2015 PLP 987 (CLC)

SHAHID WAHEED, J.

In the case on hands, respondent No.1 filed a suit for declaration to the effect that the acquisition proceedings qua his alleged land were illegal with the consequential prayer that he was entitled to get damages of Rs.46800 as compensation. The present petitioner resisted the said suit on the ground that the land did not belong to the respondents Nos.1 and 2; that land was acquired from the Central Government for the construction of canal; and, that the land was barren and, therefore, there was no question of payment of any compensation. This suit was dismissed by the learned Trial Court vide judgment and decree dated 4-3-1997. The respondent No.2, feeling aggrieved, assailed the said judgment and decree through an appeal under section 96 of C.P.C. before the learned Additional District Judge, Sheikhupura. This appeal was accepted vide judgment and decree dated 30-9-1999. The said judgment and decree were not further assailed and thus the same attained finality.

2. On 3-1-2001, the respondents Nos.1 and 2 filed an application for the execution of decree dated 30-9-1999. During the proceedings of the said petition the respondents Nos.l and 2 received amount of compensation i.e. Rs.42900. On payment of said amount, the execution petition was consigned to record vide order dated 7-11-2002.

3. On 2-4-2003, the respondents Nos.1 and 2 filed second petition for the execution of decree dated 30-9-1999 for the payment of cost of Rs.2064 and possession of the land. This petition was resisted by the petitioners by filing objection petition. The learned Executing Court/Senior Civil Judge, Sheikhupura dismissed the objection petition vide order dated 23-7-2003. The petitioner assailed the said order through an appeal before the learned Additional District Judge, Sheikhupura. This appeal was also dismissed vide order dated 10-11-2004. Hence, this petition.

4. Learned Additional Advocate-General contends that orders of the learned courts below suffer from misapplication of provisions of law and misreading of the record; that the learned courts below have failed to appreciate the true legal position with regard to established principle of law that executing court cannot go beyond the decree; that nowhere in the suit for declaration filed by respondents Nos.1 and 2 prayer for possession was made and, therefore, the said relief could not be allowed in the garb of execution of the decree; and, that the second execution petition was not competent.

5. On the other hand, despite service of notice none has entered appearance on behalf of respondents Nos.1 and 2 and, therefore, they are proceeded against ex parte.

6. Before proceeding further it is apposite to state here that this revision petition is barred by time. I confronted learned Addl. Advocate-General with this fact. He submits that impugned orders suffer from material irregularity; and, that the said illegality or irregularity cannot be allowed to be remained in field on the ground of limitation; and, that in order to undo the perversity and illegality in the impugned order the powers under section 115(1), C.P.C. be invoked. Since this petition has been admitted to regular hearing vide order dated 27-1-2006, I am inclined to exercise my suo motu power under section 115(1), C.P.C. to examine the validity of the impugned orders and appraise the arguments of the learned Addl. Advocate-General.

7. The question with regard to maintainability of the second execution petition; applicability of the principle of res judicata; and the power of the Executing Court to go beyond the decree were the substantial questions of law and facts. The averments made in the objection petition and the above said questions could not be decided in a summary manner. The learned Executing Court was required to frame issues and thereafter to decide the same in accordance with law. Non-framing of issues and non-affording of opportunity to lead evidence in the given facts and circumstances of the case was not only violative of the principle of natural justice but also Article 10-A of the Constitution of the Islamic Republic of Pakistan, 1973 which guarantees fair trial for determination of the rights.

8. In the sequel, I am inclined to set aside the order dated 10-11-2004 of the learned Addl. District Judge, Sheikhupura and the order dated 23-7-2003 of the learned Senior Civil Judge, Sheikhupura. Resultantly, the objection petition filed by the petitioner shall be deemed to be pending before the learned Executing Court which shall decide the same afresh after framing issues and in accordance with law. Parties are directed to appear before the learned Executing Court/Senior Civil Judge, Sheikhupura on 23-4-2015. No order as to costs. KMZ/P-14/L Case remanded.