2020 PLP 40 (CLCN)

AZIZ-UR-REHMAN, J.

By means of this Constitution Petition No. D-5585 of 2016, the Petitioner viz. Saeeda Salahuddin widow of Muhammad Salahuddin through her duly constituted attorney viz. Muneeb Salah Shah, has assailed the 'impugned order' dated 07.09.2016, passed by learned VIIIth Additional District and Sessions Judge, Karachi-South, Karachi, in Civil Revision Application No.23 of 2016 [Saeeda Salahuddin widow of Muhammad Salahuddin v. Flight Lt. Retd. Farouk Aziz Effendi and another], whereby, the 'Order' dated 03.02.2016, 'impugned' in the aforesaid Civil Revision Application, earlier passed by the learned Senior Civil Judge Karachi-South, was upheld and resultantly, the Civil Revision Application No.23 of 2016, was dismissed. The Petitioner herein, thus, feeling herself 'aggrieved' by and 'dis-satisfied' with aforesaid orders [Annexures 'I' and 'J' to the MoP'] has approached this Court 'inter alia' with a prayer that both the aforesaid 'impugned orders' passed by Respondents Nos. 3 and 4 herein, respectively, be set aside, as the same, beside, being erroneous, illegal, have been passed without any lawful authority/without jurisdiction and consequently, the Execution Application No. 32 of 2015 [Mst. Amtur Rehman Begum [since deceased], through her legal heirs v. Flight Lt. [Retd.] Farouk Aziz Effendi and another], arising out of New Suit No.731 of 2003 [Old Suit No.584 of 1984], filed on 21.04.2015 [Annexure 'G' to MoP], by Mrs. Saeeda Salahuddin widow of Muhammad Salahuddin, be declared as maintainable, well within time [i.e. not time barred], and quite enforceable in terms of the 'Compromise Decree' gated 04.05.2009 [Annexure 'A/4' to the MoP]. The prayers sought in the Memo of Petition [In short MoP], are as follows:- a] Order dated 07.09.2016 passed by Respondent No.4 upholding the Order dated 03.02.2016 passed by Respondent No.3 may very kindly be declared as unlawful, without lawful authority as both the said Respondents failed to exercise jurisdiction properly under the law and be further declared that the Execution Application of the Petitioner was well within time under the facts and circumstances and the same be executed in accordance with Compromise Decree dated 05.05.2009. b] Restrain the Respondent No.1 or any other person claiming on his behalf not to interfere into the peaceful possession of the Petitioner till the final decision of this petition. b](sic.) Grant any other/further relief (s) deemed fit and proper by this Hon'ble Court under the circumstances of the case.

2. The brief of relevant facts giving rise to the filing of the instant Constitution Petition No. D-5585 of 2016 are that; one Mst. Amtur Rehman widow of Syed Kazim Ali filed a Civil Suit No.526 of 1984 [Amtur Rehman widow of Syed Kazim Ali v. Flight Lt. [Retd] Farouk Aziz Effendi son of Ikramullah and DHA], for 'Declaration' and Specific 'Performance' in the Court of IInd Civil Judge, Karachi, [South], in respect of Plot No.6-B, Central Avenue, Phase-II, Pakistan Defence Housing Authority [DHA], Karachi, measuring 1,200 sq. yds together with construction thereon [the subject property]. The Respondents Nos.1 and 2, at the relevant time, were duly served. Upon death of Amtur Rehman, the said suit was allotted a New No. 731 of 2003 [Amtur Rehman through her legal heirs i.e. [i]. Mubarak Ali Shah son of Kazim Ali Shah [ii]. Mrs. Shakira Haqqi widow of Syed Allauddin Haqqi and [iii] Mrs. Saeeda Salahuddin widow of Muhammad Salahuddin v. Flight Lt. [Retd.] Farouk Aziz Effendi and another]. In the above said suit parties during its' pendency, arrived at a 'Settlement'. The said suit, thus was decreed on 04.05.2009, by learned IInd Senior Civil Judge, Karachi [South], in terms of Compromise Application, under Order XXIII, Rule 3, C.P.C., in presence of the parties. The order dated 04.05.2009, passed on the Compromise Application under Order XXIII, Rule 3, C.P.C., reads as follows:- "The plaintiff No.1 who is attorney of plaintiffs Nos. 2 and 3, defendant No.1 and counsel for the parties are present. They moved compromise application jointly contents of the compromise application read over to the parties who accept it to be true and correct. They also signatures of compromise application. They are agreed to the terms and conditions of application and also abide it. In view of the compromise application moved by the parties jointly, suit stands decreed in terms of compromise application, there is no order as to costs. [Underlining is ours]

3. In terms of 'Compromise Decree' passed on 04.05.2009 [Annexure 'A/4' to the MoP], the 'subject property', was to be transferred in the name of Mubarak Ali Shah [Plaintiff No.1-Decree-holder No.1 in the said suit] or his 'nominee', by the deceased Respondent No.1/Judgment-debtor No.1 viz. Flight Lt. [Retd.] Farouk Aziz Effendi. Similarly, as per 'clause [b]', the said Respondent No.1, was also obliged to get the 'B' Lease executed and registered in his name, however, upon fulfillment of the requisite formalities from DHA or any other department/authority. Per Petitioner's version, after getting the 'B' Lease executed and Registered, Flight Lt. [Retd.] Farouk Aziz Effendi son of Ikramullah [late], was under legal obligation to also get registered a 'Conveyance Deed' in favour of Mubarak Ali Shah or his 'nominee' for the purpose of transfer of the 'subject property' in the Records of the Respondent No.2. [D.H.A].

4. According to the Petitioner's version, the agreed 'sale consideration' in respect of the 'subject property' is Rs.10,000,000/- [Rupees Ten Million only], which, as agreed, was to be paid by Plaintiff No.1 viz. Mubarak Ali Shah son of Kazim Ali Shah to Respondent No.1 [Judgment-debtor No.1] namely Flight Lt. [Retd.] Farouk Aziz Effendi, in a manner that is to say, Rs.56,89,714/- [Rupees Fifty Six Lacs, Eighty Nine Thousand, Seven Hundred and Fourteen only] then, lying with the Nazir of High Court, it was mutually agreed to be adjusted towards' the 'sale consideration' of the 'subject property' which amount, as asserted, has already been released and paid by Nazir of this Court on 3.9.2009 to Judgment-debtor No.1 [Defendant No.1] viz. Flight Lt. [Retd.] Farouk Aziz Effendi. Further, as per Clause [e] of the 'Compromise Decree' of 04.05.2009, the balance amount of Rs.43,10,286/- [Rupees Forty Three Lacs, Ten Thousand, Two Hundred and Eighty Six only], as mutually agreed, was to be paid at the time of 'Registration' of 'Conveyance Deed' in favour of Mubarak Ali Shah [Late] or his 'nominee'.

5. By virtue of 'Clause [g]' of the 'Compromise Decree' dated 4.5.2009 [Annexure 'A/4' to the MoP], Respondent No.1 viz. Flight Lt. [Retd.] Farouk Aziz Effendi [now deceased] if, failed to appear, signs, and execute the 'requisite documents' or otherwise, he failed to appear before 'DHA' and Sub-Registrar for Execution and Registration of 'B' Lease in his own name and/or for Registration of 'Conveyance Deed' before the Sub-Registrar or any other concerned authorities in favour of Mubarak Ali Shah son of Kazi Ali Shah then, in such eventuality, Nazir of the Court was to appear, sign and execute all such required transfer documents, deeds etc. for the purpose of execution and Registration of 'B' Lease and for Registration of 'Conveyance Deed' and transfer of 'subject property' by DHA/Cantonment Board in favour of Decree-holder No.1 namely Mubarak Ali Shah son of Kazim Ali Shah [Plaintiff No.1-Decree Holder No.1] or his 'nominee'. As evident, from 'Clause [h]' of the Compromise Decree passed on 04.05.2009, the 'possession' of the 'subject property' was already with Plaintiffs including the Petitioner lady i.e. Plaintiff No.3. Besides, in terms of 'Clause [k]' of the 'Compromise Decree', the Respondent No.2 herein, [DHA], was also directed to execute and get Registered the 'B' Lease in the name of Flight Lt. [Retd.] Farouk Aziz Effendi i.e. Defendant No.1-Respondent No.1 herein, in the first instance and thereafter, to transfer the 'subject property' in the name of Mubarak Ali Shah son of Kazim Ali Shah or his 'nominee'.

6. Respondent No.1 herein, as alleged, on one pretext or the other. ignored and/or avoided to get the 'B' Lease executed in his name from DHA [Respondent No.2 herein], as averred, on account of and due to some issues viz-a-viz 'extra land', adjacent to the 'subject property'. Per Petitioner's stand, as and when, any kind of issue either arisen or otherwise, it was brought in the notice/knowledge of the Petitioner's 'predecessor-in- interest' by deceased Respondent No.1 namely Flight Lt. [Retd.] Farouk Aziz Effendi, then, the same, as asserted in the Memo of Petition [In short MoP], was not only properly dealt with but the same was actively attended/redressed. According to the Petitioner's stand, on different occasions but on the 'intimation' of Respondent No.1, the Petitioner's predecessor-in-interest, as per wish of Judgment-debtor No.1/Respondent No.1, did pay different amounts to DHA, in relation to the 'subject property' inter alia for execution of 'B' Lease etc. One such payment, in the sum of Rs.2,46.228/- [Rupees Two Lac Forty Six Thousand and Two Hundred Twenty Eight only], in favour of DHA, has been made through Pay Order No.238800 of 02.03.2015, drawn on Sindh Bank, DHA, Phase-II, Karachi. Moreover, for the purpose of the execution of 'B' Lease, on 18.03.2015, the deceased Respondent No.1 herein, had also issued an 'Authority Letter' in favour of the Petitioner herein, for collection of the 'Site Plan' of the 'subject property' from Respondent No.2 [DHA], which it is needless to say, was also acted upon.

7. Despite, the above, Respondent No.1, during his lifetime, 'off and 'on', had started to create problems in the way of the Petitioner, so as to avoid, the execution of 'B' Lease prior to execution and Registration of 'Conveyance Deed' in favour of deceased Mubarak Ali Shah son of Kazim Ali Shah [predecessor-in-interest of the Petitioner], in the records of DHA [Respondent No.2 herein]. Besides, the said Respondent No.1, also avoided the execution of 'Conveyance Deed' in favour of the deceased Mubarak Ali Shah son of Kazim Ali Shah. Apart from the above, deceased Respondent No.1 herein, also filed a Civil Suit No.924 of 2015 [Flight Lt. (Retd.) Farouk Aziz Effendi through his Attorney viz. Mr. Amir Aziz v. Mrs. Saeeda Salahuddin widow of Muhammad Salahuddin] on 23.5.2015, before this Court for 'declaration', 'possession', 'mesne profit' and 'permanent injunction' regarding 'subject property'. The prayers sought in the Suit No.924 of 2015, read as follows: (A) To declare that the Plaintiff is lawful owner of Subject property bearing House No.6-B, measuring 1200 Square Yards or thereabout, Central Avenue, Phase-II, D.H.A. Karachi. (B) To declare that the defendant or any person[s] claiming through her has no right, title and interest in the subject property in any manner and she is unauthorisedly and illegally occupying and possessing the subject property and is liable to be evicted under the decree of this Hon'ble Court. (C) To declare that the Plaintiff is entitled for the grant of mesne profit at the rate of Rs.150,000/- per month in respect of subject property on account of unauthorized possession of the defendant in the subject property and she is liable to pay the same to the plaintiff and pass judgment and decree against her for mesne profit at the above rate for the previous 36 months from the date of institution of this suit and future mesne profit with 10% per annum increase therein till the possession of the subject property is handed over to the Plaintiff: (D) To direct the defendants to hand over the peaceful physical vacant possession of the subject property to the Plaintiff and on her failure to do so, the Nazir of this Hon'ble Court may be directed to take over the possession thereof from the said defendant or any person[s] claiming possession through her for onward delivery of the same to the plaintiff [Underlining is ours]. (E) To grant permanent injunction by restraining the defendant, her agents, representatives, attorneys, men and persons acting on her behalf from changing the status of the subject property and handing over its possession to any body/person or party in any manner of whatsoever nature till the disposal of above suit. (F) To grant cost of the suit. (G) To grant any other relief which this Hon'ble Court may deem fit and proper under the circumstances of the case.

8. The above-said suit, apart from having no basis whatsoever, under the law or facts, 'ex-facie' was filed malafidely. Nevertheless, the deceased Respondent No.1, namely Flight Lt. [Retd.] Farouk Aziz Effendi, later on, in his own wisdom, opted to withdraw the said suit on 22nd February, 2106, 'un-conditionally'. Being relevant, Order dated 22.02.2016, passed in Suit No.924 of 2015 [Flight Lt. (Retd.) Farouk Aziz Effendi through his Attorney viz. Mr. Amir Aziz v. Mrs. Saeeda Salahuddin widow of Muhammad Salahuddin], reads as follows:-

1. For orders on C.M.A. No.2851/2016.

2. For orders on C.M.A. No.2852/2016 22.06.2016 Mr. Mohammad Azhar Faridi, Advocate along with Plaintiff's Attorney.

1. Granted.

2. This is an application filed by the plaintiff for unconditional withdrawal of the instant suit. Application is allowed. Suit is dismissed as withdrawn along with pending application(s). [Emphasis added].

9. Much before dismissal of the aforesaid suit on 22.02.2016, the Petitioner herein, viz. Mrs. Saeeda Salahuddin Ahmed widow of Muhammad Salahuddin, however, had opted to file an Execution Application No.32 of 2015, on 21.4.2015, against Flight Lt. [Retd.] Farouk Aziz Effendi and another [JDs.] for enforcement of the 'Compromise Decree', passed on 04.05.2009, in Suit No.731 of 2013 [Mst. Amtur Rehman through her legal heirs Mubarak Ali Shah and 2 others v. Flight Lt. (Retd.) Farouk Aziz Effendi and 2 others including the Petitioner herein]. The mode in which the assistance of the learned executing Court, was sought is as under:-

11. Mode in which the assistance of the Court is required for transfer of plot No. 6-B, Central Avenue, Phase-II, DHA, Karachi ad-measuring 1237 sq. yds. Mode in which the assistance of the Court is required: A) Directing the defendant/J.D. to Execute and register Sale Deed in respect of the suit plot bearing No.B-6, Central Avenue, Phase-II, DHA, Karachi in favour of plaintiff/D.H. and on the failure of the defendant/ J.D to do so the Nazir of this Hon'ble Court may be directed to execute and request Sale Deed of the suit Plot in favour of the plaintiff/D.H. B) Directing the defendant/ J.D. to deliver all the original documents of the title of the suit plot to the plaintiff. By arrest and imprisonment of the judgment/debtor in the civil Prison who has not been arrested before in execution of this decree Under O. XXI, rule 37, C.P. Code.

10. The said Execution Application No.32 of 2015, filed on 21.04.2015, was seriously opposed/resisted by Respondents Nos.1 and 2 herein, mainly on the ground that it was hopelessly time barred, because it was filed, after a delay of 05 years 11 months and 17 days approximately i.e. from the date of passing of the 'Compromise Decree' on 04.05.2009. [Annexure 'A/4' to the MoP]. The aforesaid Execution Application No.32 of 2015, upon hearing of the objections filed by J.Ds, was consequently, dismissed vide Order dated 03.02.2016, passed by the learned Executing Court i.e. Senior Civil Judge-II, Karachi [South] holding thereby, that the aforesaid Execution Application No.32 of 2015, filed on 21.04.2015, is beyond the period of three [3] years, as provided, under Article 181 of the Limitation Act [XI of 1908], thus the same was held hopelessly time barred. The Petitioner herein, thus feeling 'aggrieved' by and 'dis-satisfied' with Order dated 03.02.2016 [Annexure 'I' to the MoP], filed a Civil Revision No.23 of 2016, challenging thereby, the earlier Order dated 03.02.2016, passed by the learned Senior Civil Judge-II, Karachi-South before learned Additional District and Sessions Judge, Karachi-South [Respondent No.4 herein].

11. The said Civil Revision No.23 of 2016 [Saeeda Salahuddin widow of Muhammad Salahuddin v. Flight Lt. Retd. Farouk Aziz Effendi and another], as being devoid of any merits, however, was later-on dismissed on 07.09.2016 [Annexure 'J' to the MoP], by upholding the Order of 03.02.2016 [Annexure 'I' to the MoP], passed by Respondent No.3, whereby, the Execution Application No.32 of 2015 was earlier dismissed. The relevant paras of the 'impugned order' dated 07.09.2016 [Annexure 'J' to the MoP] read as follows: "

8. I have given my anxious consideration, to the arguments advanced by the learned counsel for the respective parties and perused the material available on record including the case law produced on behalf of respondent's side. Perusal of record it reveals that applicant/plaintiff/D.H. and respondent No.1 have filed compromise application under Order XXIII, rule 3, C.P.C. in Civil Suit No. 731/2003 before the learned Trial Court which was decreed in terms of the compromise vide order dated 04.5.2008. Thereafter, on 21.4.2015 applicant/plaintiff/D.H. filed execution application No.32/2015 before the learned trial Court after the delay of 05 years, 11 months and 17 days approximately from the date of passing the decree in terms of compromise application. That under Article 181 of Limitation Act read with section 48, C.P.C., the execution application is to be filed within period of 03 years from the date of decree by compromise dated 04.5.2008 which is appearing to be time barred as required under the relevant provision of law.

9. Whereas the material available on record it reveals that no application of similar nature filed by the applicant/plaintiff/D.H. prior to said execution application No.32/2015. However, with regard to the argument of learned counsel for the applicant/plaintiff/D.H. that section 48, C.P.C. is applicable in such circumstances. I am fortified with the case law viz: 2013 SCMR 05, produced by the learned counsel for respondent No.1. Further, the first execution application must be made within the period as prescribed by the Limitation Act and section 48, C.P.C. would apply only to any subsequent application to execution and if no application at all is made within the stipulated period of Limitation Act, the execution application made thereafter would be barred by limitation and as such there would no occasion to avail the benefit of extended time provided by section 48, C.P.C. The result of above discussion is that the first application must be made within period as prescribed in the Limitation Act and that section 48, C.P.C. would apply only to subsequently application for execution. Whereas in the circumstances discussed above, section 48, C.P.C. has no applicability to the facts of instant civil revision application. [Underlining is ours].

10. With these observations the Civil Revision Application in hand is dismissed in the extreme interest of justice and disposed of accordingly."

12. The Petitioner lady, namely Saeeda Salahuddin widow of Muhammad Salahuddin, as being a Decree-holder, once again, feeling 'aggrieved' by and 'dis-satisfied' with the 'impugned order dated 07.09.2016' [Annexure 'J' to the MoP], through her duly constituted Attorney viz. Muneeb Saleh Shah, has approached this Court by way of filing the instant Constitution Petition No.D-5585 of 2016 [Saeeda Salahuddin through her Attorney Muneeb Saleh Shah son of Muhammad Salahuddin v. Flight Lt. [Retd.] Farouk Aziz Effendi] 'inter alia' with a prayer for setting aside the 'impugned orders' [Annexures 'I' and 'J' respectively to the MoP] and seeking a 'declaration' to the effect and extent that the Execution Application No.32 of 2015, filed on 21.04.2015, is within time and not time barred, as has been held through the concurrent 'impugned orders', passed by the Courts below i.e. Respondents Nos.3 and 4 herein, respectively.

13. According to the Petitioner's stand, the 'impugned order dated 07.09.2016', passed by Respondent No.4 herein, besides, being patently illegal, erroneous is un-tenable under the law. Both the Courts below [i.e. Respondents Nos.3 and 4 herein], have badly failed to 'exercise jurisdiction' vested in them under the law properly. Moreover, both the Courts below, as urged, have also failed to apply the correct provisions of law while dismissing the aforesaid Execution Application No.32 of 2015, [Mst. Amtur Rehman Begum and others v. Flight Lt. [Retd.] Farouk Aziz Effendi and another], filed on 21.04.2016. The 'impugned orders', per Petitioner's stand, are not only unlawful, without lawful authority but the same have also been passed against the relevant provisions of law. Both the 'impugned orders', passed by the Courts below, are illegal and of no legal effect, as per Petitioner's version, both the courts below have badly failed to properly exercise their jurisdiction. Hence this Petition.

14. On 18.10.2016, when the instant Constitution Petition No.D-5585 of 2016 [Saeeda Salahuddin through her Attorney Muneeb Saleh Shah son of Muhammad Salahuddin v. Flight Lt. [Retd.] Farouk Aziz Effendi], came-up before the Court then, this Court while, granting the urgent application, notices were issued to Respondents Nos.1 and 2 only, for 8.11.2016. Till next date i.e. 8.11.2016, parties, however, were directed to 'maintain status-quo' in respect of the 'subject property' i.e. Plot No.6-B, Central Avenue, Phase-II, Defence Housing Authority [DHA], Karachi, measuring 1200 sq. yds, together with construction thereon. The ' interim order' dated 18.10.2016, for ready reference, is reproduced herein-in-below:- 18.10.2016 Mr. Muhammad Masood Khan, Advocate for the Petitioner.

1. Urgency granted.

2. Deferred.

3. Exemption granted subject to all just exceptions. 4 and

5. Notice to the respondents Nos. 1 and 2 only for 08.11.2016. Till the next date of hearing, status-quo to be maintained in respect of the subject property." [Emphasis added].

15. On service, Respondent No.1 herein namely Flight Lt. [Retd.] Farouk Aziz Effendi son of late Ikramullah filed a 'detailed' and 'comprehensive' 'counter affidavit', in response to the Memo of Petition [In short MoP] wherein, not only both the 'impugned orders' were strongly defended but 'inter alia' while, raising some 'preliminary objections' regarding maintainability of the instant Petition No.D-5585 of 2016, the 'adverse allegations'/'stand' taken by the Petitioner lady, were/was also specifically denied/controverted. The 'preliminary objections' raised by Respondent No.1 [Judgment-debtor No.1], are reproduced herein-below:- A. That the Petitioner has no locus standi to file the instant Petition as she is not an aggrieved party in terms of Article 199 of the Constitution of Pakistan. It is submitted that the Petitioner has filed the instant Petition ostensibly on the strength of Compromise Decree [Annex A-4 to the Petition] reached between her brother Mubarak Ali Shah son of Kazim Ali Shah and the Answering Respondent whereby the Plot No.6-B, Central Avenue, Phase II, Karachi ["Subject Property" was to be transferred to the said Mubarak Ali Shah or his Nominee. As such, only Mubarak Ali Shah [who subsequently passed away on 17.1.2014] was competent to file an execution application to enforce the decree passed in his favour. B. Even otherwise, the instant Petition is not maintainable as the same has been filed by an unauthorized person namely, Moneeb Saleh Shah son of Muhammad Salahuddin who has not produced any power of attorney from the Petitioner and the instant Petition is to be dismissed on this count alone. C. That for reasons explained herein below it is submitted that the Petitioner and her purported Attorney have come to this Court with unclean hands and have filed the instant Petition to usurp the Subject Property. [Underlining is ours] . . .

16. From the record, it reflects that the Judgment-debtor No.1 herein viz. Flight Lt. [Retd.] Farouk Aziz Effendi son of Ikramullah [late], had also filed a Civil Suit No. 924 of 2015 for 'Declaration', 'Possession', 'Mesne Profit' and 'Damages' before this Court on 29.05.2015 against the Petitioner, lady herein which suit, nonetheless, was later on, withdrawn un-conditionally. As far as, Suit No.526 of 1984 is concerned, the same was re-numbered as Civil Suit No.731 of 2003. Upon Amtur Rehman's death, her legal heirs i.e. [i]. brother [Mubarak Ali Shah], [ii]. sister [Shakira Haqqi] and [iii]. Mrs. Saeeda Salahuddin, [the Petitioner herein] were impleaded as co-plaintiffs in the said suit. The said Suit later on, was settled by way of filing a 'Compromise Application' [Annex 'A/2' to the MoP] and passing of a 'Compromise Decree' dated 04.05.2009, in terms thereof [Annex 'A/4' to the MoP]. According to 'Compromise Decree' of 04.05.2009, Respondent No.1 herein [Judgment-debtor No.1], had agreed to transfer the 'subject property' along with construction thereon, in favour of Decree-holder No.1 namely Mubarak Ali Shah son of Kazim Ali Shah or his 'nominee'.

17. According to 'Compromise Decree' dated 04.05.2009 [Annexure 'A/4' to the MoP], the 'B'-Lease of the 'subject property' was to be executed by DHA in favour of Judgment-debtor No.1, where-after the later was bound to execute a Registered 'Conveyance Deed' in favour of Mubarak Ali Shah [Decree-holder No.1]. All fees etc. in that respect was to be paid/borne by Mubarak Ali Shah [Decree-holder No.1]. In terms of the 'Compromise Decree' of 04.05.2009 the Decree-holder [Mubarak Ali Shah] was to pay 1 crore rupees to Judgment-debtor No.1 viz. Flight Lt. [Retd.] Farouk Aziz Effendi son of Ikramullah [late] as 'sale consideration'. The sum of Rs.5,689,714/-, then lying with the Nazir [deposited by Mubarak Ali Shah], was to be paid/handed over to Respondent No.1 herein, [Judgment-debtor No.1] and, as agreed, was to be adjusted towards' the 'sale consideration'.

18. The balance amount of Rs.43,10,286/- [Rupees Forty Three Lac Ten Thousand Two Hundred Eighty Six only] was to be paid to Judgment-debtor No.1 but at the time of 'execution' and 'Registration' of 'Conveyance Deed' in favour of Mubarak Ali Shah [Decree-holder No.1]. In case of Judgment-debtor No.1's failure to appear, sign, execute the requisite documents for execution of 'B'-Lease and 'Registration' of 'Conveyance Deed', the Nazir of this Court, as per 'Compromise Decree' dated 04.05.2009, was then, to replace the Judgment-debtor No.1 and thereafter, Nazir of this Court was to perform/do all the requisite acts. Late Mubarak Ali Shah, in his lifetime, however, neither opted to file any Execution Application or otherwise, sought the execution of 'Conveyance Deed' in his favour. Moreover, the Decree-holder No.1, never designate a 'nominee' as per 'Compromise Decree' passed on dated 04.05.2009.

19. Per Respondent No.1's version, the Decree-holder viz. Mubarak Ali Shah son of Kazim Ali Shah, never indicated his 'readiness' to pay the remaining amount, as per the 'Compromise Decree', nor otherwise, filed any execution application for the enforcement of the 'Compromise Decree' dated 04.05.2009 [Annexure 'A/4' to the MoP]. In fact, as averred in the 'counter affidavit', Mubarak Ali Shah during his lifetime, remained un willing and/or found himself unable otherwise, to perform his 'own obligations' under the 'Compromise Decree'. Per Judgment-debtor's version, the Decree-holder, in fact, had opted to waive his rights accrued in his favour, under the 'Compromise Decree' dated 04.05.2009. Per Respondents' stand, Limitation period for filing of an Execution Application, as in the case in hand is, expired on 5.5.2012, whereas, Mubarak Ali Shah, the actual beneficiary of the 'Compromise Decree', passed away on 17.1.2014. Neither the said Decree-holder No.1, during his life, nor any of the other Decree-holders, within 3 years limit, as provided under Article 181 of the Limitation Act, 1908 [IX of 1908], filed any Execution Application for the enforcement of the 'Compromise Decree' dated 04.05.2009. According to Judgment-debtors' stand, the 'Compromise Decree' of 04.05.2009, upon the death of Decree-holder No.1, has become in-effective/frustrated. The same, as urged, cannot be 'revived' or 'otherwise', it can be enforced, under law, at this belated stage at the whims and fancies of the Petitioner herein, as the Execution Application No.32 of 2015, filed on 21.04.2015, for enforcement of the 'Compromise Decree', passed long ago on 04.05.2009, is hopelessly time barred.

20. No doubt, after 5 years 11 months and 17 days w.e.f. passing of the 'Compromise Decree' dated 04.05.2009, and after the death of Mubarak Ali Shah on 17.01.2014, the Petitioner herein, did file an Execution Application No.32 of 2015 on 21.04.2015, but the Petitioner herein, under the 'Compromise Decree' passed on 04.05.2009, has no rights or obligations, as per stand of Judgment-debtors. The said Execution Application No.32 of 2015, based on the 'Compromise Decree' passed in New Suit No.731 of 2003-Old Suit No.526 of 1984 [Amtur Rehman through her legal heirs i.e. [i]. Mubarak Ali Shah son of Kazim Ali Shah [ii]. Mrs. Shakira Haqqi widow of Syed Allauddin Haqqi and [iii] Mrs. Saeeda Salahuddin widow of Muhammad Salahuddin v. Flight Lt. [Retd.] Farouk Aziz Effendi and another], as being time barred, as urged by Judgment-debtor No.1, was rightly dismissed vide Order dated 03.02.2016 [Annexure 'I' to the MoP]. Later on, the Civil Revision Application No.23 of 2016, filed against Order dated 03.02.2016, was also dismissed by learned VIIth Additional District and Sessions Judge, Karachi [South] vide Order dated 07.09.2016 [Annexure 'J' to the MoP], as it was found devoid of any merits.

21. Flight Lt. [Retd.] Farouk Aziz Effendi [Judgment-debtor No.1], now passed away on 15.09.2017, through his 'counter affidavit' has specifically denied the Petitioner's claim of 'possession' in respect of the 'subject property'. Per Respondent No.1-Judgment-debtor's stand, the Petitioner never remained in possession of the 'subject property', as she resided in the States. The 'subject property', however, remained in sole 'possession' of [late] Mubarak Ali Shah. According to Judgment-debtors' stand, upon the death of Mubarak Ali Shah, the Petitioner's son and attorney, illegally and with a show of force, occupied the 'subject property'. In terms of 'Compromise Decree' passed on 04.05.2009, if any right[s] was/were accrued, it, was only in favour of the Petitioner's deceased brother viz. Mubarak Ali Shah son of Kazim Ali Shah and no one else i.e. other Decree-holders. Per Respondents Nos.1 [i] to [iii] stand, neither the Petitioner lady, nor the Petitioner's son in no manner can claim any right over and in respect of the 'suit property'. As far as, Respondent No.2 [DHA], is concerned, no doubt, DHA, was directed to execute the 'B-Lease' in favour of Respondent No. 1/Judgment-debtor No.1 viz. Flight Lt. [Retd] Farouk Aziz Effendi, as per 'Compromise Decree', it was the sole obligation on the part of Respondent No.1 herein, [Judgment-debtor No.1]. The Respondent No.1 [Judgment-debtor No.1], however, has failed and/or avoided to perform/discharge its' said obligation under the 'Compromise Decree' of 04.05.2009. Like-wise, the deceased Mubarak Ali Shah, during his lifetime either failed and/or avoided to file any execution application for the enforcement of the 'Compromise Decree' passed on 04.05.2009, perhaps, as urged by Judgment-debtors, either he was un-willing and/or otherwise, remained unable to perform his legal obligations under the 'Compromise Decree'. The deceased Mubarak Ali Shah, according to Respondents' Nos.1[i] to [iii] stand, thus could not press or ask for the enforcement of the 'Compromise Decree' dated 04.05.2009, as the rights, if any, accrued under the 'Compromise Decree' dated 04.05.2009, was/were in favour of deceased Mubarak Ali Shah son of Kazim Ali Shah, and the same, in view of non-filing of the Execution Application, within a period of 3 years limit, be deemed and treated as waived/extinguished.

22. According to Judgment-debtors' stand, neither Mubarak Ali Shah son of Kazim Ali Shah, nor any one else, at any stage, and in any manner, raised the issue of non-execution of 'B-Lease' in favour of Judgment-debtor No.

1. Moreover, the Petitioner [or any one else], had never asked for any payments to DHA [Respondent No.2 herein], relating to the 'subject property'. Moreover, the Petitioner, under the said 'Compromise Decree' of 04.05.2009 has no right either to claim or discharge any obligation whatsoever. Any alleged payment, if made, [fraudulently and surreptitiously], by the Petitioner herein, or else one, after passing of the 'Compromise Decree' on 04.05.2009, has no relevance. Payment, if any, made beyond the 3 years' limit providing for filing of Execution Application, is of no legal effect. The signing of 'Authority Letter', as claimed by Decree-holder[s], has also been denied by Judgment-debtor No.1. The said 'Authority Letter', as urged, even otherwise, does not authorize the Petitioner to deposit any payment for Execution of 'B' Lease in favour of Judgment-debtor No.

1. Moreover, it does allow the Petitioner in any manner to step into the shoes of the deceased, Mubarak Ali Shah son of Kazim Ali Shah or otherwise, permits her to file/pursue a time barred Execution Application. The rights accrued under the 'Compromise Decree' cannot be revived once the Execution Application is found 'time barred'. Per Respondent No.1's stand, the Execution Application No.32 of 2015 [Mst. Amtur Rehman Begum [since deceased], through her legal heir Mrs. Saeeda Salahuddin widow of Muhammad Salahuddin [Decree-holder No.3] v. Flight Lt. [Retd.] Farouk Aziz Effendi and another], filed on 21.04.2015, is after a delay of 5 years, 11 months and 17 days, as such, the same is hopelessly time barred. Evidently, the Execution Application, was filed beyond the maximum limit of three [3] years, as prescribed under Article 181 of the Limitation Act, 1908 [IX of 1908], therefore, the same was rightly dismissed by the courts below concurrently.

23. Since, the Petitioner herein, in terms of the 'Compromise Decree' dated 04.05.2009, does not have any claim over and in respect of the 'subject property', therefore, creating of problems by the Decree-holders in the way of Judgment-debtors is nothing but an attempt to deprive the Judgment-debtors/Respondents Nos.1[i] to [iii] of their lawfully 'owned property'. As far as, Suit No.924 of 2015, is concerned, indeed, it was filed by Judgment-debtor No.1, because the Petitioner herein, through her son and purported attorney had forcibly occupied the 'subject property' i.e. after the death of Decree-holder No.1 viz. Mubarak Ali Shah son of Kazim Ali Shah. Moreover, the Petitioner lady, had also opted to file an Execution Application No.32 of 2015, for the enforcement of the 'Compromise Decree' dated 4.5.2009. The Judgment-debtors, besides, had then genuinely apprehended usurpation of their lawfully owned property by the Petitioner lady and her son, as such, Suit No.924 of 2015 was filed. Later-on, upon the rejection of the Execution Application No.32 of 2015, on 3.2.2015, the afore-said Suit No.924 of 2015 [Flight Lt. (Retd.) Farouk Aziz Effendi through his Attorney viz. Mr. Amir Aziz v. Mrs. Saeeda Salahuddin widow of Muhammad Salahuddin] was consequently, withdrawn un-conditionally on 22.02.2016. The Petitioner herein, even, otherwise, has/had no 'locus standi' to file any legal proceedings including the said Execution Application No.32 of 2015, as under the 'Compromise Decree' dated 04.05.2009, only the Decree-holder No.1 namely Mubarak Ali Shah [late] is/was the sole 'beneficiary' of the 'Compromise Decree' dated 04.05.2009.

24. The Petitioner herein in response, through her attorney did file an 'affidavit-in-rejoinder' to the 'counter affidavit' filed by Respondent No.1 viz. Flight Lt. [Retd] Farouk Aziz Effendi son of Muhammad Ikramullah [late] during his lifetime i.e. prior to his death on 15.09.2017, wherein, the stand taken/averments made contrary to Petitioner's stand was/were vehemently controverted/denied. Apart from the above, Respondent No.2 [DHA] also filed its' reply in answer to the Memo of Petition wherein, it has been stated that; as per record of DHA/Respondent No.2, the 'subject property' i.e. Bungalow constructed on Plot No.6-B, Central Avenue, Phase-II, DHA, Karachi, stands in the name of Flight Lt. [Retd.] Farouk Aziz Effendi [now deceased]. Per DHA's reply, neither the Petitioner nor Respondent No.1, has ever opted to provide copy of the 'Compromise Decree' dated 4.05.2009 [Annexure 'A/4' to the MoP], to DHA, for acting thereon and/or to otherwise, implement the said 'Compromise Decree' of 04.05.2009, 'inter alia' viz-a-viz Registration of 'B' Lease and/or transfer thereof, subsequently, in favour of the Petitioner lady viz. Saeeda Salahuddin widow of Muhammad Salahuddin or in favour of someone else i.e. Decree-holder No.2.

25. On 12.02.2019, 26.02.2019 and 12.03.2019, when the above Constitution Petition No.D-5585 of 2016, came-up before us then, we heard Mr. Muhammad Masood Khan along with Mr. Munir Ahmed Rajpar, learned counsel for the Petitioner lady, Mr. Salahuddin Ahmed along with Mr. Salman Mirza and Mr. Amir Mansoob Qureshi, learned counsel for Respondents Nos.1 [i] to [iii] and Mr. Asif Rashid, learned counsel for Respondent No.2 [DHA] and also gone through the available record before us minutely with their valuable assistance.

26. Mr. Muhammad Masood Khan, learned counsel for the Petitioner vehemently contended that the 'impugned order' dated 07.09.2016 [Annexure 'J' to the MoP] whereby, the learned Additional District and Sessions Judge, Karachi [South] has upheld the 'impugned Order' dated 03.02.2016 [Annexure 'I' to the MoP], passed by learned Sr. Civil Judge, Karachi [South] in the Petitioner's Execution Application No.32 of 2015, arising out of New Suit No.731 of 2003 [Old No.526 of 1984], for enforcement of the Compromise Decree passed on 04.05.2009, is not only erroneous but the same also is legally incorrect. According to Mr. Muhammad Masood Khan, both the courts below, have badly failed to apply the correct law. Be that as it may, the same is nothing but a clear refusal of lawful and proper exercise of jurisdiction, vested in the courts below. The 'impugned Orders', as urged, are liable to be set aside. Per Petitioner's counsel since, the 'possession' of the 'subject property' all the time, remained with the Petitioner even, before passing of the 'Compromise Decree' dated 04.05.2009, as such, the Petitioner lady, under law, was not required to file any Execution Application for 'possession' of the 'subject property' within the time limit of three [3] years, as provided under Article 181 of the Limitation Act, 1908.

27. According to Mr. Muhammad Masood Khan, Respondent No.1 herein, as per 'Compromise Decree' dated 04.05.2009, was under absolute obligation to transfer the 'subject property' in favour of Mubarak Ali Shah son of Kazim Ali Shah [predecessor-in-interest of the Petitioner herein], through Respondent No.2 herein [DHA]. Per Mr. Muhammad Masood Khan, in view of this position, no any occasion or need was ever arisen for filing an Execution Application in favour of Decree-holder No.1 or his 'nominee', save on 21.04.2015, i.e. when, Respondent No.1 herein, refused to fulfill the remaining part of the 'Compromise Decree' i.e. for [i] execution of 'B Lease' in favour of Respondent No.1, [ii]. Execution and registration of 'Conveyance Deed' in favour of Decree-holder No.1 or his 'nominee' and [iii]. Transfer of the 'subject property' in favour of the Decree-holder No.1. Per Mr. Muhammad Masood Khan, this aspect of the matter, was never dealt with or otherwise, attended by the learned Revisional Court in its' Order dated 07.09.2016. Like-wise, it has not been dilated upon by the learned Executing Court, at the time of passing order dated 03.02.2016.

28. For and on account of the aforesaid reasons, as urged by Mr. Muhammad Masood Khan, learned Counsel for the Petitioner, both the orders 'impugned' herein, are liable to be set aside, as the essential questions/aspects of the matter, involved before the Executing Court and Revisional Court i.e. Respondents Nos.3 and 4 herein, were/was not dealt with properly. The refusal on the part of Respondent No.1 [Judgment-debtor No.1], to honour its' commitments pursuant to and in compliance with 'consent Decree' dated 04.05.2009, constrained the Petitioner herein, to file the Execution Application No.32 of 2015 on 21.04.2015. Significantly, since, the refusal has come into the knowledge of the Decree-holder in the year, 2016 that is to say, when, Respondent No.1 herein, filed a Civil Suit No.924 of 2015 [Flight Lt. (Retd) Farouk Aziz Effendi through his Attorney viz. Mr. Amir Aziz v. Mrs. Saeeda Salahuddin widow of Muhammad Salahuddin], for 'declaration', 'possession', 'mesne profit' and 'permanent injunction', on 29.05.2015, before this Court. The said Suit No.924 of 2015, nevertheless, was later-on withdrawn un-conditionally on 22.02.2016, by Respondent No.1 herein.

29. The Petitioner's case, as urged, by Mr. Muhammad Masood Khan, learned counsel for the Petitioner is/was fully covered by the provision of section 48 of C.P.C., as the 'possession' of the 'subject property' had been with the Decree-holder before passing of the 'Compromise Decree' on 04.05.2009 [Annexure 'A/4' to the MoP]. No doubt, the factum of 'possession' was in the knowledge of Respondent No.1 herein viz. Flight Lt. [Retd.] Farouk Aziz Effendi son of Ikramullah [late]. Moreover, the amount deposited in this Court has also been received by Respondent No.1 on 03.09.2009. This being the position, the major part of the 'Compromise Decree' i.e. execution of 'B' Lease, by Respondent No.2, in favour of Respondent No.1, was/is the absolute responsibility of the Respondent No.1 in terms of the 'Compromise Decree' dated 04.05.2009, which has not been fulfilled. As far as, the obligation to pay the agreed balance sale consideration of Rs.43,10,286/- is concerned, the same, no doubt, was/is to be paid by the Decree-holder but at the time of Registration of 'Conveyance Deed' of the 'subject property' by the Respondent No.1, in favour of the Decree-holder No.1 namely Mubarak Ali Shah son of Kazim Ali Shah [predecessor-in-interest of the Petitioner herein] or his 'nominee'.

30. Needless to say, time for payment of 'balance sale consideration' of Rs.43,10,286/- [Rupees Forty Three Lac Ten Thousand Two Hundred and Eighty Six only], as urged by Mr. Muhammad Masood, has never come, as Respondent No.1 herein, did not get the execution of 'B' Lease in his favour. Mr. Muhammad Masood Khan, next contended that, as and when, Respondent No.1 [Judgment-debtor No.1], asked for the payment of dues needed to be paid to Respondent No.2/Judgment-debtor No.2, the same was also paid by the Decree-holder[s] herein. Moreover, the Petitioner herein [Decree-holder], always remained ready and willing to deposit the 'balance sale consideration' of Rs.43,10,286/- [Rupees Forth Three Lac Ten Thousand Two Hundred and Eighty Six only], before this Court. Respondent No.1, it is needless to say, has already pocketed huge amount of Rs.56,89,714/- [Rupees Fifty Six Lac Eighty Nine Thousand Seven Hundred and Fourteen only], way back in the year, 2009. This factum 'inter alia' is quite evident from the 'Certificate' [Annexure 'B' to the MoP], issued by the Nazir of this Court on 03.09.2009.

31. Per Mr. Muhammad Masood Khan, both the ' impugned orders' dated 07.09.2016 and 03.02.2016 [Annexures 'I' and 'J' to the MoP], passed by Respondents Nos.4 and 3 herein, respectively, are not only 'erroneous' but also contrary to law. Both Respondents Nos.4 and 3, have badly failed either to examine and/or otherwise, properly apply the provisions of section 48, C.P.C, to the case in hand. Per Muhammad Masood Khan, Article 181 of the Limitation Act, 1908 [IX of 1908], which provides 3 years period w.e.f. passing of decree for filing of Execution Application is not applicable, as far as the Plaintiffs case which is of unique nature, is concerned. Per Mr. Muhammad Masood Khan since, the 'physical possession' of the 'suit property' is with Decree-holder[s], as per terms of 'Compromise Decree' which means that the 'Compromise Decree' of 04.05.2009, has been acted upon partly. This being the position, the Decree-holders were not required to file any Execution Application for 'possession' of the 'suit property'. Further, the filing of the Execution Application No.32 of 2015, on the refusal of Judgment-debtors, on 21.04.2015 for the enforcement of the remaining part of 'Compromise Decree' dated 04.05.2009, as urged by Mr. Muhammad Masood Khan, is not time barred. Both the 'impugned orders', per Mr. Muhammad Masood Khan, are not only erroneous but the same have been passed without any lawful authority. Both the 'impugned orders' need to be 'declared' as lawful and valid orders. Per Mr. Muhammad Masood Khan, it is an established principle of law that where, 'possession' of a property remains with the Decree-holder and the 'Decree' passed, in fact, has been partly acted upon, as the case in hand is, then, for execution of the remaining part of the decree 'inter alia' relating to transfer of any property etc., time is to run from the 'date of refusal' and not from the date of passing of a decree.

32. The Petitioner lady, in the case in hand, is a Decree-holder with 'possession' of the 'subject property' thus, as urged by Mr. Muhammad Masood Khan, learned counsel for the Petitioner, no occasion said to have been arisen in favour of the Petitioner lady, for filing of an Execution Application until it is specifically refused. In the present case, as per Mr. Muhammad Masood Khan, since, refusal viz-a-viz enforcement of 'Compromise Decree' dated 04.05.2009. has occurred, just two [2] months, prior to the filing of the Execution Application No.32 of 2015, i.e. on 21.04.2015. In view of this position, per Mr. Muhammad Masood Khan, the Execution Application No.32 of 2015, filed on 21.04.2015, in no way, stated to be barred by time, as has been held by the two courts below, vide 'impugned orders' dated 03.02.2016 and 07.09.2016. Lastly, learned counsel for the Petitioner [Decree-holder] vehemently, contended that both the 'impugned orders' [Annexures 'I' and 'J' to the MoP] since, are erroneous and patently illegal, as such are liable to be set aside by allowing the instant petition as prayed by this Court.

33. In support of his contention Mr. Muhammad Masood Khan, learned counsel for the Petitioner [Decree-holder], has placed reliance on the cases of [1] Mst. Hakim Bibi through L.Rs. v. Khushi Muhammad 2007 SCMR 983], [ii]. Anjum and 2 others v. Mst. Sufaidan and 3 others [PLD 1986 Lahore 103], [iii]. Muhammad Latif v. Bashir Ahmed and 7 others [2004 CLC 1824], [iv]. Rehm Ali through L.Rs. v. Anwar Begum and 4 others [2006 CLC 1824], [v]. Raja Kumar Sil v. Abul Hasnat Choudhury and another [PLD 1963 Dacca 197].

34. The relevant portions, as referred to by Mr. Muhammad Masood Khan, learned counsel for the Petitioner, in support of his contention are as follows:- i. 2007 SCMR 983: "

6. It is settled law that suit for specific performance is always suit for possession. In the present case as mentioned above the possession has already been with the petitioners since execution of agreement to sell since 1971, therefore, as mentioned above, petitioners do not require to file execution petition for possession of the property in question from the respondents. It is also a settled law that petitioners can file execution petition on the refusal of the respondents for the remaining part of the decree..." [Emphasis added]. ii. PLD 1989 Lahore 103: " ....it was observed that if a party in whose favour a decree for possession was passed went into possession without intervention of the Court, its possession would be ascribed to the decree. It is well-settled that if a party is in possession of the property, execution of the decree was not required at all and the decree though not executed yet was alive and effective qua the rights acknowledged by it. Limitation bars only the remedy and does not extinguish the right itself unless the case is covered by section 28 of Limitation Act, 1908. A person in possession of the property, has obviously no need to sue execution for possession thereof. Land-in dispute is comprised in numerous Khasra numbers. Of it, part is in possession of the plaintiff and the rest is shown to be in possession of other recorded co-owners..." [Emphasis added]. iii. 2004 CLC 1010: "...before the two Courts below because it will be decided by the Executing Court, before whom the execution petition, if any, ultimately comes, yet it is a settled phenomenon that rights conferred by the decree, not brought for execution, remain intact. In this manner, if the decree, dated 28-9-1989 declared respondents Nos. 1 to 7 owners of the land in dispute, their ownership will not extinct only due to non-execution of the said decree..." [Emphasis added]. iv. 2006 C L C 1824: " ....The judgment passed on 24-6-2000 in execution civil appeal indicates that the pre-emptor has deposited the decretal amount within time in accordance with the judgment of the Appellate Court. On such deposit, the decree-holder is vested with the title of the property. In case decree-holder is in possession he may not seek the execution of the decree and make an application before the Revenue functionaries for sanction of mutation of his name in place of the judgment-debtor..." [Emphasis added]. v. PLD 1963 Dacca 197 a. "... Where a decree or, if a decree has been passed jointly in favour of two or more persons, the interest of any decree holder in the decree is transferred by assignment in writing or by operation of law, the transferee may apply for execution of the decree to the Court which passed it; and the decree may be executed in the same manner and subject to the same conditions as if the application were made by such decree holder..." [Emphasis added]. b. "Suffice it to say that there is no warrant for confining transfers by operation of law to transfers by operation of statutory laws. When a Hindu or a Muhammadan dies intestate and his heirs succeed to his estate there is a transfer not by any statute but by the operation of their respective personal law. In order to constitute a transfer of property by operation of law, all that is necessary is that there must be a passing of one person's rights in property to another person by the force of some law, statutory or otherwise..." [Emphasis added].

35. In contra, Mr. Salahuddin Ahmed, learned counsel for Respondents 1 [i] to [iii], argued that though the Petitioner is one of the parties in New Suit No.731 of 2003 [Old Suit No.586 of 1984], but in terms of the 'Compromise Decree' of 04.05.2009, she, in fact, is not the actual 'beneficiary' thereof. The Execution Application No.32 of 2015, filed by the Petitioner herein on 21.04.2015, is without any 'locus standi', as according to Mr. Salahuddin Ahmed, learned counsel for Respondents No.l[i] to [iii], in terms of the 'Compromise Decree' dated 04.05.2009, the only 'beneficiary' thereof, is/was Decree-holder No.1 viz. Mubarak Ali Shah son of Kazim Ali Shah. Moreover, the instant C.P. No.D-5585 of 2016, filed by the Petitioner through her Attorney [son] on the basis of a Special Power of Attorney dated 11.05.2015, is also 'in-competent' in law. According to Mr. Salahuddin Ahmed, Mubarak Ali Shah son of Kazim Ali Shah [late], though is the real brother of the Petitioner, [who passed away on 17.01.2014, issueless] but the Petitioner herein is not the beneficiary of the 'Compromise Decree' dated 04.05.2009. Mr. Salahuddin Ahmed, next contended that at the time of passing of the 'Compromise Decree', it was Mubarak Ali Shah [Decree-holder No.1 who had acted, as a duly constituted Attorney of the Petitioner herein [Decree-holder No.3], as well as, Decree-holder No.2, regarding the 'settlement' of the dispute between the parties in terms of the 'Compromise Application' dated 04.05.2009 [Annexure 'A/2' to the MoP], on the basis whereof, the New Suit No.731 of 2003 [Old Suit No.526 of 1984], was 'stand decreed' vide Order dated 04.05.2009 [Annexure 'A/3' to the MoP]. Despite such position, the Petitioner herein, however, is not the actual Decree-holder/beneficiary of the 'Compromise Decree' passed on 04.05.2009 [Annexure 'G' to the MoP].

36. Mr. Salahuddin Ahmed, next contended that the transfer of Plot No.6-B, Central Avenue, Phase-II, Karachi, in terms of the 'Compromise Decree' dated 04.05.2009, was to be made in the name of Mubarak Ali Shah son of Kazim Ali Shah, or his 'nominee'. The said Mubarak Ali Shah. besides, being a real brother of the Petitioner [Decree-holder No.1] was/is the only male member of the family. Further, Mubarak All Shah son of Kazim All Shah, much before the filing of the Execution Application on 21.04.2018, has passed away on 17.01.2014, issueless. Nonetheless, the said Mubarak Ali Shah son of Kazim Ali Shah, as urged, by Mr. Salahuddin Ahmed, is/was the only competent person to file an Execution Application for enforcement of the 'Compromise Decree' dated 04.05.2009, but within the stipulated period of 03 years, as provided under Article 181 of the Limitation Act, 1908 [IX of 1908].

37. Mr. Salahuddin Ahmed, learned counsel for Respondents Nos.1[i] to [iii], while arguing the case, next contended that against the 'Compromise Decree', passed on 04.05.2009 in New Suit No.731 of 2003 [Old Suit No.526 of 1984], none of the Decree-holders had opted to file any Execution Application within the prescribed period of three [3] years, as provided under Article 181 of the Limitation Act, 1908 [IX of 1908]. Per Mr. Salahuddin Ahmed, 1st Execution Application, under law, was/is needed to be filed within the prescribed period of three [3] years, as provided, under Article 181 of the Limitation Act, 1908 [IX of 1908], whereas, the lst Execution Application No.32 of 2015, in the case in hand, has been filed on 21.04.2015 i.e. after Five [5] Years, Eleven [11] Months and Eighteen [18] Days from the date of passing of the 'Compromise Decree' dated 04.05.2009. The said Execution Application bearing No.32 of 2015, was thus found hopelessly time barred, as such, the same was rightly dismissed by two [2] courts below.

38. Mr. Salahuddin Ahmed, learned counsel for Respondents Nos.1[i] to [iii], next contended that the Execution Application No.32 of 2015 [Mst. Amtur Rehman Begum [since deceased], through her legal heir [the Petitioner herein] v. Flight Lt. [Retd.] Farouk Aziz Effendi and another], even otherwise, was liable to be dismissed, as Mrs. Saeed Salahuddin/Petitioner herein, was not a competent person to apply for Execution of the 'Compromise Decree' dated 04.05.2009, because as per para 'c' of the decree, Mubarak Ali Shah son of Kazim Ali [Decree-holder -Plaintiff No.1], was the only 'beneficiary' of the 'Compromise Decree' and thus he was the only competent person [Decree-holder No.1], to apply for Execution of the 'Compromise Decree' dated 04.05.2009, but only upon the payment of Rs.43,10,286/- [Rupees Forty Three Lac Ten Thousand Two Hundred and Eighty Six only] to the Judgment-debtor No.1 viz. Flight Lt. [Retd.] Farouk Aziz Effendi son of Ikramullah [late] but, that too, within a period of three [3] years of passing of the decree. The said Decree-holder No]. however, did not come forward during his lifetime to file any Execution Application, for enforcement of the 'Compromise Decree' within three [3] years period of limitation from 04.05.2009 to 03.05.2012.

39. Per record, Mubarak Ali Shah/Decree-holder No.1, has passed away on 17.01.2014 i.e. after One [1] Year Eight [8] Months and Fourteen [14] Days from the date of expiry of the prescribed period of Limitation i.e. three [3] years. From the conduct of deceased, Mubarak Ali Shah son of Kazim Ali Shah, thus it reflects that he had not only 'waived', 'relinquished' but also 'abandoned' his right viz-a-viz enforcing the 'Compromise Decree' dated 04.05.2009, otherwise, he amongst other Decree-holders including the Petitioner herein, must have opted for filing of the Execution Application within the prescribed period of three [3] years of Limitation. Since, Mubarak Ali Shah son of Kazim Ali Shah, per Mr. Salahuddin Ahmed's stand, is the only 'beneficiary' of the 'Compromise Decree' but he did not file any Execution Application during his lifetime within the prescribed period of three [3] years, as such, upon his death on 17.01.2014, the present Petitioner viz. Mrs. Saeeda widow of Muhammad Salahuddin, is not a competent person, under law, to file Execution Application No.32 of 2015 [Mst. Amtur Rehman Begum [since deceased], through her legal heirs [the Petitioner herein] v. Flight Lt. [Retd.] Farouk Aziz Effendi and another], for the enforcement of the 'Compromise Decree' of 04.05.2009, which, as urged by Mr.Salahuddin Ahmed, she is/was not a 'beneficiary' of the 'Compromise Decree'. Per Mr. Salauddin Ahmed, the actual 'Decree-holder' and 'beneficiary' of the 'Compromise Decree' dated 04.05.2009 was [late] Mubarak Ali Shah son of Kazim Ali Shah and no one else.

40. Per Mr. Salahuddin Ahmed, the Petitioner herein apart from having no 'locus standi' to seek the enforcement of 'Compromise Decree' of 04.05.2009, was/is also in-competent to file either the 'Civil Revision Application' No.23 of 2015 and/or the instant Constitution Petition bearing No.D-5585 of 2016, under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 [Saeeda Salahuddin through her Attorney viz. Muneeb Saleh Shah son of Muhammad Salahuddin v. Flight Lt. [Retd.] Farouk Aziz Effendi through his LRs Nos.l[i] to [iii], against the 'impugned orders' passed by the Courts below because, according to Mr. Salahuddin Ahmed, it was only Mubarak Ali Shah son of Kazim Ali Shah [Plaintiff No.1/Decree-holder No.1], who, under the facts and circumstances of the case, was the only competent person to file Execution proceedings for the enforcement of the 'Compromise Decree' dated 04.05.2009 but, that too, within time limit of 3 years w.e.f. 04.05.2009, as provided under Article 181 of the Limitation Act, 1908 [IX of 1908]. The said Plaintiff No.1/Decree-holder No.1, however, during his lifetime did not file any Execution Application and he thus got the Execution proceedings barred by time. The said Mubarak Ali Shah son of Kazim Ali Shah thus not only waived but also relinquished his right of filing an execution Application for the enforcement of the 'Compromise Decree' dated 04.05.2009 though, Mubarak Ali Shah son of Kazim Ali Shah remained alive till 17.01.2014. The filing of the Execution Application on 21.04.2015, by the Petitioner herein, shows the ill-will/design of the Petitioner to grab/usurp the 'subject property' owned by the Judgment-debtor[s]/Respondents Nos. 1[i] to [iii] i.e. Plot No.6-B, Central Avenue, Phase-II, Pakistan Defence Housing Authority [DHA], Karachi, measuring 1,200 sq. yds.

41. Mr. Salahuddin Ahmed, learned counsel for Respondents No.1[i] to [iii] while, distinguishing the case laws cited by Mr. Muhammad Masood Khan in support of the Petitioner's case, placed reliance in support of the case of Respondents Nos.1 [i] to [iii], on the cases of [i]. National Bank of Pakistan v. Mian Aziz-ud-Din and 7 others [1996 SCMR 759], [ii] House Building Finance Corporation of Pakistan v. Muhammad Iqbal through L.Rs. [2007 SCMR 1929], [iii]. Mian Akber Hussain v. Mst. Aisha Bai and others [PLD 1996 SC 985] and [iv]. Bukhtiar Ahmed v. Mst. Shamim Akhtar and others [2013 SCMR 5].

42. The relevant portions relied upon and referred to by Mr. Salahuddin Ahmed learned counsel for Respondents No.1 [i] to [iii], therefrom, read as follows:- [i]. 1996 SCMR 759 "

3. It may be pointed out that before the Law Reforms Ordinance (XII of 1972) came into force, the question as to limitation for execution of a decree or order of a Civil Court was governed by Article 182 of the Limitation Act which provided for a period of three years for the same. An exception had however, been made in case of applications to which section 48 of the C.P.C. applied. Section 48 had originally provided for a period of twelve years within which a fresh application for execution of a decree could be filed but under the Law Reforms Ordinance, the said period of twelve years was substituted by six years and Article 182 was also deleted from the Limitation Act at the same time. The position which emerged after coming into force of the Law Reforms Ordinance was that, no specific provision existed in the Limitation Act which could govern the period of limitation for filing an application for execution of a decree of a Civil Court. But section 48, C.P.C., as amended by the Law Reforms Ordinance, continued to occupy the field. However, reference to Article 181 of the Limitation Act shows that a period of limitation of three years is provided by the said Article for applications for which no period of limitation has been provided elsewhere in the said Act or by section 48 of the Code of Civil Procedure, 1908. It, therefore, follows that the question as to limitation for execution of decree of a Civil Court could only be governed under Article 181 of the Limitation Act in cases where section 48, C.P.C. does not apply. But in cases where section 48, C.P.C. applied, the question would be governed by the said section." [Emphasis is added]

4. In some of the Indian decisions the expression "fresh application" has been so construed to mean application for execution after the disposal of the first execution application. See Yadorao Wasudeorao Pathak v. Govindrao Ramji Pant AIR 1939 Nag. 245, Lekshmi Amma Kochukutty Amma and another v. Raman Pillai Kumara Pillai and others AIR 1952 Travancore-Cochin 268 and Venlappa and others v. Lakshmikant Rao AIR 1956 Hyd. 7. "[Emphasis is added] It was consequently held that the first application for execution of a decree would be governed by residuary Article 181 of the Limitation Act and rest of the applications made, thereafter, would be governed by the six years period of limitation prescribed by section 48, C.P.C. As would appear from the above observations, the expression "fresh application" occurring in section 48, C.P.C. was also interpreted as not including the first execution application but any subsequent application, after the first application, that was presented before the Court. It, therefore, clearly follows that if no application for execution of a decree was made within the period of three years prescribed by Article 181, any application made thereafter, would be barred under the said Article and no benefit under section 48, C.P.C. can be availed by the applicant in such a case. It is only after the first application is made within the period prescribed by Article 181 of the Limitation Act, that subsequent applications can be filed within the period provided by section 48, C.P.C. Consequently, the view taken by the High Court and the Special Court that the execution application filed by the petitioners beyond the period of three years was time-barred, is not open to exception." (Emphasis is added) [ii]. 2007 SCMR 1929 "

3. We have heard the learned counsel for the petitioner at some length and have also perused the available record. We find that the controversy involved in the present case has already been set at rest by this Court in the case of Mahboob Khan v. Hassan Khan Durrani PLD 1990 SC 778, wherein it was held that for making first application for execution of a decree a period of three years was provided in terms of Article 181 of the Limitation Act and that the provisions of section 48, C.P.C. could be availed only in the-case of fresh application, once the first application had been disposed of. In our view, the impugned order of the High Court is in conformity with the law laid down by this Court to which no exception can be taken." [Emphasis is added]. [iii]. PLD 1996 SC 985 "It is to be noted that execution application was filed in the year 1970 and the learned Single Judge dismissed it on 18-1-1972, before the promulgation of Law Reforms Ordinance, 1972. Therefore the law prevailing before the amendment made by Law Reforms Ordinance, 1972 was to be applied. According to Mr. Kunwar Mukhtar Ahmed learned Advocate Article 182 which has been deleted by the Law Reforms Ordinance, 1972 will apply to the execution application. On the other hand Mr. Ali Akbar learned Advocate-on-Record for the respondents contended that the judgment of the Supreme Court in the Province of Sindh v. Haji Abdul Razzaq has taken into consideration sections 4, 5 and 8 of the Court Fees Act without any reference to section 48, C.P.C. and Articles 181, 182 and 183 of the Limitation Act. As is obvious from the judgment quoted above while entertaining and trying Civil Suits the High Court of Sindh is exercising 'District Court jurisdiction in contradistinction to the ordinary original civil jurisdiction of the High Court. Article 183 provides a period of limitation of six years for enforcing a judgment, decree or order from any High Court in the exercise of its 'ordinary original civil jurisdiction. Therefore it is the nature of jurisdiction exercised by the High Court of Sindh which will determine the applicability of the Articles. In the light of the judgment of the Court quoted above Article 183 cannot be applied. Therefore either Article 181 or 182 will be applicable. In both the cases the period of limitation is three years. It is not the case of the respondents that the right to enforce the decree arises from a date other than the date of decree. Therefore the execution application should have been filed within a period of three years from the date of judgment/decree." [Emphasis is added] [iv]. 2013 SCMR 5 "5. ...In view of the rule laid in the cases noted above, first application for execution of a decree can be filed within three years under Article 181 of the Limitation Act. The decree in this case was admittedly passed on 17-3-2003 while no application for execution was moved within three years. The application, out of which the present civil petition has arisen, was the first application, which could be filed within three years. The contention of the counsel for the petitioner that the execution application is governed by section 48, C.P.C. is not correct. As held in the case of Mahboob Khan (supra), the result of the change brought out by the Law Reforms Ordinance is that the only effect of section 48, C.P.C. would be to provide a period of limitation for subsequent execution applications after the first one and that if no application at all is made within the period prescribed by the Limitation Act, the execution application made thereafter would be barred by limitation and as such there would be no occasion to avail of the benefits of the extended time provided by section 48, C.P.C. The result of the above decision is that the first application for execution must be made within the period prescribed by the Limitation Act and that section 48, C.P.C. would apply only to any subsequent application for execution. In the circumstances, section 48 of C.P.C. has no applicability to the facts of the present case." [Emphasis is added] "

9. So far the question that the decree of the court of first instance is merged into the decree of Appellate Court which alone can be executed, it may be stated that in the case in hand the decree was passed by the High Court being appellate/revisional Court, therefore, the time would run from the date of passing of decree by the said Court. In the instant case the right was accrued in favour of the petitioner when the decree was passed by the High Court on 17-3-2003. There being no, statutory remedy of appeal or revision available against said decree and the only remedy available was filing a petition for leave to appeal before this Court, which is a constitutional court, therefore, unless the operation of the impugned decree is suspended or the petition is converted in to an appeal the petitioner cannot presume that the period of limitation has been clogged. Mere filing of petition before this court would not automatically enlarge the time of filing the execution application. Needless to mention here that in case relief is granted by this Court after allowing the appeal with leave of the Court then in the said eventuality the order of this Court would merge into order of the lower farums as such the period of limitation would start from the order of this Court." [Emphasis is added]

43. Mr. Salahuddin Ahmed, learned counsel for Respondents Nos.1[i] to [iii] while, concluding his arguments strenuously prayed for dismissal of the instant petition which, as urged, by Mr. Salahuddin Ahmed, is not only in-competent in law but also devoid of any merits. The same, as such. is liable to be dismissed with cost.

44. Mr. Asif Rasheed, learned counsel while, arguing the case on behalf of Respondent No.2 [DHA], submitted that as per DHA' s record, the 'subject property' i.e. Bungalow constructed on Plot No.6-B, Central Avenue, Phase-II, Pakistan Defence Housing Authority [DHA], Karachi. measuring 1,200 sq.yds, is standing in the name of deceased Respondent No.1 [Judgment-debtor No.1] viz. [late] Flight Lt. [Retd.] Farouk Aziz Effendi son of Ikramullah [late]. Per DHA's stand, neither Decree-holders including the Petitioner lady [who is Plaintiff No.3/Decree-holder No.3 in New Suit No.731 of 2003-Old Suit No.526 of 1984], nor Respondent No.1 herein, [Judgment-debtor No.1] viz. late Flight Lt. [Retd.] Farouk Aziz Effendi [who passed away on 05.10.2017], has ever approached by submitting the 'Compromise Decree' dated 04.05.2009, for implementation i.e. [i]. for 'registration' of 'B' Lease in favour of Respondent No.1 [Defendant No.1/Judgment-debtor No.1] and [ii]. Subsequently for transfer of the 'subject property' in favour of Decree-holders on the basis of a 'Compromise Decree' dated 04.05.2009.

45. Mr. Asif Rasheed, learned counsel for Respondent No.2 [DHA] further contended that 'ex-facie' both the Decree-holders and the Judgment-debtors, have either failed to act upon 'Compromise Decree' dated 04.05.2009 and/or otherwise, they have avoided to comply with the 'terms' and 'conditions' of the 'Compromise Decree' in its' 'letter and spirit'. The Execution Application No.32 of 2015 [Old Suit No.526 of 1984], filed on 21.04.2015, by the Petitioner lady herein for enforcement of the 'Compromise Decree' passed in New Suit No.731 of 2003, by IInd Senior Civil Judge, Karachi [South], on 04.05.2009, per Mr. Asif Rashid, was rightly dismissed by the two courts below. The Respondent No.2 [DHA], under law, nevertheless, is legally bound to abide by any order[s] passed by this Court in the Constitution Petition No.D-5585 of 2016, in its' 'letter' and 'spirit' whatsoever.

46. Heard arguments and perused the record.

47. Before proceeding further, it is significant to mention herein that upon the death of Respondent No.1 [Defendant No.1 /Judgment-debtor No.1], on 15.09.2017 i.e. during pendency of the instant Constitution Petition No.D-5585 of 2016, and on filing of a proper Application under Order XXII, Rule 4, C.P.C. [C.M.A. No.30864 of 2017], the 'legal heirs' of deceased Respondent No.1 [Judgment-debtor No.1] viz. Flight Lt. [Retd.] Farouk Aziz Effendi son of Ikramullah [late], were brought on record, by way of filing an 'Amended Title' on 03.01.2018, in compliance with order dated 10.11.2017. For ready reference, order dated 10.11.2017, is reproduced herein-below:- "10/11/2017: Messrs Muhammad Masood Khan and Amna Usmani, Advocates for the Petitioner. Messrs Salahuddin Ahmed and Muhammad Rizwan, Advocates for Respondent No.1 None present for Respondent No.2

1. This application (M.A. No. 30864 of 2017) has been filed by the learned counsel for Respondent No.1 under Order XXII, Rule 4, C.P.C. for bringing on record the L.Rs. of Respondent No.1. A copy of the said application has been given to the learned counsel for the petitioner, who waives notice and has no objection for grant of the same. The application is allowed and counsel for the petitioner is directed to file amended title within seven days. 2 to

5. Adjourned to a date in office. Interim order passed earlier to continue till the next date of hearing."

48. Further, at this juncture, we would also like to reproduce herein, the 'terms' and 'conditions' of the 'Compromise Decree' dated 04.05.2009, which read as follows: "a] That the Defendant No.1 has agreed to transfer plot No.6-B, Central Avenue, Phase-II, Pakistan Defence Officers' Housing Authority [DHA] Karachi measuring 1,200 sq. yards or thereabout along with construction thereon, hereinafter referred to as 'Subject property' in favour of plaintiff No.1 namely Mubarak Ali Shah or his nominee by fulfilling the part of contract by the defendant No.

1. The transfer of the subject property will be made by defendant No.1 as required by the plaintiff No.1 and the DHA in accordance with the procedure and formalities prescribed by DHA for such purpose. b] That 'A' Lease of the subject property has already been issued by DHA. However, 'B' Lease has not been executed so far. The Defendant No.1 undertakes to get the 'B' Lease executed and registered in his name upon compliance of all requisite formalities as required by DHA or any other Department/Authority. c] That after getting the 'B' Lease executed and registered in his name the defendant No.1 shall fully cooperate with the plaintiff No.1 for the purpose of registering the conveyance deed and for the transfer of the subject property by the DHA. For such purposes the defendant No.1 undertakes to sign, execute all and every document as required and to appear in person in the DHA and before concerned Sub-Registrar, for signing and executing any transfer documents, affidavits etc. as and when required for the transfer of subject property in favour of plaintiff No.1 or his nominee. d] That the stamp duty, registration charges of the conveyance deed/transfer documents and the transfer fees of the DHA as prescribed for transfer of the subject property in the name of the plaintiff No.1 will be paid by the plaintiff No.1. e] That in turn the plaintiff No.1 has agreed to pay a sum of Rs.100,000,00/- [Rupees One Crore only] as full and final settlement/ price of the subject property to the defendant No.1 in the manner that the amount towards sale proceeds lying with the Nazir of Hon'ble High Court of Sindh at Karachi in the above suit amounting to Rs.56,89,714/- [Rupees fifty six lacs eighty nine thousand seven hundred fourteen only] as on 2nd April 2009 shall be adjusted in the aforesaid price and after such adjournment the plaintiff No.1 shall pay to the defendant No.1 the remaining amount of Rs.43,10,286/- [Rupees fourty three lacs ten thousand two hundred eighty six only] at the time of registration of the Conveyance Deed of the subject property by defendant No.1 in favour of the plaintiff No.1 [Mubarak Ali Shah] or his nominee. f] That the plaintiff state their no objection to the withdrawal of the aforesaid amount inclusive/along with the interest lying with the Nazir of Hon'ble Court High Court of Sindh at Karachi. by the defendant No.1 after signing of this agreement. g] That in case after this compromise and orders passed thereon by this Hon'ble Court the defendant No.1 fails to appear, sign, execute the requisite documents and fails to appear before DHA and Sub-Registrar for execution and registration of 'B' Lease and thereafter for registration of Conveyance Deed before Sub-Registrar and then in DHA for transfer of the subject property in favour of plaintiff No.1 or his nominee, the Nazir of this Hon'ble Court shall appear, sign and execute all such required transfer documents/ deeds, 'B' lease and to appear before the Sub-Registrar and in DHA for the purpose of execution and registration of 'B' Lease and for registration of Conveyance Deed and for transfer of the subject property by DHA/Cantonment Board in favour of plaintiff No.1 or his nominee. h] That the subject property is already in possession of the plaintiffs. i] That the defendant No.1 shall immediately withdraw the ejectment proceedings namely Rent Case No.13/1982 filed against Plaintiff No.1 and others from the Court of Clifton Rent Controller, Clifton, Karachi. j] That henceforth the plaintiffs and defendant No.1 do not have any claim of whatsoever nature against each other subject to the aforesaid agreed terms whereby all claims against each other are settled by the parties in respect of the subject property. k] That the defendant No.2 [DNA] be directed by this Hon'ble Court to execute and get the 'B' Lease registered in the name of defendant No.1 at the first instance and thereafter transfer the subject property and issue the transfer documents in the name of plaintiff No.1 or his nominee."

49. To see, as to whether the Petitioner lady, has any 'locus standi' to file Execution Application No.32 of 2015, Civil Revision Application No.23 of 2016 and the instant Constitution Petition No.5585 of 2017 [Mrs. Saeeda Salahuddin widow of Muhammad Salahuddin v. Flight Ltd. [Retd.] Farouk Aziz Effendi son of [Late] Ikramullah], or the position remains otherwise. At this juncture, we would like to refer to and reproduce herein, the 'Preliminary Objections' raised on behalf of Respondents No.1 [i] to [iii], which read as follows:- . . . A. That the Petitioner has no locus standi to file the instant Petition as she is not an aggrieved party in terms of Article 199 of the Constitution of Pakistan. It is submitted that the Petitioner has filed the instant Petition ostensibly on the strength of Compromise Decree [Annex A-4 to the Petition] reached between her brother Mubarak Ali Shah son of Kazim Ali Shah and the Answering Respondent whereby the Plot No.6-B, Central Avenue, Phase II, Karachi ["Subject Property"] was to be transferred to the said Mubarak Ali Shah or his Nominee. As such, only Mubarak Ali Shah [who subsequently passed away on 17.1.2014] was competent to file an execution application to enforce the decree passed in his favour. B. Even otherwise, the instant Petition is not maintainable as the same has been filed by an unauthorized person namely, Moneeb Saleh Shah son of Muhammad Salahuddin who has not produced any power of attorney from the Petitioner and the instant Petition is to be dismissed on this count alone. C. That for reasons explained herein below it is submitted that the Petitioner and her purported Attorney have come to this Court with unclean hands and have filed the instant Petition to usurp the Subject Property.

50. Keeping in view the above 'preliminary objections', it is worth to note that the Petitioner herein, is one of the Plaintiffs/Decree-holders in New Suit No.731 of 2003 [Old Suit No.526 of 1984]. The 'Compromise Application' under Order XXIII, Rule 3, C.P.C. [Annexure 'A/2' to the MoP] was jointly filed by the legal heirs of Mst. Amtur Rehman Begum [late] i.e. [i]. Mubarak Ali Shah son of Kazim Ali Shah, [ii]. Mrs. Sakina Haqqi widow of Syed Allauddin Haqqi and [iii]. Mrs. Saeeda Salahuddin widow of Muhammad Salahuddin and Defendant No.1 viz. Flight Lt. [Retd.] Farouk Aziz, in New Suit No.731 of 2013, which was duly signed by Mubarak Ali Shah son of Kazim Ali Shah in his capacity, as one of the legal heirs of deceased Plaintiff viz. Amtur Rehman [Plaintiff No.1], for himself and as an attorney of two [2] other LRs i.e. [i] Mrs. Shakira Haqqi and Mrs. Saeeda Salahuddin, Judgment-debtor No.1 [Respondent No.1 herein]. From perusal of the 'Compromise Decree' dated 04.05.2009, it is crystal clear that the Petitioner herein, is a Decree-holder [Decree-holder No.3]. Further, upon the death of Decree-holder No.1 viz. Mubarak Ali Shah son of Kazim Ali Shah, who passed away on 17.01.2014 issueless, the Petitioner herein, besides, being a Decree-holder, became/stood a legal heir of both the deceased persons namely [1]. Amtur Rehman [original Plaintiff] and [ii]. Mubarak Ali Shah [Plaintiff No.1-Decree-holder No.1]. In the New Suit No.731 of 2003 [late] Amtur Rehman Begum widow of Syed Kazim Ali, has been shown, as a Plaintiff through her legal heirs [i]. Mubarak Ali Shah [ii]. Mrs. Shakira Haqqi and [iii] Ms. Saeeda Salahuddin. In answer to the question, as to who, is entitled to file an Execution Application for enforcement of the 'Compromise Decree', in the case in hand, we would like to refer to and reproduce herein, Order XXI, Rule 15, C.P.C., which reads as under:- "

15. Application for execution by joint decree holder. (1) Where a decree has been passed jointly in favour of more persons than one, any one or more of such persons may, unless the decree imposes any condition to the contrary, apply for the execution of the whole decree for the benefit of them all, or, where any of them has died, for the benefit of the survivors and the legal representatives of the deceased. (2) Where the Court sees sufficient cause for allowing the decree to be executed on an application made under this rule, it shall make such order as it deems necessary for protecting the interests of the persons who have not joined in the application." [Underlining is ours].

51. In view of the above, it can safely be said that Petitioner, as being a Decree Holder and one of the legal heirs of Amtur Rehman [Original Plaintiff in Old Suit No.526 of 1984] and Mubarak Ali Shah [Decree-holder No.1 in New Suit No.731 of 2003], under law, is not only competent to file the Execution Application No.32 of 2015 but as being an 'aggrieved person', has 'locus standi'/'competent' not only to file the instant Petition but also the Civil Revision Application No.23 of 2016 [Saeeda Salahuddin widow of Muhammad Salahuddin v. Flight Lt. Retd. Farouk Aziz Effendi and another].

52. As far as, the competency of the Petitioner's Attorney is concerned, in this regard, we would like to refer to 'Paras 2 and 6' of the Special Power of Attorney' which has been duly signed/executed by the Petitioner lady, in favour of her constituted Attorney [son] viz. Mr. Moneeb Salah Shah son of Muhammad Salahuddin and reproduce the same, as under:-

2. To represent me in all respect during the proceedings of any suit/execution and to give statement on my behalf before cantonment depart or the Court of law i.e. Supreme Court, High Court, District Court, and to file all necessary Applications, Affidavits, Counter Affidavit Objections, Counter Objections and documents etc, related in the above said manner.

6. To contest and defend suits, applications, cases and matters that may be filed are pending in the Courts has mentioned above, or against Mst. Shabana daughter of Muhammad Aslam, who was my previous wife. AND GENERALLY to act in relation to my said case as fully and effectually in all respects as myself could do and that whatever my said Attorney for the time being acting under or by virtue of these presents shall lawfully do or cause to be done, I the abovenamed executor do hereby agree to ratify/allow and confirm the same.

53. From the above, it is quite evident that the instant Constitution Petition has been competently filed by the Petitioner's lady through her duly constituted Attorney [son] namely Moneeb Salah Shah son of Muhammad Salahuddin. The 'preliminary objections' raised by Respondents, on the face of it, are not only frivolous but also mis conceived, thus the same are repelled. Moreover, the Petitioner lady, apart from being an 'aggrieved person', also has a 'cause of action' in her favour to file / initiate legal proceedings referred to herein-above. The 'cause of action' it is needless to say, is the bundle or totality of the essential facts which needed to be proved, prior to succeed. On the aforesaid aspect of the matter, reliance is placed on the case of Muhammad Tariq Mahmood and 2 others v. Anjuman Kashmiri Bradari Khisht Faroshan through President Abdul Ashfaq and 21 others [2003 CLD 335], wherefrom the relevant portion is as under:- "9. ...'Cause of action' has not been defined in the C.P.C. It is the bundle of facts, which have been alleged by the plaintiff in the plaint. It has been held in the case reported as National Development Finance Corporation v. Messrs Leepa Shoes Ltd., Mirpur 1992 MLD 474 that to ascertain cause of action only the facts stated in the plaint are to be construed to determine whether they constitute a cause of action". It means the whole of the material facts which it is necessary for the plaintiff to allege and prove in order to succeed. [Emphasis is added].

54. In the case in hand the 'Compromise Decree' was passed on 04.05.2009 but till 21.04.2015, no any 'execution application' was filed for enforcement of the 'compromise decree' [Annexure 'A/4' to the MoP]. The said 'Compromise Decree' passed on 04.05.2009, however, if creates a right/title in favour of the 'parties'/'Decree-holders' then, as urged, if, the Execution Application is found time barred then too such right/title remains intact. Limitation, it is needless to say, only bars the remedy or assistance of the Court and does not 'extinguish' the right or title, if, accrued under the decree. On this aspect of the matter, reliance has rightly been placed on the case of Mst. Hussain Bibi v. Siraj Din [PLD 1998 Lahore 548]. The relevant portion, therefrom, reads as follows:- "6. ... The proposition of law is well settled that the Limitation Act merely bars the remedy or assistance of Court for execution of the decree but does not extinguish the right or title based on the decree. In the Full Bench judgment of Allahabad High Court in the case of Ram Karan Singh and another, it was held that the Limitation Act did not necessarily extinguish the right, though it certainly placed a bar against the remedy by suit: that in certain cases it provided creation of rights by prescription and the corresponding extinction of rights (under section 28 of the Limitation Act). In the case of Bala Kushaba, it was held that where right to property had been established by a decree for possession the barring of the right of execution did not extinguish the right and only the remedy had become barred. In the case of Muhammad Fazal, it was held that where an application for execution of decree for possession had become barred by limitation, it did not ipso facto extinguish right and title of the applicant in respect of the property. In the case of Ideal Life Insurance Company Ltd., it was held:- "Rights and remedies are two different aspects of a case and if the remedy is barred the right is not automatically extinguished." [Emphasis added].

55. Mr. Muhammad Masood Khan, learned counsel for the Petitioner while, advancing his arguments on the point of Limitation also placed reliance on section 48, C.P.C., and submitted that the Petitioner's Execution Application No.32 of 2015, filed on 21.04.2015, in respect of 'Compromise Decree' dated 04.05.2009, is not time barred, as has been held by the Courts below. For ready reference, section 48, C.P.C., is reproduced herein-below:-

48. Execution barred in certain cases. (1) Where an application to execute a decree not being a decree granting an injunction has been made, no order for the execution of the same decree shall be made upon any fresh application presented after the expiration of 6 [six years] from (a) the date of the decree sought to be executed, or (b) where the decree or any subsequent order directs any payment of money or the delivery of any property to be made at a certain date or at recurring periods, the date of the default in making the payment or delivery in respect of which the applicant seeks to execute the decree. (2) Nothing in this section shall be deemed (a) to preclude the Court from ordering the execution of a decree upon an application presented after the expiration of the said term of [six years], where the judgment debtor has, by fraud or force, prevented the execution of the decree at some time within [six years] immediately before the date of the application ;or (b) to limit or otherwise affect the operation of Article [183 of the First Schedule to the Limitation Act, 1908 (IX of 1908)]. [Underlining is ours]

56. The reliance of Mr. Muhammad Masood Khan on section 48, C.P.C., in the case in hand, seems mis-conceived. It is significant to note that the Execution Application No.32 of 2015, filed on 21.04.2015, in respect of the 'Compromise Decree' dated 04.05.2009, is the 1st Execution Application and not a 'new'/'fresh' Execution Application. From perusal of section 48, C.P.C., it transpires that it provides an 'outer limit' of time and prohibits the passing of an order for execution of a decree on 'fresh application' if, the same, is presented after the expiration of six [6] years i.e. from the date of passing of decree. The word 'fresh' used in section 48, C.P.C., is of much significance. In the present case, the exe of 'Compromise Decree' dated 04.05.2009, has not been sought on the basis of a 'fresh application', which in terms of section 48, C.P.C., needs to be filed within Six [6] years, but on the basis of a 1st Execution Application, filed on 21.04.2015, viz-a -viz the enforcement of the 'Compromise Decree', passed long ago on 04.05.2009. For better understanding, in this regard, reliance can be placed on the case of Mahboob Khan v. Hassan Khan Durrani [PLD 1990 SC 778]. The relevant portion therefrom, reads as follows:- "...In order to see whether in the present case the limitation contained in section 48 is attracted or not it is necessary to determine whether execution was sought on a fresh application presented after the said period. The word 'fresh" has been defined in the Oxford English Dictionary, Volume IV, to mean, inter alia, "new, recent" or "newly made". It, therefore, appears that the application within the contemplation of the prohibition contained in section 48 was not the first execution application but any subsequent application, after such first application, which was presented beyond the prescribed period of six years. Construed in this light, and reading the two provisions together, it would appear that the effect of the amendment made by the Law Reforms Ordinance, 1972, is that the first application for the execution of the decree of a Civil Court would be governed by the residuary Article 181 prescribing a period of three years and since any subsequent or fresh application for execution would be governed by section 48, C.P.C., it would be out of the purview of Article 181 on its express terms. In some of the Indian decisions the expression 'fresh application" has been so construed to mean application for execution after the disposal of the first execution application. See Yadorao Wasudeorao Pathak v. Govindrao Ramji Pant AIR 1939 Nag. 245, Lekshmi Amma Kochukutty Amma and another v. Raman Pillai Kumara Pillai and others AIR 1952 Travancore-Cochin 268 and Venlappa and others v. Lakshmikant Rao AIR 1956 Hyd. 7. [Emphasis added]."

57. Also being relevant, at this juncture, we would like to refer to and reproduce herein-below Article 181 of the Limitation Act, 1908 [IX of 1908], which reads as follows:- Description of application Period of limitation Time from which period begins to run

181. Application for which no period of limitation is provided elsewhere in this schedule or by section 48 of the Code of Civil Procedure, 1908 Three years When the right to apply accrues.

58. In view of Article 181 of the Limitation Act, 1908 [IX of 1908], in the case in hand, right to apply for Execution has accrued in favour of the Decree-holder long ago when, the 'Compromise Decree' was passed i.e. on 04.05.2009 [Annexure 'A/4' to the MoP]. The Decree-holders, however, in their own wisdom did not file any Execution Application except the 1st Execution Application, filed on 21.04.2015, for the enforcement of the 'Compromise Decree', admittedly, passed on 04.05.2009 [Annexure 'A/4' to the MoP]. In view of this position, the said Execution Application is hopelessly time barred.

59. As far as, the 'determination' of questions, arising between the 'parties' or their 'representative' to a suit under a decree passed therein and relating to the 'execution', 'discharge' or 'satisfaction' of such decree, are concerned, the same, indeed, in terms of section 47, C.P.C., need to be determined by the Executing Court and not by a separate Suit. The provisions of section 47, C.P.C., it is needless to mention, makes 'no distinction' between a Decree-holder and Judgment Debtor when, the Executing Court exercises its' jurisdiction. Under law, there is no bar even, against a Judgment-debtor if, the Decree passed so permits to either file objection and/or initiate execution proceedings, otherwise. Reference, in this regard, can be made to the case of Industrial Development Bank of Pakistan through Vice-President IDBP v. Messrs Crystal Chemical Limited through Director/Guarantor Crystal Chemical Ltd. and 9 others [PLD 2009 Lahore 176]. The relevant portion therefrom, reads as follows:- . . . "28. ...Section 47, C.P.C. makes no distinction between a decree holder and a judgment debtor when it comes to the invocation of jurisdiction of the executing Court. Generally it is a decree holder who comes to the Court for execution of his decree against a judgment. debtor. However, there is no bar against a judgment debtor filing an objection petition and initiating execution proceedings. Reference in this regard may be made to Riaz Hussain v. Muhammad Akbar (2003 SCMR 181), where it was held that "Object of Legislature is to provide an opportunity to judgment-debtor to make an objection petition even if the decree holder withholds the execution petition and gets the decree satisfied through some other mode: A contrary view limits the scope of section 47, C.P.C. and thus militates against the object and intention of the legislature." Restriction on filing an objection petition under section 47, C.P.C. in the absence of an execution application would have placed the judgment debtors in the unenviable position of having no remedy and .forum for redressal of their grievance. Similarly in 'Erusappa Mudallar v. Commercial and Land Mortgage Bank Limited (1899 Madras Series Volume 23), it was held that "Court executing a decree includes proceedings initiated by decree holder and by judgment debtor. [Emphasis. added]

60. For proper appreciation, and as being relevant in above scenario, section 47, C.P.C., is also reproduced herein-below:- "

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 this 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." [Emphasis added] . . .

61. Manifestly, in terms of section 47, C.P.C., all questions between the parties to the suit, their representatives viz-a-viz 'execution', 'discharge' or 'satisfaction' of decree, if any, shall be dealt with and resolved if, the Execution Application in hand, is found as maintainable and not barred by Limitation. The contention of Mr. Salahuddin Ahmed viz-a-viz rights and obligations inter se the Decree-holders and Judgment-debtors and their representative is concerned, the same, in our view, seems 'pre-mature' and 'mis-conceived'.

62. Apart from the above, Mr. Muhammad Masood Khan, has also placed reliance on section 52 of the Contract Act, 1872 [IX of 1872]. For ready reference, section 52 of the Contract Act, 1872 [IX of 1872], is reproduced herein-below:- "

52. Order of performance of reciprocal promises. Where the order in which reciprocal promises are to be performed is expressly fixed by the contract, they shall be performed in that order; and, where the order is not expressly fixed by the contract, they shall be performed in that order which the nature of the transaction requires." Illustrations (a) A and B contract that A shall build a house for B at a fixed price. A's promise to build the house must be performed before B's promise to pay for it. (b) A and B contract that A shall make over his stock-in-trade to B at a fixed price, and B promises to give security for the payment of the money. A's promise need not be performed until the security is given, for the nature of the transaction requires that A should have security before he delivers up his stock. Liability of party preventing event on which the contract is to take effect."

63. The reliance of Mr. Muhammad Masood Khan, learned counsel for the Petitioner on the aforesaid section 52 of the Contract Act, 1872 [IX of 1872], is also mis-placed under the 'facts' and 'circumstances' of the case. In the present case, admittedly, a 'Compromise Decree' was passed on 04.05.2009 but till 21.04.2015 no any 'Execution Application' was filed by the Decree-holders for the enforcement of the 'Compromise Decree' though 'cause of action' had arisen in favour of the Decree-holders on 04.05.2009 i.e. when a 'Compromise Decree' was passed. It is significant to note, that once 'limitation' is started, then it cannot be stopped. The Decree-holders, in the case in hand, could have conveniently sought the prayers, which are now being sought through the 1st Execution Application No.32 of 2015, filed on 21.04.2015 for the enforcement of 'Compromise Decree' passed long ago on 04.05.2009. Under law, 1st Execution Application needs to be filed within a period of 3 years w.e.f. passing of the Decree as it is governed by the residuary Article 181 of the Limitation Act, 1908 [IX of 1908]. Moreover, in the case in hand, section 48, C.P.C., as urged by Mr. Muhammad Masood Khan, is not attracted, as it applies to a 'fresh'/'new' and 'recent' Execution Application and not the 1st Execution Application No.32 of 2015, as the case in hand is. In this regard reliance can be placed on the judgment of 5 members [larger bench] of Hon'ble Supreme Court of Pakistan, authored by Hon'ble Mr. Zaffar Hussain Mirza J., in the case of Mahboob Khan v. Hassan Khan Durrani [PLD 1990 SC 778], relevant observation/dictum laid-down by Hon'ble Supreme Court of Pakistan on the question of Limitation viz-a-viz 'time limit' for filing of an Execution Application, reads as follows:- "...the first application for execution of a decree would be governed by the residuary Article 181 and the rest of the applications made, thereafter, will be governed by the six years time limit prescribed by section

48. Although the original purpose underlying section 48, read along with Articles 181 and 182 of the Limitation Act, before the amendment of the law was to provide maximum limit of time for execution of a decree. But in the changed position as a result of Law Reforms Ordinance, the only effect of section 48 would be to provide limitation for subsequent execution applications after the first one. The result would be that if no application at all is made within the period prescribed by Article 181, the execution application made, thereafter, would be barred under the said Article and as such there would be no occasion to avail of the benefits of the extended time provided by section 48, C.P.C. In other words once an application for execution is made within time so prescribed, any number of applications for execution can be presented within the six years period from the date of decree. This construction, in my opinion is the only construction that can be placed on the consequent legal position arising out of the amendments made by the omission of Article 182 and substitution of six years period in section 48, C.P.C. Otherwise the provisions for repeated applications every three years or taking steps in aid of execution provided for in Article 182, having disappeared, section 48 would become redundant and ineffective. [Emphasis added]

64. As far as, the contention of Mr. Muhammad Masood Khan regarding mutation of the 'subject property' in favour of the Decree-holder[s] is concerned, no doubt, on the basis of a Decree, mutation in the name of a Decree-holder, can be effected even if, execution is barred by time. In this regard, reference can be made to the case of Ali Ahmad and another v. Muhammad Fazal and another [1972 SCMR 322]. The relevant portion therefrom, reads as follows:- "...that as the decree was not executed for six years, the Revenue authorities had no jurisdiction to sanction mutation and the Member. Board of Revenue and the other authorities were perfectly justified in refusing to do so. The contention of the learned counsel has not impressed us. A valid decree was passed in favour of respondent No. I. He became the owner of the property on payment of the purchase price on the 26th October 1960, and became vested with right, interest and title in the land from that date. He was entitled to get the mutation effected on the basis of tiled decree. Simply because it has barred by time, it has not lost its utility. In our opinion, the view of the High Court is correct that the Revenue authorities were under obligation to sanction mutation on the basis of the decree.... [Emphasis added].

65. In view of the above discussion, since, in the case in hand, the 1st Execution Application bearing No.32 of 2015 was made beyond the period of Limitation, prescribed under Article 181 of the Limitation Act, 1908 [IX of 1908], i.e. 3 years, as such, the conclusion drawn by both the learned courts below, are not open to any exception under Article 199 of the Constitution of Islamic Republic of Pakistan. 1973. Both the 'impugned orders' [Annexure 'I' and 'J' to the MoP] in our considered opinion, as well, are quite in accordance with law. This being the position, the concurrent findings of the two courts below, do not call for interference.

66. Consequently, the instant Petition stands dismissed along with the pending application[s]. ZC/S-106/Sindh Petition dismissed.