment to be passed by the Executing Court in the Court of Additional District Judge Nagar, the learned Additional District Judge Nagar shall also dispose of the appeal or revision petition of aggrieved party within one month of the filing of said appeal/revision as the matter is lingering on since 1990. Parties are directed to appear before the learned Executing Court Nagar on 07-9-2019. Parties are left to bear their own costs. Office is directed to forward a certified true copy of this judgment to the learned Executing Court Nagar for information and compliance. Civil Misc. Petition bearing No./186/2018 is also disposed of being infructuous. File. ZC/124/GB Case remanded.