2020 PLP 2498 (YLR)

NAZEER AHMED LANGOVE, J.

This petition is directed against the order dated 27th September 2018, passed by learned Judicial Magistrate, Karezat at Khanozai (hereinafter the "executing court") in Execution Application No.05 of 2017, whereby the objection application filed by the petitioner (objector/judgment debtor) was dismissed; assailed in Civil Appeal No.32 of 2018, but met with the same fate, vide order dated 31st October 2018, passed by learned Additional District Judge, Pishin (hereinafter the "appellate court"). Hence, this petition with the prayer to set aside the impugned orders passed by the executing, as well as, appellate court and to dismiss the execution application filed by the respondents (decree holders).

2. Facts of the case are that predecessor-in-interest of the respondent Nos. 1-a to 5-h, 7-a to 7-g, as well as, respondents Nos.6 and 8 (landlords) filed Eviction Application No.01/2003 against the petitioners (tenants) in respect of property having Khasra Nos.514/85, measuring 2 rods, 20 poles, situated at Mahal Khushkaba Yaro, Mouza Yaro, District Pishin, (hereinafter the "disputed property"), but dismissed, vide judgment dated 24th March 2003, passed by learned Senior Civil Judge, Pishin. Assailed in Civil Appeal No.27/2008 by the respondents (landlords), which was allowed, vide judgment dated 28th May 2009, passed by learned District Judge, Pishin; challenged in Civil Revision Petition No.366/2009, vide judgment dated 16th June 2017, passed by this Court, whereby the petition filed by the petitioners (judgment debtors) was dismissed. Assailed in Civil Petition No.132-Q/2017, but dismissed, vide order dated 24th January 2018, by the Hon'ble Supreme Court of Pakistan; thus, attained finality.

3. The respondents (decree holders) filed application for execution of the judgment and decree dated 28th May 2009, passed by learned District Judge, Pishin. The petitioners (judgment debtors) filed objection application, mainly on the ground that the execution application is barred by limitation.

4. The learned executing court, after hearing the arguments and evaluating the evidence on record, rejected the objection application filed by the petitioners (judgment debtors); assailed in appeal, but dismissed. Hence, this petition.

5. Heard the learned counsel for the parties and gone through the record with their assistance.

6. It is a settled law that mere filing of an appeal, revision before a higher forum does not automatically operate as a stay of the order/judgment impugned. In the instant case, the decree was passed in favour of the respondent (decree-holder) on 28th May 2009 in appeal by the District Judge, Pishin; assailed in Civil Revision Petition No.366/2009 by the petitioners (judgment debtors) but dismissed, vide order dated 16th June 2017 passed by this Court and upheld by the Hon'ble Supreme Court of Pakistan, vide its order dated 24th January 2018, thus attained finality.

7. It is relevant to note here that during pendency of the revision petition either before this Court or the Hon'ble Supreme Court of Pakistan, no stay or any sort of restraining order had been issued; in such view of facts, the execution application ought to have been filed within three years of decree passed by the appellate court i.e. District Judge (28th May 2009), but filed in October 2018, after more than nine years with the excuse that the decree holders remained in impression that since the revision petition is pending before this Court and the Hon'ble Supreme Court, therefore no execution application can be filed, which itself was a wrong perception and ignorance of law, which definitely is not an excuse. Reliance is placed on a case titled Bakhtiar Ahmed and others v. Mst. Shamim Akhtar and others (2013 SCMR 5), wherein the same proposition was resolved by the Hon'ble Supreme Court of Pakistan, with the following observations: "

9. So far the question that the decree of the court of first instance is merged into the decree of Appellate Court which alone can be executed, it may be stated that in the case in hand the decree was passed by the High Court being appellate/revisional Court, therefore, the time would run from the date of passing of decree by the said Court. In the instant case the right was accrued in favour of the petitioner when the decree was passed by the High Court on 17.3.2003. There being no statutory remedy of appeal or revision available against said decree and the only remedy available was filing a petition for leave to appeal before this Court, which is a constitutional court, therefore, unless the operation of the impugned decree is suspended or the petition is converted into an appeal the petitioner cannot presume that the period of limitation has been clogged. Mere filing of petition before this court would not automatically enlarge the time of filing the execution application. Needless to mention here that in case relief is granted by this Court after allowing the appeal with leave of the Court then in the said eventuality the order of this Court would merge into order of the lower forums as such the period of limitation would start from the order of this Court."

8. In such view of facts, the courts below shown to have erred in law by holding that the objection application filed by the petitioners (judgment debtors) is meritless and deserves dismissal. Findings arrived by the executing, as well as, appellate court being devoid of any merit and without application of Judicial mind, are not sustainable under the law and liable to be reversed.

9. In view of what has been discussed above, the petition filed by the petitioners is allowed; the impugned orders dated 27th September, 2018 and 31st October, 2018 passed by the executing and appellate court are set aside. Consequent thereof the execution application filed by the respondent (decree holder), (before the executing court), is also dismissed. Order accordingly. ZC/37/Bal. Revision allowed.