1994 PLP 2301 (SCMR)

(On appeal from the order of the Lahore High Court, Bahawalpur Bench, Bahawalpur dated 3‑10‑1992 passed in Writ Petitions Nos.4/1992/BWP and 5/1992/BWP respectively). ‑‑‑‑O.XXI, R. 58‑‑‑Constitution of Pakistan (1973), Arts. 199 & 185 (3)‑‑ Recovery of arrears of rent‑‑‑Executing Court issuing warrants of attachment of immovable and movable property of judgment‑debtor (petitioner), which could not be served‑‑‑Executing Court, therefore, issuing warrants of arrest of petitioner against which petitioner's revision as also his Constitutional petition was dismissed‑‑‑Validity‑‑‑High Court had rightly taken the view that Constitutional petition was not maintainable for the orders in question passed by Executing court were subject to objection under O.XXI, R. 58, C.P.C: ‑ Executing Court alone was competent to hear such objections and no other forums had such power‑‑‑Petitioners having not filed objections against orders in question, in the Executing Court their Constitutional petition, was not maintainable‑‑‑No flaw or legal infirmity was pointed out in the judgment of High Court in dismissing Constitutional petition‑‑‑Leave to appeal was refused in circumstances. M. Hanif Khatana, Advocate Supreme Court and Tanvir Ahmed, Advocate‑on‑Record for Petitioners. Ch. Muhammad Ashraf, Advocate Supreme Court and Ch. Mehdi Khan Mehtab, Advocate‑on‑Record for Respondent No.

3. Date of hearing: 8th January, 1994. SAJJAD ALI SHAH, J.‑‑‑Mst. Rashid Akhtar, respondent No. 3 before us, filed two suits for recovery of arrears of rent from petitioners as tenants, which were decreed and appeals filed against them were dismissed as time‑barred. Revision petitions were filed in the High Court which were dismissed as not pressed. Applications were filed under section 114 and Order 47, Rule 1, C.P.C. for recall of order of dismissal of revision petitions on the ground that the counsel of petitioners was not authorised to withdraw or not press revision petitions but they were also dismissed.

2. In the executing Court Mst. Rashid Akhtar obtained warrants of attachment of immovable and movable property of judgment‑debtors, which could not be served and finally warrants of arrest of petitioners/judgment -debtors were issued against which two revision petitions were filed which were dismissed. Revision petitions were dismissed on the grounds firstly that petitioners/judgment‑debtors had remedy before executing Court of raising objections after attachment. Secondly they could have raised objections against issuance of warrants of arrest. Thirdly impugned orders were interlocutory in nature and were not covered by the definition of "case decided".

3. Not satisfied, petitioners filed two writ petitions in the High Court on the grounds that executing Court and revisional Court did not consider the fact that counsel for petitioners, who made the statement before the High Court on 15‑4‑1991 not pressing revision petitions had no authorisation to make such statement. Secondly, that executing Court passed impugned orders without affording opportunity of hearing to the petitioners and, therefore, such orders were violative of principles of natural justice. High Court has taken the view and rightly so that writ petitions are not maintainable for the reason that impugned orders passed by the executing Court were subject to objections under Order 21, Rule 58, C.P.C. and for hearing of such objections only executing Court is competent and not any other forum. Since petitioners have not filed objections in the executing Court, their writ petitions are not maintainable. We see no flaw or legal infirmity in the view taken by the High ‑Court while dismissing the writ petitions and additionally we may observe in respect of other contentions raised before the High Court as mentioned above, that executing Court cannot go behind the decree. For such reasons aforementioned, leave is refused and these petitions are dismissed as lacking merits. A.A./M‑2007/S Leave refused.