2009 PLP 769 (CLC)

DOST MUHAMMAD KHAN, J.

The respondents-plaintiffs had purchased land from the petitioners, however, after receiving the sale consideration, the petitioners refused to transfer the area of 300 Kanals and 8, Marlas in favour of the respondents. The respondents brought two Suits bearing Nos.195/01 and 196/01 on 17-6-1984 and on 24-7-1984 wherein decrees for specific performance of agreement were granted on the basis of compromise, however, the petitioners fraudulently transferred substantial portion of the decreed land in favour of other party, therefore, the suit under discussion was instituted seeking decree of declaration for cancellation of the subsequent sale by the petitioners to 3rd party and for the recovery of possession of the suit-land which after two rounds of litigation was finally decreed by the learned trial Court vide judgment dated 26-7-2004. The judgment and decree of the trial Court were upheld in appeal by the learned Additional District Judge, Charsadda vide impugned judgment, dated 18-4-2005. Arguments heard and record perused.

2. The learned counsel for the petitioners did not controvert the facts on record i.e. the sale in favour of the respondents-plaintiffs and the earlier decree granted for specific performance of an agreement. His arguments remained confined to the legal proposition that a consent decree was executable under the provisions of the C.P.C., therefore, fresh suit was barred and this aspect of vital nature was ignored by the two learned Courts below. In this regard he relied on certain case-law of Indian jurisdiction.

3. The learned counsel for the respondents, however, defended the impugned judgments on the same reasons given therein.

4. The contention of the learned counsel for the petitioners is absolutely unsustainable in law on two-fold grounds. Firstly, the decree for specific performance was granted on the basis of admission and with the consent of the petitioners, therefore, for all legal and practical purposes it stood executed there and then and the subsequent formality of execution had become redundant. The execution of decree or preliminary decree in some category of cases is essential under the provisions of C.P.C. because the trial Court has to take further step to give the decree a practical shape taking it to its logical conclusion, however, consent decree is an exception to such rule because as soon as such decree is passed, it ipso facto stands executed there and then.

5. Secondly, after the passing of consent decree for specific performance the petitioners fraudulently and collusively made transactions with 3rd party of the same land decreed in favour of the respondents/plaintiffs, therefore, a fresh cause of action had accrued to them and because decree for declaration was sought for the reversal of the transactions impugned in the suit, therefore, the earlier decree for specific performance was no more executable because by that time the vendors/petitioners had divested themselves of the ownership of the land decreed earlier, therefore, the plea of the learned counsel for the petitioners is baseless and is entirely not tenable in law.

6. The petitioners have got no case on merits, therefore, they have taken shelter behind technicalities. It is cardinal principle of justice which has assumed the status of rule of law that no one shall be allowed to retain ill-gotten gain. The vendees/defendants too have indulged in facilitating the collusive transfer of the land or to explain in other words they did not take a little care to ascertain as to whether the vendors were by then the owners of land or not.

7. As both the learned Courts below have recorded concurrent findings on questions of facts and on questions of law both after proper appraisal of evidence and correct application of law to the facts of the case, therefore, in view of the principle of law laid down by the Honourable Supreme Court in Kanwal Nain's case PLD 1983 SC 53 this Court in limited revisional jurisdiction is neither required nor supposed to interfere with these findings which are well-founded. Accordingly, this petition is dismissed with costs. H.B.T./67/P Petition dismissed.