2010 PLP 1436 (YLR)

MUHAMMAD ASHRAF BHATTI, J.

Brief facts of the case are that Khushi Muhammad etc-respondents filed a suit for specific performance against Shaukat Ali, predecessor-in-interest of the petitioners in respect of the disputed land. It was decreed ex parte on 11-11-1992 by the then learned Senior Civil Judge, Kasur. In his lifetime, Shaukat Ali moved an application for setting aside the ex parte decree but the same was dismissed due to non-prosecution. Another application moved by him also met with the same fate on 25-7-1996. Resultantly in pursuance of the said ex parte decree an execution petition was moved on 21-7-1999 and accordingly the sale-deed was executed through Court in favour of the decree-holders/respondents but it was not incorporated in the Revenue Record.

2. In the meantime Mst. Budhan Bibi and others, petitioners filed an objection petition which was accepted by the learned Senior Civil Judge on 24-3-2001 whereby the execution petition filed by the respondents was dismissed being time barred. This order was assailed of in appeal by the respondents, which was accepted on 21-12-2001 whereby the order, dated 24-3-2001 of the learned Senior Civil Judge was set aside and the ex parte decree kept intact.

3. Being aggrieved by that order the petitioners preferred the civil revision in hand. It was opposed by the respondents-judgment debtors.

4. Both the parties have been heard at length and available record perused.

5. It is important to note that the order dated 24-3-2001 whereby the execution petition was found time barred, was passed at the back of the decree -holders/respondents. The petitioners, reasons best known to them have not appended copies of the relevant part of the judicial file to see as to whether or not the decree-holders were properly served with notices, etc. to be proceeded against ex parte. Leaving this aspect aside the said Court did not enquire into the matter and straightaway declared that the execution petition was time barred by relying on Mahboob Bibi v. Hassan Khan Durrani PLD 1990 SC 778 whereas the facts of this case are entirely distinguishable from the case in hand for the simple reason that the ex parte decree had already been satisfied when the learned trial Court got executed/registered sale-deed in favour of the decree-holders after the attempts made on the part of ' Shaukat Ali, predecessor-in-interest of the petitioners, had failed to get the said ex parte decree set aside and so the same had become final and binding upon the parties. Therefore, the application of the case law as cited above is hardly attracted to the facts and circumstances of the case under reference.

6. Contrary to the contentions of the learned counsel for the petitioners learned counsel for the respondents while relying upon Muhammad Nazir and another v. Qaiser Ali Khan and 4 others 2003 SCMR 436 has rightly argued that since one Lal Din also filed a suit for specific performance in respect of the same land on 23-1-1995 wherein the temporary injunction granted, was vacated on 1-9-1996, there was no intentional delay was in filing the executing petition. Therefore, no edge can be given to the petitioners to the question of limitation particularly because of an important feature of this case, duly taken care by the learned appellate Court. It relates to withdrawal of Rs.60,000 by Shaukat Ali predecessor-in-interest of the petitioners, from the Court of learned Senior Civil Judge, Kasur. This balance amount had been deposited by the respondents in pursuance of the aforesaid ex parte decree, which became final against Shaukat Ali, in his lifetime. The reference of this withdrawal also finds mention in the memo. of appeal through Refunded Voucher No.56/905 at Serial No.313, leaving no ground for the petitioners to challenge the validity of the decree or the execution petition.

7. Perusal of the record thus makes it clear that since the sale-deed executed/ registered in the light of ex parte decree referred to above had not been incorporated in the Revenue Record, the ownership of Shaukat Ali continued existing therein till his death whereafter mutation of inheritance was also attested in favour of the present petitioners. But on the basis of the title deed duly executed on the orders of a competent Court and withdrawal of Rs.60,000, the balance amount, by their predecessor-in-interest, the decree-holders/ respondents had already become exclusive owners of the land in dispute, no matter the entries of Revenue Record remained the same which by themselves did not create any right or title in their favour as against the aforesaid registered sale-deed executed in favour of the decree-holders/ respondents.

8. The upshot of the above discussion is that the petitioners have failed to make out a case warranting interference by this Court in its revisional jurisdiction. Accordingly, the revision petition in hand .is dismissed with no order as to costs. A.R.K./B-28/L Revision dismissed.