2003 PLP 684 (SCMR)

Ch Afrasiyab Khan, Advocate Supreme Court for Petitioner. Nemo for Respondents. Date of hearing: 8th January, 2003. ABDUL HAMEED DOGAR, J.‑The petitioner seeks leave to appeal against the judgment dated 3‑6‑2002 passed by a learned Judge in Chambers of the Lahore High Court, Rawalpindi Bench, Rawalpindi, whereby the Civil Revision No.341 of 1995 was allowed and the judgment and the decree dated 18‑7‑1995 passed by the learned Additional District Judge Chakwal, was set aside and that of trial Court was restored.

2. Briefly stated the facts leading to the filing of the instant petition are that respondent Muhammad Rafiq and others had instituted a suit for possession with regard to agricultural land measuring 8 Kanals situated in Khasra No.266‑min, Khatuni No.351/1098‑1999 in Mauza Lakkwal averting therein that they had become owners of the suit property on the basis of judgment and decree dated 25‑2‑1974 passed in suit for pre- emption in their favour. In compliance of the said pre‑emption decree, they had deposited the sale price in the Court on 20‑5‑1974 which was received by the defendant. However, the execution application was not filed, therefore, the possession was not handed over to them, which was the reason to file the suit in question. The trial Court vide its judgment dated 27‑6‑1988 decreed the suit. The appeal was accepted by the Appellate Court and the judgment and the decree of the trial Court was set aside and the suit of the respondent was dismissed. These above findings were upset by the learned Lahore High Court in above mentioned civil revision vide impugned judgment.

3. We have heard Ch. Afrasiyab Khan, learned Advocate Supreme Court for the petitioner and have gone through the record and the proceedings of the case in minute particulars.

4. Ch. Afrasiyab Khan, learned Advocate Supreme Court mainly contended that the impugned judgment is based on erroneous view and misconception of law and fact. According to him, the impugned judgment is not sustainable m law and the plaintiff/respondent cannot maintain the suit in question in view of the provisions of law laid down in subsection (1) section 47 of the C.P.C. whereby all questions arising between the parties to the suit in which the decree was passed, or their representatives, and relating to the execution, discharge or satisfaction of the decree, shall be determined by the Court executing the decree and not by a separate suit.

5. We are inclined to grant leave to appeal to consider, inter alia, as to whether in view of the above‑referred provisions of law, any separate suit for implementation of decree for possession passed in earlier suit for pre‑emption, could not be maintained particularly when no execution proceedings for its implementation were filed within the prescribed period of limitation in accordance with law. S.A.K./N‑119/S Leave granted.