2001 PLP 89 (MLD)

Date of hearing: 4th February, 2000. Brief facts necessary for the disposal of the instant revision petition are that plaintiff (hereinafter called the Respondent No.1) had tiled a suit against the defendants (hereinafter called the petitioners) and Respondent No. l seeking a declaration to the effect that her date of birth was 6‑4‑1944 and the petitioners and Respondent No.2 were bound to incorporate the same in their record. The suit was contested and decreed by the learned Civil Judge, Bahawalpur vide his judgment and decree dated 9‑12‑1993 and the appeal against the same also failed. The Respondent No. l filed a petition before the learned Executing Court in order to get executed the said decree. A reply was filed by the petitioners with the plea that execution petition was not maintainable as the said decree was not executable. The executing Court did not agree with the objection raised by the petitioners and a show‑cause notice was issued to them vide order dated 10‑10‑1997 as to why the decree should not be implemented. The petitioners submitted the reply and again repeated the same pleas but the learned Executing Court vide his order dated 4‑12‑1997 again disagreed with objections and directed the Secretary Board of Intermediate and Secondary Education, Lahore/Petitioner No.2 to implement the decree by 22‑12‑1997. This order was challenged ‑by the petitioners before the learned appellate Court but could not succeed as the learned Additional District Judge, Bahawalpur maintained the order of the learned executing Court, vide his detailed order dated 16‑5‑1998, now impugned through the instant revision petition.

2. Learned counsel for the petitioners vehemently argues that the learned Courts below have not seen the case in its true perspective, thus, committed material irregularity and illegality which has resulted in grave miscarriage of justice. He has referred to the findings of the learned Civil Judge on Issue No.5 incorporated in his judgment dated 9‑12‑1993, to show that only a decree of declaration was given and not a decree of mandatory injunction and this being so, a declaratory decree cannot be executed. '

3. On the other hand, learned counsel for the Respondent No.1 vehemently supported the impugned orders by submitting that the same had been passed strictly in accordance with law and facts.

4. I have considered the arguments of the learned counsel for the parties and perused the record.

5. It is borne out from the record that the Respondent No. l had sought declaration to the effect that her date of birth was 6‑4‑1944 and the petitioners were bound to correct the date. The mandatory injunction directing the petitioners to rectify the date of birth and issue the matriculation certificate accordingly had also been prayed. Decree sheet dated 9‑12‑1993 also shows the same.

6. To further appreciate the arguments of the learned counsel for the petitioners, it is appropriate to reproduce Issue No. 5. "Whether the plaintiff is entitled to decree of declaration as prayed for?" This issue was decided in favour of the Respondent No.

1. It cannot be said that decree has been granted in respect of declaration only but it can be safely held that decree was granted with regard to declaration as well as mandatory injunction. But not using the words mandatory injunction in Issue No. 5, will not render the decree in executable. Omission if any with regard to using the appropriate words in Issue No.5 is not fatal to the claim/prayer of the Respondent No.

1. To my humble mind suit has been decreed while granting both the prayers i.e. declaration and mandatory injunction. It is pertinent to point out that the objection raised by the learned counsel for the petitioners have already been met with by the learned Civil Judge vide his order dated 10‑10‑1997 and a show‑cause notice has been issued to the petitioners as to why the decree had not been obeyed. This show‑cause notice was issued in the spirit of Order 21, Rule 32,'C.P.C. I am convinced that both the learned Courts below have passed the impugned orders on a due appreciation of law and facts and no case is made out which may warrant indulgence of this Court in its revisional jurisdiction.

7. For what has been stated above, the instant revision petition fails and the same is dismissed leaving the parties to bear their own costs; Q.M.H./M.A.K./B‑20/L Revision dismissed,