1983 PLP 1204 (CLC)

ABDUL MAJBBD MALIK, J.-This appeal, by leave, arises out of the order of the High Court dated 18th July, 1982 whereby the writ petition seeking quashment of the order of respondent No. 2 (Chief Conservator Forests) dated 21st April, 1982 was dismissed in limlne.

2. The chequered history of this case is that in 1963 appellant secured forest lease of 10-B Part and 12-Part of the Bandi Ashkot Range, falling within the area of District Muzaffarabad (Azad Kashmir). The agreement as alleged, was revoked unilaterally by the respondents and controversy was settled in an agreement dated 4th April, 1966 to refer the dispute to the Arbitrator. Consequently in the light of agreement Mirza Nazir Hussain, District and Sessions Judge, Mirpur, was appointed as Arbitrator. In terms of reference the Arbitrator was to calculate the exact quantity of timber the appellant was entitled to remove from the leased area.

3. The Arbitrator gave his award on 16th November, 1966 and the same, on 30th January, 1967 was filed in the High Court, to make it rule of the Court. It may be stated that the Arbitrator assessed the quantity of the timber in the light of the agreement between the parties and thereon allowed interest by 10% depreciation on the actual assessed quantity of the timber.

4. The respondents contested the award on various objections, raised under `sections 30 and 33 of the Arbitration Act, vide applications dated 9th March, 1967 and 9th May, 1967. During the pendency of proceedings in the High Court respondent No. 2 issued directions to Conservator of Forests, on 17th April, 1971 to stop the release of timber as the stipulated lease period had expired. This direction was challenged by the appellant in the High Court by seeking suspension of action through .ad interim injunction. The learned Single Judge of the High Court allowed the relief on 6th June, 1971 but on appeal the order was vacated by the Division Bench vide order dated 8th July, 1971. On this respondent No. 2 issued notice for the sale of timber through tenders on 15th November, 1971. The appellant again moved the High Court for stay of action of the respondent. On failure to get the relief on his application from the learned Single Judge of the High Court he preferred an appeal before the Division Bench where the action of the respondent, for selling the timber through tenders, was stopped till the completion of proceedings on the award in the High Court.

5. The learned Single Judge made the award rule of the Court on 20th March, 1976. By this order the learned Judge allowed the actual assessed quantity of the timber by the Arbitrator and modified the award by rejecting the claim based on 10% depreciation. The decree, allowed by the High Court in favour of the appellant, was challenged in appeal before the Division Bench. The appeal was dismissed, on merits, on 19th March, 1981. The respondents feeling aggrieved of the order of the High Court filed petition for leave to appeal in this Court, but the same was also dismissed on 16th November, 1982.

6. It is alleged that on defeat in the Courts the respondents made an attempt to undo the final pronouncements of superior judi ciary through legislation. But timely efforts of the appellant by bring ing the matter into the notice of the President of Pakistan the alleged attempt was frustrated.

7. The fresh action which necessitated the present cause is an order dated 21st April, 1982 whereby respondent No. 2 attempted to demolish the degree by repeating its old claim of 17th March, 1971 and declined to allow execution of the decree on the contention that lease period having been expired on 2nd January, 1970 appellant was disentitled to seek release of the decreed timber.

8. The appellant feeling aggrieved of the action of respondent No. 2 invoked the special jurisdiction of the High Court through writ and prayed for the quashment of the impugned order of respondent No. 2 on the grounds listed below :-- (i) that the claim of expiry of lease period on 2nd January, 19'.10 -as entered in the agreement, was a pre-decree matter. Failure of respondents to raise this objection in their applications under sections 30 and 33 of the Arbitration Act or subsequently before the High Court when the award was made rule of the Court or before the Division Bench of High Court in appeal and lastly in petition for leave to appeal before this Court deprived the respondents, in law to reagitate such a point. The executing Court was equally precluded to re-examine a settled matter ; (ii) that impugned order was hit by the principle of lease res judicta. (iii) that the respondents were estopped from raising the point after final adjudication ; and It is borne out of the judgment of the learned single Judge dated 6th June, 1971 and the judgment of the Division Bench dated 18th July, 1971 that respondent No. 2, vide order dated 17th April, 1971 directed the Con servator of Forests, Muzaffarabad, that the appellant, whose lease period has expired, should not be allowed to remove timber from Ashkot. Again on 2nd May, 1971 respondent No. 2 maintained that lease period having been expired the timber lying at and beyond Ashkot, in accord ance with the agreement of lease, has become the property of the Govern ment. The Conservator of Forests, Muzaffarabad was accordingly ordered to take over all such timber and get it listed as early as possible. An identical attitude is adopted in the order in question dated 21st April; 1982. The relevant part of the Order, conveyed to the appellant, is reproduced below :- "As you are aware that according to clause 5 of the original agree ment executed with you, the lease period was fixed for three years commencing from 23rd November, 1963. Due to certain distur bances in May, 1964 in the lease area, the Government had to stop your work for some time. Subsequently you were allowed to resume the work and extract timber from across the Cease-Fire Line in accordance with the award of the arbitration on 2nd January, 1967. Thereafter you availed the entire lease period of three years from 2nd January, 1967 to 2nd January, 1970 without any hitch or hindrance from our side. During this period you extracted/exported about 7.5 lac Cft. of timber. The removal of the balance quantity of timber, (as per award) could not be carri ed in time by you and this was due to your own fault. Therefore, according to clause 5 of the original lease agreement and keeping in view clauses 6 and 10 of the supplementary agreement executed on 4th April, 1966 timber left behind Ashkot has become the property of the Government."

10. The factual position reflected in the preceding paragraphs obviously suggests that respondent No. 2 was aware of termination of the lease period in 1971, when the award of the Arbitrator was yet to be made rule of the Court. Respondents did not controvert that they were not awareland conscious of the importance of the stipulated period of lease. But the fact remains that at no stage of the proceedings, when the award was sought to be made rule of the Court, objection relating to expiry of the period of lease was raised by the respondents. It is also evident from the judgment of the learned Single Judge dated 20th March, 1976 resulting in decree in favour of the appellant, that respondents filed two applica tions under sections 30 and 33 of the Arbitration Act and challenged the award on various grounds. The applications were devoid of the objection pertaining to the expiry of the lease period on 2nd January, 1970 as now claimed by the respondents.

11. The other factual aspect of the case, of course uncontroverted, is that on securing decree from the High Court the appellant promptly took execution proceedings in the High Court. On amendment in the procedural law the decree was sent to the Court of District Judge, for execution, in 1978: A copy of the proceedings of the executing Court disclosed that the executing Court is crawling at the initial stage as the application still awaits filing of objections by the judgment-debtor. The considerable delay of more than five years goes unexplained.

12. Maulvi Siraj-ul-Haq, the learned counsel for the respondents, supported the impugned judgment and contended that in presence of execution proceedings, appellant was. incompetent and ineligible to seek quashment of the order of respondent No. 2 by invoking special jurisdic tion of the High Court under section 44 of the Interim Constitution Act, 1974. In support of his view the learned counsel made reference to "Majeebullah Aijaz v. Director-General, Telephone and Telegraph Depart ment and 2 others" (P L D 1980 Quetta 58), "Ch. Ghulam Rasool v. Province of the Punjab" (P L D 1982 Lab. 264), "Raja Habib Ahmed Khan v. The Income-tax Officer" (1972 S C M R 556). "Muhammad Yousuf v. The Additional Deputy Commissioner (Collector), Peshawar and others" (1972 S C M R 613), "Sheikh Amirud-Din v. Claims Commissioner, Pakistan, Lahore and others" (P L D 1968 S C 165), "Mukhtar All and others v. Settlement Commissioner (Lands), Sargodha and others" (1975 S C M R 489) and "Rashid Ahmed v. Soofi Muhammad and another" (P L D 1976 Lah. 1450). The aforesaid authorities, on perusal, are not found apt to the case in hand. Their detailed discussion is therefore, not considered necessary.

13. In presence of the uncontroverted state of facts next we proceed to examine the scope of jurisdiction of the High Court as conferred on it under section 44 of the Interim Constitution Act, 1974 (hereinafter referred as the Act). The relevant part of the section applicable to the case, as suggested by the learned counsel for the appellant, is sub clause (2) (a) of the section. The same is reproduced below :- (a) on the application of any aggrieved party, make an order- (i) directing a person performing functions in connection with the affairs of Azad Jammu and Kashmir or a local authority to refrain from doing that which he is not permitted by law to do, or to do that which he is required by law to do ; or (ii) declaring that any act done or proceedings taken by a person performing functions in connection with the affairs of the State or a local authority has been done or taken without lawful authority, and is of no legal effect; Under this section the special jurisdiction conferred on High Court is available to be invoked by an aggrieved party to seek its redress provided the High Court was satisfied that there was no other adequate: remedy, under law, to redress the grievance. The sphere of special jurisdiction of High Court in the matters enumerated under the section is controlled by presence of adequate remedy under law. Therefore, in order to ascertain the true boundaries or limits of jurisdiction of the High Court, under the section, it is imperative to deliberate over the scope of meaning of the words "adequate remedy" provided under law. The word "adequate", as defined in dictionary, means sufficient : competent, made equal.

14. The definition of word "adequate" received attention of Full Bench of Lahore High Court in "Mahboob Ali Malik v. (1) The Province of West Pakistan and (2) The Lahore Municipal Corporation" (P L D 1963 (W.E.) Lab. 575). Mr. Justice Manzoor Qadir, Chief Justice (as he then was), made a comprehensive analysis of the scope of meaning of the word "adequate" in relation to its relevancy to other legal remedy in reply to a reference made to the Full Bench. The relevant part of the finding is reproduced as under :- "The correct position, therefore, seems to be-the adequacy of an alternative remedy is to be judged in relation to the requisites relief. (i) If the relief available through the alternative remedy, in its nature or extent is not what is necessary to give the requisite relief, the alternative remedy is not an "other adequate remedy" within the meaning of Article.98. (ii) If the relief available through the alternative remedy, in its nature and extent, is what is necessary to give the requisite relief, the adequacy' of the alternative remedy must further be judged, with reference to a comparison of the speed, expense or convenience of obtaining that relief through the alternative remedy, with the speed, expense or convenience of obtaining it under Article

98. But in making this comparison those factors must not be taken into account which would themselves alter if the remedy under Article 98 were used as a substitute for the other remedy. (iii) In practice the following steps may be taken (a) Formulate the grievance in the given case, as a generalised category ; (b) Formulate the relief that is necessary to redress that category of grievance ; (c) See if the law has prescribed any remedy that can redress that category of grievance in that way and to the required extent ; (d) If such a remedy is prescribed, the law contemplates that resort must be had to that remedy ; (e) If it appears that the machinery established for the purposes of that remedy is not functioning properly, the correct step to take will be a step that is calculated to ensure, as far as lies in the power of the Court, that, that machinery begins to function as it should. It would not be correct to take over the function of that machinery. If the function of another organ is taken over, that other organ will atrophy, and the organ that takes over, will breakdown under the strain. (f) If there is no other remedy that can redress that category of grievance, in that way and to the required extent, or if there is such a remedy but conditions attached to it which for a particular category of cases, would neutralise or defeat it so as to deprive it of its substance, the Court should give the requisite relief under Article 98 ; . (g) If there is such other remedy, but there is something so special in the circumstances of a given case that the other remedy while generally adequate, to the relief required for that category of grievance, is not adequate to the relief that is essential in the very special category to which that case belongs, the Courts should give the required relief under Article

98. In the words of an eminent author. "there would be something in the nature of the act or proceeding that makes it apparent to the superior Court that it will not be able to protect the rights of the litigants or afford them adequate redress otherwise than through. the exercise of the extraordinary juris diction." (The "Law of Extraordinary Legal Remedies" by Ferris)."

15. A Division -Bench of Lahore High Court made its deliberation in "Muhammad Ashraf v. Board of Revenue, West Pakistan and another" (P L D 1968 Lah. 17) and upheld the view expressed in Mahboob All's case P L D 1963 (W.P.) Lah. 575 and reached an identical conclusion. The relevant part of the observation is reproduced below ;-- Where in a writ petition objection to its maintainability is raised on the ground that the petitioner had another adequate remedy open to him by way of suit it should be borne in mind that if relief of the requisite kind and to the requisite extent is available under another remedy, and the adequacy of the other remedy is to be determined with reference to a comparison of the speed with which the relief would be available under that remedy or under Article 98, the comparison must be based on a consideration of an intrinsic advantage of speed, if any, that the High Court may have in respect of the kind of determination that is to be made in a particular category of cases. It for example the decision depends on a point of law alone, which to any case will have to be decided by this Court finally, it will be speedier it the High Court would do straightaway what it any how would be called upon to do later. When the relief sought for is by its nature one which lends itself to be effectively remedied by orders of the nature contemplated in paragraphs (a), (b) and (c) of sub-Article (2) of Article 98, then the intention of the Constitution appears to be that the remedy granted by the Constitution should be made available to the citizen unless the Court is satisfied that other adequate remedy is provided by law. The other adequate remedies provided by law would, in the ordinary circumstances, have reference to the remedies provided by the particular statute itself which has created the right or obligation and not a general remedy at law, as for example by a suit. On the other hand, if the remedy sought for is in substance a remedy which is available under the law, then, a suit and not the extraordinary remedy under Article 98 should be the appropriate remedy, for, the remedy provided by this Article is not intended to be a substitute for the ordinary forms of legal action. But where this is not the case the remedy by way of a suit can hardly be considered to be an adequate alternative remedy.'

16. Again in "Muhammad Nazir Khan v. Dr. Mubashar Hasan and another" (P L D 1974 Lah. 49), the learned Judge considered the dictum of Supreme Court in "Anjuman-e-Ahmediya, Sargodha v. The Deputy Commissioner, Sargodha and another" (P L D 1966 S C 639) and view of the Lahore High Court in "Dr. Abdul Hafeez v. Chairman, Municipal Corporation, Lahore and others" (P. L, D 1967 Lab. 1251) and formed the opinion that according to law the other remedy to be adequate remedy must be efficacious, convenient, beneficial and effective. In hi view, the relief afforded by ordinary law must not be less efficacious, m o. expensive and cumbersome to achieve, as compared to that provided under this Article. It was concluded that application of the aforesaid principledepends upon the circumstances of each case,

17. Mr. Fazal-e-Hussain, the learned counsel for the appellant, also invited our attention to various citations of Supreme Court of Pakistan and the Karachi High Court and emphasised that mere presence of alternative remedy was not sufficient to preclude High Court from granting relief in exercise of its extraordinary jurisdiction. In Hussain Haji Ahmed v. S. Ashhad Ali and another" (P L D 1957 Kat &74) the petitioner challenged the order of requisition of his built up property, in writ petition. He had instituted a suit on the identical grounds against the said order, but the same was suppressed in the writ petition. On knowing the institution of the suit, an option was given to the plaintiff to withdraw relief claimed in the plaint identical to one claimed in the writ petition. On his doing so the requisite relief was granted to the petitioner in exercise of the special jurisdiction. It was observed as under :- "There is no absolute bar to the Court exercising jurisdiction under Article 170 of the Constitution merely because there are other remedies available to the party concerned. Writs of mandamus, certiorari, and for the matter of that, all high prerogative writs are ordinarily not issued where there exists an alternative remedy, equally efficacious, and adequate. But this is not an inflexible rule and where Courts think it just and convenient they are entitled to issue such writs. The fact that ordinarily the Court does not issue such writs in such circumstances is not due to their want of jurisdiction but for reasons of expediency. Ordinarily the High Court will be reluctant to interfere by way of high prerogative writs if the petitioner has actually taken recourse to the remedy either in the Statute or by way of a suit. But where an inferior tribunal assumes jurisdiction and the want of jurisdic tion is patent on the face of it; where the proceeding complained of are against the principles of natural justice and where the alternative remedy is too costly or ineffective or entails such delay that the applicant would be irreparably prejudiced or the remedy might prove valueless, this ordinary rule will not be an obstacle in issuing an appropriate writ. Where-the petitioner had already instituted a suit, which was pending, for a declaration that requisition of his premises under the Sind (Requisition of Land) Act (XLVI of 1947), was illegal and without jurisdiction Held, that as want of jurisdiction was patent on the face of the requisition order, it would be sheer waste of time and money if the petitioner was asked to get this very question decided by the Civil Court which had huge arrears of civil work for disposal and it might take another year for the case, to reach the stage of hearing.

18. In 1. t.-Col. Nawabzada Muhammad Amir Khan v. The Controller of Estate Duty and others' (P L D 1961 S C 119) during the pendency of the writ petition an appeal was filed by the appellants before the Appellate Tribunal. An objection was raised that before the appellant could be entitled to invoke extraordinary jurisdiction of the High Court they ought to have exhausted the remedy by way of appeal against the order of the Controller to the Appellate Tribunal. The objection was overruled with the following observation :- "The rule that the Court will not entertain a writ petition when other appropriate remedy is yet available is not a rule of law barring the jurisdiction of the Court. It is a rule by which the Court regulates the exercise of its own discretion.. As stated in Halsbury at page 107, 3rd Ed., Vol. TI "The Court will, as a general rule, and in the exercise of its discre tion, refuse an order of mandamus, when there is an alternative specific remedy at law which is not less convenient, beneficial and effective." One of the well-recognized exceptions to this general rule is a case where an order is attacked on the ground that it was wholly without authority. This exception was referred to in the very case on which reliance is placed by the learned Attorney-General, i. e. Tarig Transport Co. v. Sargodha-Bhera Bus Service (1) and also in the later case of this Court S. A. Haroon v. Collector of Customs (2). In the last mentioned case an appeal against the order of Collector of Customs was actually pending when the writ petition was decided by the High Court, yet this Court refused to give effect to this preliminary objection on the ground that the order of the Collector was attacked as in excess of authority and a question of interpretation of law which was of general importance was involved. It may be pointed out here that in accordance with a passage in Halsbury (p. 130, 3rd Edn., Vol. II), which is reproduced on S. A. Haroon v. Collector of Customs, the objection as to existence of the right of appeal which is available in a petition for of mandamus is not available in a petition for ceritorari, as there is with mandamus.

There is no rule in regard to certiorari, as there is with mandamus, that it will lie only where there is no other equally effective remedy; and provided the requisite grounds exist, certiorari will lie although a right of appeal has been conferred by Statute." This is not in accord with what is stated in Ferris on Extraordinary Legal Remedies, but it may be pointed out in support of the state ment in Halsbury that if the existence of aright of appeal be an obstacle to petition for certiorari, then petitions for certiorari against the orders of the Custodian, the various election Tribunals and Industrial Tribunals, will have as a general rule to be dismiss ed because an appeal by special leave does not lie in all such cases to this Court and the grounds of such appeal are surely not narrower than the grounds for certiorari. The existence of the right of appeal to this Court has however never been regarded as a bar to the entertainment of petitions for certiorari by the High Court. So fat as proceedings in excess of jurisdiction are concerned it is accepted even in Ferris on Extraordinary Legal Remedies that certiorari will lie even though a right of appeal exists".

19. Again the aforesaid rule was followed in "The Murree Brewery Co. Ltd. v. Pakistan, through the Secretary to Government of Pakistan, Works Division and 2 others" (1) In this case certain properties of the company were acquired under the Capital Development Authority Ordinance, 1960. The acquisition proceedings were challenged in the High Court by way of a writ petition. An objection was raised that in presence of alternative remedy by way of an appeal, the writ jurisdiction could not be resorted to. The objection was overruled in the light of the following observation ;- "The petitioner challenged the very jurisdiction of the Capital Development Authority to make the impugned acquisition under the Ordinance. If it had succeeded in establishing that the impugned acquisition was ultra vices the Ordinance, its appeal under section 36 would have been an exercise in futility. The rule that the High Court will not entertain a writ petition when other appropriate remedy is yet available is not a rule of law barring jurisdiction but a rule by which the Court ,regulates its jurisdiction. One of the well-recognised exceptions to the general rule is a case where an order is attacked on the ground that it was wholly without authority. Where a statutory functionary acts mall fide or in a partial, unjust and oppressive manner, the High Court in the exercise of its writ jurisdiction has power to grant relief to the aggrieved party. The appeal under section 36 of the Ordi nance is limited to a matter which is within the jurisdiction of the authority concerned and the scope of the Ordinance. A question of jurisdiction is a matter ' for review, which is based not on the merits but on the legality of the lower authority's proceedings".

20. The language of subsection (2) clearly shows that in cases of all or any one of the factors listed under the section, any aggrieved person may successfully invoke special jurisdiction of the High Court to seek his redress on satisfying the High Court that there was no adequate alternative remedy, under law, to grant the requisite relief. It is thus clear that mere C presence of alternative legal remedy is not sufficient to exclude the jurisdiction of the High Court. In order to oust the jurisdiction it was imperative to show that alternative legal remedy was equally sufficient, efficacious, expedient and expeditious. The study of case law referred above also leads us to an identical conclusion,

21. Now that we have framed a standard to test as to whether appellant was competent to seek quashment of the order of respondent No. 2 by invoking writ jurisdiction and also to appreciate the impugned finding, in true perspective of the aforesaid test, the relevant part of the finding of the learned Judges of the High Court is quoted below:- "If we assume for the sake of argument that the objection incorporat ed in the impugned order has not been raised in the execution pro ceedings and that the same could not be raised in execution pro ceedings, the petitioner is not to suffer and it is for the executing Court to see that the decree is executed in accordance with law. In case any such objection is raised, the executing Court is compe tent to deal with any such objection within the meaning of sec tion 47, C. P. C. and needless to say that executing Court is compe tent to determine the validity of such objection. The order of the executing Court is open to appeal or revision etc. and it cannot be said that the petitioner has no alternative remedy for the redress of his grievances except invoking writ jurisdiction. It hardly needs any authority that the Constitutional jurisdiction which vests in this Court, can be invoked only if there is no other efficacious and adequate remedy available to the petitioner. The grievance of the petitioner against the impugned order is that the same may hamper execution proceedings but the fact remains that the execut ing Court being seized of the matter, is fully competent to go into the objections or for the matter the validity of. the impugned order. It is a well-settled principle of law- that the superior Courts are always reluctant to entertain writ petitions when any other civil or quasi-civil proceedings are pending in any Court. In the instant case, the civil Court being seized of the execution proceedings, the resort to writ jurisdiction is absolutely misconceived".

22. It is evident from the impugned finding that the learned Judges of the High Court, for whom we have all respect, failed to apply them mind to the importance of meaning and scope of the word "adequate", as pre-condition to alternative remedy in law and dismissed the writ petition summarily. It is admitted that the execution of decree is sub judice, but at the same time it was imperative to examine the scope of jurisdiction of executing Court, particularly in presence of legal objections raised in the writ petition to resolve the controversy between the parties. The impugned judgment contrarily suggests that the legal proposition raised in the writ petition was not considered worth importance and was ignored completely. To understand the proposition more clear we proceed to examine the scope of jurisdiction of executing Court (forum for alternative remedy).

23. The relevant law relating to execution of decree and scope of jurisdiction and powers to executing Court is contained in sections 36 to 47 and under Order XXI of the C. P. C. In section 47 it is provided that all questions arising between the parties to the suit in which the decree was passed, or their representation or satisfaction of the decree, shall be determined by the Court executing the decree and not by a separate suit. The provision was incorporated by the legislature with the object to provide relief to the parties expeditiously. It is -well-settled that executing Court is vested with the power to execute a decree in the light of its terms. It cannot travel beyond the limits of decree. Thus any question likely to frustrate the decree itself cannot be looked into by executing Court, unless the decree is patently a nullity. Again, it may be stated here that a decree is nullity when it is passed by the Court having no jurisdiction or it is a decree against a dead person. In brief the domain of jurisdiction of executing Court spreads over the terms of the decree and the Court in no circumstances is eligible to travel beyond or trangress the limits of the .decree. Mr. Fazal-e-Hussain, the learned counsel for the appellant, invited our attention to various authorities to canvass that executing Court was incompetent to look behind the certain wall of the decree itself. Reference was made to "The Bank of Bihar Ltd. v. Sarangdhar Singh and another" (AIR1949PC8). In this case it was held that execution Court cannot go behind the decree and question its correctness. In "Topanmal Chhotamal v. Mls. Kundomal Gangaram and others" (AIR 1960SC388) it was held that executing Court cannot go behind the decree and give the relief to plaintiff, which was expresely denied to him in the suit. A Court executing a decree cannot go behind the decree; it must take the decree as it stands, but the decree is binding and conclusive between the parties to the suit.

24. In "Haji Lal Patni v. Sri Kali Nath (AIR 1962 S C 199)" it was held that the validity of a decree can be challenged in execution proceedings only on the ground that the Court which passed the decree was lacking inherent jurisdiction in the sense that it could not have seizin of the case because the subject-matter was wholly foreign to its jurisdiction or that the defendant was dead at the time the suit had been instituted or decree passed or some such other grounds which could have the effect of rendering the Court entirely lacking in jurisdiction in respect of the subject-matter of the suit or over the parties to it.

25. In "Messrs Haji Ahmed and Co. v. Muhammad Siddique and others" (P L D 1965 (W. P.) Kar. 293) it was held that only ground which has been recognised by Courts and which can be urged in execution proceedings as re gards the validity of the decree is that the Court which passed the decree had no jurisdiction to do so. Such absence of jurisdiction must be inherent. Except in such cases the execution Court has no jurisdiction to go behind the decree. It has .no power to enter tain an objection as to the validity of the decree upon the ground that it was obtained by fraud. An objection was raised in the execut ing Court that award of the Arbitrator was made without jurisdic tion. The executing Court disallowed the objection on which leave was sought in the Supreme Court. The learned Judge refused to grant leave holding thereby that an executing Court cannot go behind an award and determine its validity or invalidity. Executing Court is required only to execute the award as it is. An identical proposition when raised in "Yousuj Aziz v. Mst. 'Aqeela Begum and 3 others" (P L D 1978 Kar. 205), it was held that award of the Arbitrator, when made rule of the Court, merged in decree. Such award cannot be challenged as a nullity and nullity of award cannot be pleaded as ground of attack against decree.

26. In exercise of powers under section 47, C. P. C. the executing Court is empowered to settle the controversy relating to execution, discharge or satisfaction of decree and questions related thereto between the parties to the suit in which the decree was passed or their representatives. The executing Court was ineligible and excluded to lay its hand on controversy or questions, falling out of the ambit or scope of the provision of section

47. The other aspect of the proposition concerning the jurisdiction of the executing Court and sought to be examined by us is as to whether executing Court is competent to decide the question relating to a pre-decree matter. It is also impor tant to consider as to whether objection relating to the expiry of lease period is in fact a pre-decree matter, as emphasised by Mr. Fazal-e-Hussain.

27. First we shall determine the second part of the argument and see whether the point of expiry of lease period is actually the pre decree matter. It is undeniable that the objection raised in the impugned order of respondent No. 2, pertains to the terms and con ditions of the argument. It is also seen that reference to the Arbitration was made in the light of the agreement between the parties. Therefore, the condition relating to the stipulated period of the lease has obviously preceded the decree. It is, therefore, neither unsafe nor prejudicial to hold that in all fairness to the parties question relating to expiry of leas period is a pre-decree matter. In case respondents believed in good faith that stipulated period of lease was to expire on 2nd January, 1970, it was imperative for them to raise the objection at the earliest oppor tunity. The earliest opportunity available to them was the proceedings before the Arbitrator. It was pointed out by Maulvi Siraj-ul-Haq, the learned counsel for the respondents, that at the time of Arbitration proceedings the objection was not available to the respondents. This may be true but the fact of the matter is that the respondents failed to challenge the award on this ground. The opportunity of filing objections against the award, under sections 30 and 33 of. the Arbitra tion Act, was fully availed. It has not been shown to us as to why the objection was waived and the award was allowed to be made rule of the Court after expiry of the stipulated period. It was all the more incumbent upon the respondents to get all the terms and conditions on the agreement entered into the award so that the same were made part of it in order to bind the parties. Secondly, when the award was filed in the Court this was the other stage when such terms and con ditions of the agreement were available to be incorporated in the award so that the same were made terms and conditions of the decree. This opportunity was also lost. The respondents equally wasted the subsequent opportunities when they filed appeal before the Division Bench of the High Court and petition for leave to appeal in this Court. Mr. Fazal-e-Hussain, the learned counsel for the appellant, has rightly pointed out that respondents fought the battle to the last in the Court premises and finally when the appellant scored victory by force of law this victory was sought to be frustrated once again by obsolete weaponry.

28. In "Krishna Raj. Trading Corporation v. Ram Saran Dass and brothers" (A 1 R 1962 All. 374), it was held that in certain exceptional circumstances when the decree is a nullity or patently without jurisdiction; it is not open to the executing Court to go behind the decree and question its validity. Nor can the executing Court say that the decree should have been passed in a way different from the way- in which it has actually been passed and then proceed to execute it as if it had been passed in that other manner. In case of an agreement between the parties the only thing which the parties could do is to bring forward that agreement at the time when the decree was being passed and to have it incorporated in the decree. That not having been done the agreement, if any, must be deemed to have been superseded by the decree and the decree must be given effect in preference to the alleged agreement.

29. In `Co-operative Bank, Harsana Kalan v. Ram Sarup Ravi Datt' (A I R 1953 Pb. 267), it was held that jurisdiction of an executing Court extends to executing the decree or not executing it only when it is without jurisdiction. Merely because there was an agreement previous to the decree that the debtor will have no further liability, limited or unlimited, J is not a ground of jurisdiction, but can only be raised as a bar to the making of award. Once the award is made; it operates as a decree which the executing Court cannot refuse to execute.

30. In "Seth Sanwal Das v. Seth Narain Das" (A I R 1955 Bhopal 3), it was held that an executing Court had no jurisdiction to inquire into a payment or adjustment before the decree being at variance with the decree. The question of such a payment or adjustment does not fall within the purview of the question relating to the execution, discharge or satisfaction of the decree. The executing Court has jurisdiction only with regard to the decree as it stands. An identical view was held in " Tablruddln v. Protva Rani Devi" (A I R 1956 Cal. 454), "Bhaskar Dattatraya v. Nilkanth Dattatraya Subnis" (A I R 1938 Nag. 265), "Robert Her cules Skinner v. R. M. Skinner and others', (A I R 1937 Lab. 537) and "Azizur Rehman Choudhury and others v. Alirafa Choudhry and others"( A I R 1928 Cal. 527). For the view we have taken in the matter, we cannot see eye to eye with the learned Judges of the High Court that the executing Court can go behind the decree. Even otherwise, the objection listed in the judgment of the High Court could not efficaciously be disposed of by the executing Court and on this view of the matter we feel that the writ petition ought to have been admitted for regular hearing to determine the most important points which were being agitated in the writ petition. We have given our considered thought as to whether we should our selves decide the points listed in the writ petition and have come to the conclusion that it would be in the interest of justice to leave them to be decided by the High Court. In the result we accept the appeal with costs and remand the case to the High Court to determine the points in volved in the petition. M. Y. M Appeal accepted.