1995 PLP 1943 (MLD)

Whether the petition is maintainable? Thereafter, the Executing Court proceeded to hear arguments and concluded that since no execution proceedings are pending, therefore, the petitioners‑judgment‑debtors cannot maintain the application under section 47, C.P.C. The same was accordingly dismissed vide judgment dated 17‑7‑1994 which was assailed through an appeal before the District Judge, Sialkot, who confirmed this finding and dismissed the appeal. Therefore, now this revision petition which came up for limine hearing on 13‑3‑1995. The petitioners had originally challenged the orders dated 17-5‑1994 and 17‑7‑1994 passed by the Civil Courts and the order dated 20‑11‑1994 passed by the District Judge. However, after some arguments the learned counsel for the petitioners made a statement to the effect that he has instructions only to press this revision petition against the dismissal of their application under section 47, C.P.C. The petition was admitted to 'hearing, notice was issued to the respondents, who have appeared through Mr. Taqi Ahmad Khan, Advocate and contested the petition.

2. The learned counsel for the petitioners argued that the pendency of execution petition is not a condition precedent for maintaining application under section 47, C.P.C. The learned counsel in this behalf referred to the case reported as M.P. Shreevastava v. Veena (AIR 1967 SC 1193). The second argument is that the decree of the trial Court merged into the decree passed ultimately by this Court in the Regular Second Appeal. In this behalf the learned counsel referred to the cases reported as Maulvi Abdul Qayyum v. Syed Ali Asghar Shah (1992 SCMR 241), Mahboob Khan v. Hassan Khan Durrani (PLD 1990 SC 778) and F.A. Khan v. Government of Pakistan (PLD 1964 SC 520). Therefore, the decree, which could be executed is the decree of this Court dated 1‑6‑1977 but the same has been rendered un-executable as the respondents‑decree‑holders have not filed any execution petition uptil this date while according to amended section 48, C.P.C. no execution petition can be 'presented after the expiry of six years from the date of the decree to be executed. In this behalf the learned counsel has referred to the judgments reported as Mahboob Khan v. Hassan Khan Durrani (supra), Syed Muhammad Anwar Shah v. Maulvi Abdul Qayyum (PLD 1990 Pesh. 148) and Maqbool Ahmad v. Shahzad Tabasum (1995 CLC 358). In the thud place it is argued that the decree was also not executable because the same was granted by this Court subject to payment of balance of sale price within one month. It is maintained that the decree‑holders did not care to pay the amount, therefore, the suit stood dismissed automatically. The fourth argument is that in case the application under section 47, C.P.C. was not competent then the same could have been treated as a suit, of course with necessary amendments in form in view of the provisions of subsection (2) of section 47, C.P.C. In this behalf, reliance is placed on Noorul Amin v. Muhammad Hashim (1992 SCMR 1744), and Jane Margrete William v. Abdul Hamid Mian (1994 SCMR 1555). In the same context it is argued that the procedural technicalities should not defeat the ends of justice. In this behalf the learned counsel has referred to the cases reported as Noorul Amin v. Muhammad Hashim (supra), Allah Ditta v. Barkat Ali (1992 SCMR 1744), Muhammad Yousaf v. Khan Bahadur (1992 SCMR 2334), Sardar Begum v. Muhammad Anwar Shah (1993 SCMA 363), Jane Margrete William v. Abdul Hamid Mian (1994 SCMR 1555) and Mushtaq Ahmad Qureshi v. Muhammad Ashraf Khan (1994 MLD 1665). The fifth argument is that the respondents were fully conscious of the fact that the decree is unexecutable, therefore, by circumventing the law they got the mutation sanctioned by the Revenue Authorities. The object which cannot be achieved directly cannot be allowed to be achieved indirectly through back door. In this behalf, the learned counsel referred to the cases reported as Muhammad Nawaz Sharif v. President of Pakistan (PLD 1993 SC 473 at page 684) and Farid Khan and 3 others v. Abdul Latif and 11 others (PLD 1994 SC 363 at page 378).

3. On the other hand, the learned counsel for the respondents argued that the two Courts below rightly concluded that since there were no execution proceedings pending, therefore, the application was not competent. The learned counsel in this behalf has referred to section 47, C.P.C. and relied on the cases reported as Manmatha Pal v. Sarada Prosad (AIR 1939 Cal. 651) and Thargachami v. Veerappa (AIR 1937 Mad. 268).. It is argued that the respondents need not file execution proceedings if they otherwise have the benefits under the decree. It is added that they have been recorded as owners and enjoy constructive possession. Therefore, they neither repeated execution application nor they intend to move any such application. In this behalf, the learned counsel has referred to the cases reported as Ali Ahmad v. Muhammad Fazal (PLD 1973 Lah. 207), Nazoo v. Hassu Khan (1988 SCMR 1801), Maulvi Abdul Qayyum v. Syed Ali Asghar Shah (1992 SCMR 241) and Anjum v. Sufaidan (PLD 1989 Lah. 103). It is argued that there is no cavil with the power of the Executing Court to treat the objection petition under section 47, C.P.C. in view of the provisions of subsection (2) of the said section but it was not possible in the present case as the appeal filed by the petitioners against the rejection of the plaint under Order VII, Rule 11, C.P.C. was withdrawn. The arguments are concluded with the submission that there is no merit ‑in the plea that the decree‑holder has not deposited the sale price as directed by this Court in the Regular Second Appeal. It is explained that a sum of Rs.700 was deposited as 1/5th of the sale on 13‑2‑1962 and the balance of the sale price of Rs.300 was deposited on 23‑11‑1963 within one month of the decree passed by the trial Court. The learned counsel in this behalf has placed on record certified copy of the report made on the execution petition.

4. The learned counsel for the petitioners while summing up the arguments submitted that both the amounts were deposited by Faqir Hussain therefore, Muhammad Khan or his successors cannot take benefit of the same. The learned counsel in this behalf also relied on the certified copy of the report submitted by the learned counsel for the respondents.

5. I have given my anxious consideration to the arguments of the learned counsel for the parties and gone through the relevant provisions of Part II, C.P.C. and the precedent cases. The basic question for the decision is that whether the application under section 47, C.P.C. is competent in the absence of pendency of execution petition. Both the Courts below have concluded that since no execution proceedings are pending, therefore, there is no executing Court while the application under section 47, C.P.C. can only be presented to the Executing Court. Now before proceeding any further I would refer to section 38, C.P.C. which deals with the Court by which decree may be? executed. The same reads as under:‑‑‑ "A decree may be executed either by the Court which passed it, or by the Court to which it is sent for execution." It is clear that basically it is for the trial Court to execute its decree. Now coming to section 47, C.P.C. which deals with the questions to be determined by the Court executing the decree. The same reads as under:‑‑‑ "

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. Explanation.‑‑‑For the purposes of this section, a plaintiff whose suit has been dismissed and a defendant against whom a suit has been dismissed, are parties to the suit." The learned counsel for the petitioners in support of the argument that pendency of execution proceedings is not a condition precedent for maintaining objection petition under section 47, C.P.C. has rightly referred to the case of M.P. Shreevastava (supra) wherein the Supreme Court of India after examining the precedents on the point concluded that pendency of an application for execution by the decree‑holder is not condition for exercise of powers under section 47, C.P.C. The relevant portion of the judgment reads as under:‑‑‑ ?"*****But there is no warrant for the argument that the expression `Court executing the decree' as used in section 47, C.P. Code means a `Court which is seized of an application for execution of a decree at the instance of the decree‑holder'. Section 47 enacts the salutary rule that all questions relating to execution, discharge or satisfaction of the decree shall be determined not by a separate suit, but in execution of the decree. The power so conferred may not be limited by any strained or artificial construction of the words `Court executing the decree'. The expression `Court executing the decree' has not been defined, and having regard to the scheme of the Code it cannot have a limited meaning, as argued by counsel for the appellant. The principle of the section is that all questions relating to execution, discharge or satisfaction of a decree and arising between the parties to the suit in which the decree is passed, shall be determined in the execution A proceeding and not by a separate suit; it follows as a corollary that a question relating to execution, discharge or satisfaction of a decree may be raised by the decree‑holder or by the judgment‑debt of in the execution department and that pendency of an application for execution by the decree‑holder is not a condition of its exercise. An, application made by the judgment‑debtor is not a condition of its exercise. An application made by the judgment‑debtor which raises a question relating to execution, discharge or satisfaction of a decree in a suit to which he, or the person of whom he is a representative, was a party in an application before the Court executing the decree, and must be tried in that Court."

6. Now coming to our own Court. I may refer to the following portion of the classic judgment of Mr. Justice B.Z. Kaikaus (as his Lordship then was) in the case reported as Sahib‑un‑Nissa v. Mahmooda Begum (PLD 1959 (W.P.) Lah. 511):‑‑‑ "

9. That the Court has jurisdiction to determine whether a decree should be executed by delivery of possession of property which is in the occupation of a particular person is not denied. The only point is whether this jurisdiction can be exercised at the instance of the person in possession only when that person has already been illegally dispossessed. I do not see why the exercise of this jurisdiction should be limited to a situation which arises by the dispossession of a person. Order XXI, Rule 100 gives a right to a party to apply but when the party has not yet been dispossessed, it is a matter of discretion with the Court as to whether it would or would not determine the question beforehand. It may be that some interested person wants to use such a procedure for delaying execution. In that case the Court will refuse to entertain such an application. But the jurisdiction to entertain it does exist." It was further held that there is always inherent jurisdiction in a. Court executing a decree to determine how, to what extent, and in what manner a decree is to be executed. It was observed that it was not possible to subscribe to the view that the determination of the question most relevant to the decree may be postponed till after illegality is committed by a party. For instance is the present case‑law provides that all questions relating to execution, discharge or satisfaction of a decree shall be determined by the executing Court. Now the petitioners, who maintained that the decree is not executable cannot get the adjudication of this question through a civil suit in view of the provisions of section 47, C.P.C. While, on the other hand, due to narrow interpretation put by the Courts below that the petitioners cannot maintain the application under section 47, C.P.C. because no execution proceedings are pending. It means that the petitioners cannot seek redress of their grievance in any forum. The object of the codified law is that a cunning and influential litigant should not be allowed to get away with illegal gains. It is the cardinal principle of interpretation of statutes that it shall advance remedy and suppress mischief. Conversely speaking, rules and procedure are not to be used as stumbling blocks in the process of justice. In this behalf reference can be made to Manager, Jammu & Kashmir, State Property in Pakistan v. Khuda Yar and another PLD 1975 SC 678, M. Shahid Saigol and 16 others v. M/s. Kohinoor Mills Ltd. and 7 others PLD 1995 Lah. 264, Fisher v. Hervery (9 Colo. 16), Backer v. Amos (Fla) 141 So. 136, Haskel v. Burlington (30 Lowa 232), Shea v. Paters (230 Mass. 197, 119 N.E. 746), State v. Public Serv. Comm. (Mo.) (34 S.W. (2) 27), Carley v. Liberty Hat Mfg. Co. (81 NJ.L. 502, 79 Atl, 447), State v. Lipkin 169 N.C. 265, 84 S.E. 340, Wright v. Barber 270 Ps. 186, 113 Ad. 200, State v. Pullen (R.1.) 192 Atl. 473, Baumann v. West Allis, 187 Wis. 506, 204 N.W. 907, Amos v. Conkling (99 Fla. 206, 126 S. 283, Inabinet v. Royal Exchange Assur. Co. (SC) 162 S.E. 599 and Kitts v. Kitts 136 Tenn, 314, 189 S.W.

375. All matters fairly within the scope of such a statute should be included, even though outside the letter, if within its spirit or reason. Reference in this behalf can be made to Traudt v. Hagerman 27 Ind. Ap. 150, 60 N.E. 1011, Harbeck v. Pupin 123 N.Y. 115, 25 N.E. 311, Peet v. Mills 76 Wash. 437, 136 Pac. 685, Hassan v. Chester 67 W.Va. 278, 67 S.E.

731. It is, therefore, not possible for me to accept the proposition, at the end of 20th Century with the Fundamental Rights and Constitutional guarantees to provide social, economic and political justice to the citizens, that the petitioners have no remedy. Now approach should be that greater is the infringement or illegality or grievance complained of, the effective should be the remedy afforded to the aggrieved party under the law of the land, which is to be interpreted as progressive and not treated as static. I am, therefore, of the view that the application was competent and the same was dismissed wrongly and illegally. Conversely C sneaking the Courts below have failed to exercise jurisdiction in accordance

7. In view of the order proposed I need not touch the merits. I am thankful to M/s. Mahmood Ahmad Bhatti and Taqi Ahmad Khan, Advocates, learned counsel for the parties for their rendering valuable assistance.

8. The upshot of the above discussion is that this revision petition is accepted with no order as to costs. The result is that the objection petition under section 47, C.P.C. of the petitioners would be deemed pending before the executing Court who shall decide all questions including legality of Mutation No.546 expeditiously and in any case before the 23rd of December, A.A./M-2503/L?????????????????????????????????????????????????????????????????????????????????? Revision accepted.