2023 PLP 339 (MLD)

SHAHID BILAL HASSAN, J.

During pendency of an execution petition filed by the respondents Nos.3 to 6 (decree holders) for satisfaction of decree dated 20.03.2008 passed in favour of their predecessor namely Zafar Abbas, the present petitioner filed an objection petition/application under section 47 read with Order XXI, Code of Civil Procedure, 1908 (the Code, 1908) for calling of record and dismissal of the execution petition (Annexure-K) and the respondents Nos.3 to 6 (decree holders) submitted its reply (Annexure-K/1). The learned Executing Court vide impugned order dated 01.12.2020 dismissed the said objection petition with the direction to implement the judgment and decree dated 20.03.2008 by way of transfer in the office of the present petitioner (DHA) in favour of the decree holders/respondents Nos.3 to

6. The present petitioner being aggrieved preferred an appeal against the said order. In the meantime, on 16.12.2020, the court representative visited the office of the petitioner and presented a Robkar and copy of the judgment and decree dated 20.03.2008 for its implementation. After perusal of the Robkar as well as judgment and decree, the relevant officials of the present petitioner submitted the report to the Court representative that no detail of file is given in the decree concerned, so the same cannot be implemented without such detail. Instead of providing details of 13 files to the transfer branch of the petitioner, on 06.01.2021, the learned Executing Court issued direction to the State Bank of Pakistan and the decree holders to provide the details of bank accounts of the present petitioner for attachment and also directed the decree holders to submit Fard Taliqa. The petitioner being aggrieved filed revision petition against the same but the learned Addl. District Judge vide impugned order dated 15.02.2021 dismissed the revision petition; hence, the instant constitutional petition.

2. Heard.

3. Considering the arguments and going through the record, it is observed that in agreement to sell, reached at between the predecessor in interest of the respondents Nos.3 to 6 and the respondent No.7, only 13 files have been mentioned without any detail. The petitioner is not reluctant to implement the decree, but time and again the petitioner is supplicating the executing Court to ask the decree holders to provide the details of the 13 files allegedly agreed to be transferred in their favour, because no detail of the said plot is either mentioned in the agreement to sell nor in the plaint and the same has not been furnished by the decree holders along with the execution petition or submitted thereafter. In this scenario, the objection raised by the petitioner is plausible especially when 19 files/plot have already been further transferred and details of the subsequent owners has already been submitted by the petitioner before the learned executing Court and has also been narrated in paragraph No.11 of the instant constitutional petition. In this view of the matter, before specifying and identifying the plots agreed to be sold to the decree holder(s) by the respondent No.7, forcing the present petitioner only on the basis of anonymous specification of plots to transfer in favour of the decree holder, does not appeal to prudent mind. All these aspects have not been considered by the learned Courts below while passing the impugned orders. No doubt the executing Court cannot go behind or beyond the decree, but at the same time all ancillary questions arising out of the decree have to be decided by the learned executing Court as has been enunciated under section 47 of the Code, 1908, which reads:- '

47. Questions to be determined by the Court executing decree.--(1) All questions arising between the parties to the suit in which the decree was passed, or their representatives, and relating to the execution, discharge or satisfaction of the decree, shall be determined by the Court executing the decree and not by a separate suit. (2) The Court may, subject to any objection as to limitation or jurisdiction, treat a proceeding under the section as a suit or a suit as a proceeding and may, if necessary, order payment of any additional court-fees. (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.' In the present case, as stated above, no detail of the plots with specification except 13 plots has been incorporated in the agreement to sell, on the basis of which the ex parte decree dated 20.03.2008 was passed; thus, before proceeding further, the learned executing Court should have considered and determined that which plots were agreed to be transferred in favour of the decree holder(s) and whether the decree is executable or not, in the given circumstances.

4. Pursuant to the above discussion, it is held the learned subordinate Courts while passing the impugned orders have failed to exercised vested jurisdiction as per mandate of law and have erred in declining the plausible supplication of the petitioner oozing in application filed under section 47 read with Order XXI, Code of Civil Procedure, 1908; thus, the impugned orders are not sustainable in the eye of law.

5. In view of the above, the constitutional petition in hand is allowed, impugned orders dated 06.01.2021 and 15.02.2021, passed by the learned Executing Court and learned Revisional Court, respectively, are set aside and the learned Executing Court is directed to firstly decide all ancillary questions submitted before it by the petitioner or the decree holder(s) as well as consider whether the decree is executable or not and then proceed further in accordance with law. ZH/D-1/L Petition allowed.