1984 PLP 1570 (SCMR)

Date of hearing : 8th April, 1984. NASIM HASAN SHAH, J.‑The question is whether the respondents are required to file a separate suit to establish their claim that they are also entitled to apply for the execution of the decree or whether their claim that they are the representatives of the party in whose favour the suit was ultimately decreed can be determined by the executing Court under section 47(3) of the C. P. C. ? The relevant facts are that one Qazi Mehr Din, who is admittedly the predecessor‑in‑interest of the petitioners herein, filed a suit on 14‑3‑1938 for possession of the land measuring 589 Kanals 17 Marlas in Mauza Gullan Gul Khan and for 289 Kanals in Mauza Talliwala, Tehsil Khanpur in the Court of the District Judge, Rahimyar Khan against Sh. Mehr Din and others. The suit of Qazi Mehr Din was decreed on 30‑12‑1943. The defendant in the said suit viz. Sh. Mehr Din filed a regular first appeal in the High Court of Bahawalpur on 14‑2‑1944. The said appeal was accepted by a Single Judge of the said High Court on 4‑4‑1948. Qazi Mehr Din, therefore, filed a further appeal in the same Court which was dismissed on 27‑2‑1950. He then filed an appeal before the Judicial Committee of Bahawalpur State on 25‑5‑1950. In the meanwhile, the State of Bahawalpur was merged in the Province of West Pakistan. Consequently, the appeal was transferred to the Supreme Court of Pakistan. During the pendency of the appeal before the Supreme Court of Pakistan, Qazi Mehr Din passed away and the present petitioners got themselves brought on the record as his legal representatives. Ultimately, the appeal was allowed by the Supreme Court on 28‑4‑1964 and the case remanded to the High Court for re‑deciding the appeal afresh, which was thereafter heard by a learned Single Judge of the Bahawalpur High Court, who dismissed the appeal of Sh. Mehr Din vide his order, dated 23‑12‑1966‑ The legal heirs of Sh. Mehr Din challenged the said decision by filing an appeal before the Supreme Court, which was converted into an appeal but was ultimately dismissed on 10‑9‑1974. The protracted litigation came to an end there by the decree in favour of the petitioners herein passed being upheld. The formal decree sheet prepared by the Supreme Court on 29‑10‑1975 shows Qazi Muhammad Rafiq, petitioner herein, to be the decree‑holder. Qazi Muhammad Rafiq, petitioner No. 1 herein, accordingly moved an application on 23‑4‑1975 for execution of the decree before the District Judge. During these proceedings, Qazi Muhammad Feroze etc. also claiming to be the heirs of Qazi Mehr Din from his other wife, moved an application before the District Judge for execution of the decree. Qazi Muhammad Rafique, petitioner No. 1 herein, objected to the said execution application, contending that the same was not maintainable since the said respondents were never impleaded as legal representatives of the original plaintiff' Qazi Mehr Din, nor had ever become parties during the entire period of litigation and that they, therefore, could not get any benefit from the decree‑holder. The plea of the petitioners was accepted by the learned District Judge who held that the respondents could not enter into the field during the execution proceedings and that if they felt themselves to be an aggrieved party, they should seek remedy by way of a separate suit. The respondents feeling dissatisfied with the above order filed an Execution First Appeal before the High Court. Herein, they contended that they could move an execution application as they were representatives of the original decree‑holder and they relied upon the provisions of section 47(3) of the C. P. C. in this behalf. Section 47(3) of the C. P. C. reads as under :‑ "47(3). Where a question arises as to whether any person is or is not the representative of a party, such question shall, for the purposes of this section, be determined by the Court." The learned Judge in the High Court, after discussing the relevant case law, came to the conclusion that the learned District Judge had erred in dismissing the execution application of the respondents and observing that they should establish their claim by a separate suit. He held that the respondents were claiming to be the representatives of Qazi Mehr Din, the original decree‑holder, and this question could be determined during the execution proceedings. He, accordingly, set aside the order of the learned District Judge and held that the execution application filed by the respondents shall be deemed to be pending action and that the same shall be decided by the learned District Judge. This petition for leave to appeal is filed against the last mentioned order of the High Court. We have heard the learned counsel for the parties at some length and have arrived at the conclusion that the view expressed by the learned Judge in the High Court to the effect that the question whether the respondents can be regarded as representatives of the original decree‑holder, namely,' Qazi Mehr Din, can be decided by the executing Court under the provisions of section 47(3) of the C. P. C. We, therefore find no substance in this petition. This petition shall, accordingly, stand dismissed. S.Q. Petition dismissed.