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2022LHC8234

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Stereo.HCJDA 38.

Judgment Sheet
IN THE LAHORE HIGH COURT,
MULTAN BENCH,
MULTAN.

JUDICIAL DEPARTMENT
….

Civil Revision No.1620 of 2016.

Mst. Iqbal Bibi, etc.

Versus

Additional District Judge, etc.

J U D G M E N T.

Date of hearing: 29.11.2022.

Petitioners by: Kanwar Sajid Ali, Advocate.


Respondent# 3(i) by: Mr. Muhammad Nasir Javed Khan,
Advocate.

AHMAD NADEEM ARSHAD, J. Through this Civil


Revision, petitioners assailed the vires of judgment dated
21.10.2016, whereby the learned appellate Court, while accepting
the appeal of respondent No.3 set-aside the order dated 21.05.2015
of learned Executing Court with regard to dismissal of petitioner’s
objection petition and restored the execution petition filed by legal
heirs of respondent No.3.

2. Shorn of unnecessary details, respondent No.3 namely Mst.


Naseem Fatima (deceased) instituted a suit for specific performance
of an agreement to sell dated 02.10.1989 against petitioner Mst.
Iqbal Bibi (deceased) which was dismissed by the learned trial
Court vide judgment and decree dated 17.07.1994. Mst. Naseem
Fatima preferred an appeal and during pendency of said appeal, the
parties entered into compromise and in the light of compromise
Civil Revision No.1620 of 2016. -2-

deed Exh.C-1 the appeal was partially accepted vide judgment and
decree dated 24.12.1998. Legal heirs of respondent No.3 filed an
execution petition on 23.04.2014 against the legal heirs of Mst.
Iqbal Bibi/present petitioners for the satisfaction of judgment and
decree dated 24.12.1998. The petitioners filed an objection petition
on 19.09.2014 with the contention that the execution petition is
badly time barred and the same is liable to be dismissed. The
learned execution Court after obtaining its reply allowed the
objection petition and dismissed the execution petition vide order
dated 21.05.2015 being barred by time. Feeling aggrieved,
respondent/legal heirs of respondent No.3 preferred an appeal
which was allowed and the order passed by the learned executing
Court was set-aside and the case was remanded to the learned
executing Court with the direction to decide the execution petition
in accordance with law vide judgment dated 21.10.2016, hence, this
Civil Revision.

3. Learned counsel appearing on behalf of the petitioners


maintains that predecessor of respondent No.3 namely Mst.
Naseem Fatima prepared a false and baseless agreement to sell and
instituted the suit which was rightly dismissed by the learned trial
Court vide judgment and decree dated 17.07.1994 but was partially
decreed vide judgment and decree dated 24.12.1998 and thereafter
predecessor of respondent No.3, on the basis of compromise,
received back the consideration amount of Rs.28,000/- on
20.05.1999 in presence of witnesses and agreed not to file any
execution petition; that after the death of decree holder Mst.
Naseem Fatima, her legal heirs filed the execution petition which is
totally against the compromise entered into between Naseem
Fatima and Iqbal Bibi and barred by time; that the learned appellate
Court wrongly set aside the order dated 21.05.2015, dismissed the
objection petition and restored the execution petition. He lastly
prayed for acceptance of this Civil Revision and setting-aside the
impugned judgment dated 21.10.2016.
Civil Revision No.1620 of 2016. -3-

4. Conversely, learned counsel for the respondents No.3(i) to


3(iv) supported the judgment dated 21.10.2016 and while relying
upon case laws cited as “Mst. KAHAM BIBI Bibi through L.Rs
versus KHUSHI MUHAMMAD through L.Rs” (2007 SCMR 983),
“Mst, BUDHAN BIBI and 8 others versus KHUSHI MUHAMMAD
and 8 others” (2010 YLR 1436[Lahore]), “ATTA ULLAH and 2
others versus AKBAR” (2014 YLR 1034[Lahore]), “Syed
HAKEEM SHAH (DECEASED) through LRs and others versus
MUHAMMAD IDREES and others” (2017 SCMR 316),
“MUHAMMAD BAAZ versus HALQA PUTWARI MUZA MATHRA,
PESHWAR and another” (2021 CLC 689), prayed for the
dismissal of instant Civil Revision.

5. I have heard learned counsel for the parties at length


and perused the record with their able assistance.

6. Learned trial Court dismissed the execution petition


mainly on the ground that it is barred by limitation, being filed on
23.04.2014 for execution of a decree dated 24.12.1998, after a very
long and un-explained period of more than 15 years and 04 months,
as per law any fresh execution petition should be filed within a
period of 03 years of a decree and subsequent petition can be filed
within 06 years, prescribed under Section 48 C.P.C.

7. There is no cavil with the proposition that limitation


for filing of an execution petition is not provided in limitation law
and after enforcement of Law Reforms Ordinance, 1972 (XII of
1972) first application for execution of a decree would be governed
by residuary Article 181 of Limitation Act, 1908, which provides
period of 03 years. From perusal of Article 181 of the Limitation
Act, 1908 read with Section 48 of the C.P.C., it becomes clear that
for filing first application for execution, 03 years limitation will
apply and any subsequent application will be run by the limitation
provided in Section 48, C.P.C. which prescribes period of six years.
No other law is relevant or applicable.
Civil Revision No.1620 of 2016. -4-

8. Peculiar facts of this case have to be looked into before


applying the law. It is settled law that each and every case is to be
decided on its own peculiar circumstances and facts as laid down
by the august Supreme Court of Pakistan in case titled “TRUSTEES
OF THE FORT OF KARACHI versus MUHAMMAD SALEEM”
(1994 SCMR 2213). In present case, predecessor of respondents
No.3(i) to 3(iv) namely Mst. Naseem Fatima (deceased) instituted
a suit for specific performance of agreement to sell dated
02.10.1989 against predecessor of petitioners No.1(i) to 1(v)
namely Mst. Iqbal Bibi which was dismissed by the learned trial
Court vide judgment and decree dated 17.07.1994, however, during
the pendency of appeal, the parties entered into compromise and in
the light of compromise deed Exh.C-1 the appeal was partially
accepted vide judgment and decree dated 24.12.1998 in the
following terms: -
“The parties have entered into a compromise and
both the parties have put in appearance today along
with their counsel and got their statements recorded,
produced compromise deed Ex:C-1. As per
compromise, the sale price has been paid and 5ks out
of the suit land mentioned in Ex:C-1 is given to the
appellant, where-as, the remaining land would
remain with the respondent. In these circumstances,
the appeal is partly accepted in terms of compromise
deed Ex:C-1 and the appellant’s suit for specific
performance is partly decreed to the extent of 5ks of
land as mentioned in Ex:C-1 against all
consideration paid. The defendant/respondent shall
transfer land as per compromise in favour of the
plaintiff/appellant within one month from today,
otherwise, decree-holder will be entitled to get the
property transferred through process of the Court.”

9. In the present case the controversy is with regard to


limitation for filing of execution petition in a suit for specific
performance wherein the predecessor of the respondents No.3(i) to
3(iv) has already paid the consideration amount and got the
possession of the suit property as is evident from the judgment of
the learned appellate Court. As the predecessor of respondents
No.3(i) to 3(iv) had paid the whole consideration amount coupled
Civil Revision No.1620 of 2016. -5-

with the fact that she had taken the possession of the suit property,
hence, these facts make this case of its own nature and unique. In
somewhat similar circumstances, august Supreme Court of Pakistan
has laid down following principles in case titled “Moulvi Abdul
Qayyum vs. Syed Ali Asghar Shah and 5 others” (1992 SCMR 241)

“It will be material to bear in mind that a decree in a


pre-emption suit is of a peculiar nature, Under Order
XX, rule 14, C.P.C., the title of the property accrues
to the decree-holder on payment in the court of
purchase money together with costs, if any. It has not
been controverted before us that the requirements of
rule 14 have already been complied with by the
appellant. Thus, irrespective of the fact whether the
possession is delivered to him or not, title in the
property has vested in the appellant and he is owner
of the land in dispute. Viewed in this context the
respondents’ opposition to the execution of the decree
becomes all the more ethereal.”

10. Rights in property accrued to predecessor of


respondents No.3(i) to 3(iv) after payment of consideration amount,
therefore, it is not fair to deprive them from the benefit of the
decree as laid down by the august Supreme Court of Pakistan in
case “Syed Phul Shah v. Muhammad Hussain and 10 others” (PLD
1991 SC 1051) the relevant observations are as follow:-

“It is also a well-known principle in Islamic justice,


that one who succeeds in a litigation unjustly must
not retain the benefit. It has been equated with
burning charcoal in one’s pocket; which, burns and
eats away the winner’s belongings including the
retaining pocket also. Thus, while trying our best to
do justice in accordance with law, the principles in
our own jurisprudence governing just dispensation
shall have to be kept in view. In other words, while
adhering to the principle; justice in accordance with
law, we will have to keep in mind that it is the birth
right of every citizen in an Islamic State to seek and
obtain justice. In this exercise of keeping balance
between the undiluted justice and justice only in
accordance with law, the general directional
principles in Islamic come to the aid when, one
exerts.”

11. The august Supreme Court of Pakistan in case titled as


“Mst. HAKAM BIBI through L.Rs versus KHUSHI MUHAMMAD
Civil Revision No.1620 of 2016. -6-

through L.Rs.”(2007 SCMR 983) declared that in such like


situations there is no need to file execution petition for possession
and could be awarded relief under Order XX rule 14 C.P.C., in the
following manner: -
“It is a 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. The
basic foundation of the case in hand was not pointed
out by the learned counsel for the parties before the
High Court as evident from impugned judgment. It
was not in the knowledge of the learned High court
that petitioners had deposited the balance amount on
1.10.1986. The judgment of the learned High Court
is, therefore, judgment per incurrium on account of
failure of counsel for the parties qua the deposit of
balance amount within the prescribed period and
this fact was also not denied by the learned counsel
for the respondents. The judgment in favour of the
petitioners is conditional subject to payment of the
balance amount which had been deposited by the
petitioners within the prescribed period, therefore,
petitioners could be awarded relief in terms of Order
XX, rule 14 C.P.C., wherein after specifying the
decree qua the payment to the decree-holder is not
required to file execution petition.”

12. It is also well settled that justice should not be


sacrificed on account of technicalities which did not go to the root
of the cause; in so far as the fairness thereof is concerned. It was
held in “Syed Phul Shah’s case referred supra as under: -
“Even if there would have been some force in the
technical objection of the learned counsel, justice
could not have been sacrificed, at least in this court,
on the altar of the technicality which does not go to
the root of the cause, in so for as the fairness thereof
is concerned. The courts in Pakistan combine law
and justice under the umbrella of Islamic
jurisprudence; which provides harmonious solutions
for situations like the present one. One amongst
other principles which operates is that an obviously
unjust and wrong decision which is also against the
Civil Revision No.1620 of 2016. -7-

substantive law of the country shall be avoided by


the Court.”

13. Through judgment and decree dated 24.12.1998 suit of


respondent No.3 for specific performance was partially decreed on
account of compromise. It is evident from the said judgment that
sale price of five kanals land was already given and possession had
been delivered to her. In this way, first part of the decree was
performed and the title of the property accrues to the decree holder.
Now it was the duty of the judgement debtor to perform her part as
directed by the Court but she failed to transfer the decreed land as
per compromise. Suit for specific performance is always suit for
possession and as discussed earlier possession has already been
with the decree-holder, therefore, decree holder does not require to
file an execution petition for possession of the decretal land.
Performance of the second part was upon the judgment-debtor and
the decree holder can file execution petition on her refusal for the
execution of the remaining part of the decree. There is no cavil with
the proposition that one, who succeeds in a litigation, unjustly must
not retain the benefit. It is the birth right of every citizen in an
Islamic state to seek and obtain justice. The principles in our
jurisprudence, governing just dispensation to do justice in
accordance with the law shall have to be kept in view. After receipt
of the consideration amount and delivery of possession it does not
lie to the mouth of judgment debtor to question the maintainability
of the execution petition on the point of limitation.

14. In view of above discussion, learned appellate Court


has rightly observed and set-aside the order dated 21.05.2015
passed by learned executing Court, while accepting the appeal.
Learned counsel for the petitioner has failed to point out any
illegality or irregularity in the impugned judgment of learned
appellate Court, warranting interference by this Court while
exercising revisional jurisdiction.
Civil Revision No.1620 of 2016. -8-

15. Epitome of above discussion is that instant civil


revision being meritless and having no force is hereby dismissed
with no order as to costs.

(AHMAD NADEEM ARSHAD)


JUDGE.
Approved for reporting:

JUDGE.

A.Razzaq.

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