2003 PLP 1388 (MLD)

TALAAT QAYYUM QURESHI, J.

Through the writ petition in hand, the petitioners have called in question the judgment/order passed by respondent No. 1 on 23-10-1999.

2. Mr. Muhammad Alain Khan, the learned counsel representing petitioners argued that a decree for possession through pre-emption to the tune of half of the property m dispute was granted in favour of Bahader Said, the predecessor of petitioners. The said decree was maintained up to the august Supreme Court of Pakistan. Bahader Said filed execution petition for possession of the land decreed in his favour. The said execution proceedings were resisted by respondent No.3 by filing objection petition on 23-5-1995. The said objection petition was dismissed by the executing Court vide order dated 25-7-1995 against which the respondent No.3 filed Appeal No.32/14 of 1995 which was also dismissed by the learned District Judge/Zila Qazi Dir vide his order dated 18-9-1995. It was on 8-11-1995 that the petitioners took over the possession of land in dispute and the execution petition was consigned to record vide order dated 8-1-1995.

3. It was further argued that respondent No.3 filed yet another objection petition on 2-1-1996. He was provided with repeated chance to produce his evidence which he failed to produce. It was on 27-2-1998 that he submitted an application for appointment of Local Commission to inspect the spot. The said application was dismissed by the executing Court vide order dated 22-4-1998. Thereafter, he filed revision petition in the Court of learned District Judge/Zila Qazi, Dir at Timargara, which was allowed vide order dated 23-10-1999 and Local Commission was ordered to be appointed to inspect the spot and furnish his report. Since the earlier objection petition which as same in substance had already been dismissed, therefore, the second execution petition was not competent but the Courts below failed to appreciate, this legal position.

4. It was also argued that at the time of filing of second objection petition there was no execution proceedings pending, therefore, under section 47, C.P.C., the objection petition was not competent.

5. It was also argued that the order of dismissal of application for appointment of Local Commissions dated 22-4-1998 was appealable order but the respondent filed revision petition which was not maintainable/competent under section 115, C.P.C.

6. On the other hand Mr. Syed Safdar Hussain, Advocate the learned counsel representing respondent No.3 argued that the judgment/order passed by the learned District Judge/Zilla Qazi dated 23-10-1999 was proper and legal. The petitioners under the garb of taking over half share of the property in dispute had encroached upon the land belonging to respondent No.3. He had no other alternative but to approach the learned executing Court, if the learned District Judge has directed for appointment of Local Commissioner to inspect the spot, no illegality has been committed by him. The impugned order has rather advanced the cause of justice. The encroached property of respondent No.3 shall be reported by the Local Commissioner and the executing Court can pass proper order for its return to respondent No.3. The impugned order shall save the parties from further agonies of litigation.

7. We have heard the learned counsel for the parties and perused the record.

8. The argument of the learned counsel for the petitioners that since the first objection petition filed by the respondent No.3 had been dismissed, therefore, second objection petition was not competent has no force at all. No doubt the earlier objection petition, which was almost the same in its substance as was the second objection petition, it is also B admitted position that the earlier objection petition was dismissed vide order dated 23-5-1995, but the respondent No.3 had filed Appeal No.32/

14. The said appeal was decided with the consent of the learned counsel for the parties with the following order:--

9. It was m accordance with the order dated 17-12-1995 that respondent No-3 filed another objection petition on 3-1-1996. Since the appeal as mentioned above had been decided as per consent of the learned counsel for the parties, therefore, the subsequent objection petition, which was the outcome of the order passed b the learned District Judge, Dir dated 17-12-1995 was maintainable.

10. The argument of the learned counsel for the petitioner that at the time of filing subsequent petition no execution proceedings were pending, therefore, the objection petition was incompetent under section 47, C.P.C. also has no force. It is by now settled principle of E law that objection petition filed by a judgment-debtor under section 47, C.P.C., when no application for execution was pending is maintainable. A similar question came up for hearing before the august Supreme Court of Pakistan very recently in Riaz Hussain and others v. Muhammad Akbar and others (2003 SCMR 181) in which it was held:-- "The only question for decision in this appeal is whether an objection petition filed by a judgment-debtor under section 47, C.P.C. is maintainable. when there exists no application for executing of the decree. The question was answered in the affirmative in the impugned judgment mainly on the strength of the judgment of the Supreme Court of India reported as M.P. Shreevastava v. Veena (AIR 1967 SC 1193) wherein an identical controversy was resolved in favour of the judgment-debtor with the following observations:-- "The principle of section 47, C.P.C. is that all questions relating to execution, discharge or satisfaction of a decree and arising between the parties to the suit in which the decree is passed, shall be determined in the execution proceedings, and not by a separate suit; it follows as a corollary that a question relating to execution, discharge or satisfaction of a decree-holder or by the judgment-debtor in the execution department and that pendency of an application for execution by the decree-holder is not a condition of its exercise." The above view is unexceptionable and while agreeing with the rationale and reasons thereof we would like to add that the scope of section 47, C.P.C. is very wide inasmuch as the objection petition filed thereunder by a judgment-debtor is akin to a suit and for that very reason it contains as in-built provision empowering the Court to treat the objection petition as a suit subject to certain conditions. The view tends to advance the object of the Legislature and provide an opportunity to the judgment-debtor to make an objection petition even if the decree-holder withholds the execution petition and gets the decree satisfied through some other mode. A contrary view would certainly limit the scope of section 47, C.P.C. and thus militate against the object and intention of the Legislature. It will also take the judgment-debtor to a point where he is left with no remedy and forum of redressal of his grievance as has happened in the present case. The respondent has been left- high and dry due to non-filing of an execution petition by the decree holder. The right to file an objection petition conferred on the judgment-debtor by the Code of Civil Procedure is a vested right which cannot be denied by blowing the expression 'desires', used in Order XXI, Rule 10, C.P.C. out of proportion or raising a hypertechnical ground that non-filing of an execution petition is a bar to the maintainability of an objection petition. Lastly, the view is in line with the well-known principle of interpretation of statutes that a statute should be interpreted in a manner which suppresses the mischief and advance the remedy. It is also supported by the observations made in Manager, Jammu and Kashmir State Property v. Khuda Yar (PLD 1975 SC 678) that mere technicalities unless offering any insurmountable hurdle should not be allowed to defeat the ends of justice and the logic of words should yield to the logic of realities. "

11. The argument of the learned counsel for the petitioners that the order dated 22-4-1998 whereby application for appointment of Local Commissioner was rejected by the executing Court was appealable, hence revision petition against that order was not competent also has no force. The perusal of the Revision Petition No.3/12 of 1998 shows that the same was filed on 9-5-1998 i.e. within the time prescribed for filing appeal. If the learned counsel representing respondent No.3 did not make any prayer for conversion of the same into that of appeal, the respondent No.3 cannot be penalized. The petitioners also did not raise 'any' objection, with regard to the maintainability of the revision petition and even the learned District Judge/Zilla Qazi also did not appreciate that appeal against the order- was competent and the revision petition which had been filed in time should have been converted into that of appeal. It is by now settled principle of law that act of the Court shall prejudice I none, therefore, keeping in view the above principle, we are of the view that non-conversion of revision petition into appeal was merely a technical error for which the respondent No.3 cannot be penalised. Keeping in view the above discussion we are of the firm view that the impugned order dated 23-10-1999 passed by respondent No. 1 was correct and lawful order warranting no interference. We, therefore, maintain the same. Since the parties have been locked up into protracted litigation, therefore, we feel it appropriate to direct the executing Court to immediately appoint Local Commissioner and direct him to submit his report within one month. The objection petition by respondent No.3 shall be decided by the executing Court within a period of two months positively. No unnecessary adjournment be given to any of the parties on any ground and if possible the case be decided on day to day hearing basis. There shall be no orders as to costs. H.B.T./B-833/P Order accordingly.