1983 PLP 804 (CLC)

‑‑‑ Ss. 47 & 115‑Punjab Pre‑emption Act (I of 1913), S. 4‑Execution of decree ‑Pre‑emption suit‑Validity of decree impugned for reason that pre‑emption money not paid within time fixed by Court passing decree‑Question involved being relating to executability of decree, held, could be decided by executing Court and not by filing a separate suit. According to section 47 of the Code of Civil Procedure all questions relating to the execution, discharge or satisfaction of the decree are to be determined by the Court executing the decree and not by a separate suit The question involved in the instant case was in respect of the executability of the decree, It, therefore, related to its execution and could be determined by the Civil Judge who was seized of the execution proceedings. Ch. Abdur Rehman II for Petitioner. The facts giving rise to this civil revision are that respondent No. 3, Mehdi Shah, filed a suit against respondents Nos. 1 and 2, Syed Irshad Ali Shah and a other, for possession of certain land through pre‑emption. The suit was reed by the Civil Judge, Daska, District Sialkot, on payment of Rs. 13,586 and it was ordered that respondent No. 3 shall deposit that amount, less the amount already deposited by him as zar‑a panjam, on or before 30th June, 1975. The decree was executed and the possession of the disputed land was delivered to respondent No. 3 on 24th August, 1975. Thereafter, respondents Nos. 1 and 2 filed an objection petition stating that the decree‑holder (respondent No. 3) had not deposited pre‑emption money in time and, therefore, his suit stood dismissed. In reply, it was explained by respondent No. 3 that on 30th June, 1975 the employees of the National Bank of Pakistan, Daska, were on strike and, therefore, he could not deposit the pre‑emption money on the said date. On Ist July 197$ it was a Sunday. He, therefore, deposited the pre‑emption money on 2nd July, 1975. According to respondent No. 3, therefore, delay in the deposit of pre‑emption money was not intentional. The learned Civil Judge who was seized of the execution proceedings was of the view that the executing Court could not determine the question of validity of the decree in dispute under section 47 of the Code of Civil Procedure and the proper course for the judgment‑debtor was to file a separate suit to assail its validity. The objection petition was, therefore, dismissed by the learned Civil Judge. His order in this behalf was challenged by respondents Nos. 1 and 2 by taking an appeal to the District Judge, Sialkot. It was held by the learned District Judge that the question raised in the objection petition could be decided by the learned executing Court and a separate suit was barred. It was also held by him that since the pre‑emption money was not deposited on or before 30th June, 1975, the suit brought by respondent No. 3 stood dismissed and the conditional decree passed therein could not be executed. The learned District Judge, therefore, accepted tile appeal, set aside the order of the learned Civil Judge and dismissed the suit of respondent No. 3, The order of the learned District Judge has been challenged by means of this civil revision not by respondent No. 3 but by the petitioner, Muhammad Din, as he claims to have purchased the disputed land from respondent, No. 3 by means of registered sale‑deed, dated the 12th June, 1975.

2. It was contended by learned counsel for the petitioner that the executing Court could not decide the question whether the decree passed in the pre‑emption suit was holding the field at the time when it was executed or it had ceased to be of any legal effect due to the failure of the decree‑holder to deposit the pre‑emption money in time. According to section 47 of the Code of Civil Procedure all questions relating to the execution, discharging or satisfaction of the decree are to be determined by the Court execution the decree and not by a separate suit. The question involved in the instant case was in respect of the executability of the decree. It, therefore, related to its execution and could be determined by the Civil Judge who was seized of the execution proceedings. In this view of the matter, the order of the learned District Judge is not open to any legitimate exception.

3. Resultantly, this civil revision fails. It is dismissed u: limine. Appeal dismissed.