' This revision petition arises out of a partition suit filed by the respondents, seeking partition of joint holding measuring one Kanal, 2 Marlas wherein, the respondents claimed 7/11th share. The suit of the respondent was contested by the petitioner and the learned trial Court on 13-9-2001 passed a preliminary decree in favour of the respondents determining share of the parties in the joint holding.
' The petitioner aggrieved of the preliminary decree, dated 13-9-2001 filed an appeal before the learned Additional District Judge, Shakargarh but remained unsuccessful, as the same was dismissed on 2-1-2003.
3. A short factual background of the case is that the petitioner (Razia Sultana) and Salma Begum, predecessor-in-interest of respondents Nos.1 to 4 were the real sisters. The petitioner purchased land measuring 7 Marlas out of a joint holding from one Siraj-ul-Haq vide registered sale-deed, dated 5-10-1991. Salma Begum (predecessor-in-interest of the respondents) also purchased 7 Marlas from the same vendor through a separate sale-deed. Exh.P.4, dated 5-10-1991. The total area of this joint holding was one Kanal and two Marlas. The remaining 8 Marlas is owned by one Sana Ullah, who was not impleaded as a party to the suit, filed by the respondents.
4. The learned counsel for the petitioner contends that a suit for partition of joint holding could not proceed unless and until all the co-owners were impleaded as party thereto. He further submits that although parties are in possession of portions of the joint holding according to their entitlement and there is also assertion that there had been some private partition, yet all the co- owners should have been impleaded in the suit by the respondents. He in this behalf relied on the cases of Haji Abdullah Khan and others v. Nisar Muhammad and others PLD 1965 SC 690, Mst. Mehr Nishan v. Mst. Gulzar Begum and 2 others 1986 CLC 1706 and. Syed Mohsan Raza Bukhari and 4 others v. Syeda Azra Zenab Bukhari 1993 CLC 31.
4. The learned counsel for the respondents argues that there was a private partition between the parties whereunder they are in possession of parts of the joint property according to their entitlement and as such, impleadment of all the co-sharers was not necessary.
5. I have considered the arguments of the leaned counsel for the parties and have examined the record appended with this petition Exh.P.2 is the copy of register Haqdaran Zamin for the year 1992- 93, which shows that Sana Ullah as a co-sharer has 4/11th share, whereas Salma Begum and Razia Sultana Begum daughters of All Ahmad are co-owners to the extent of 7/11th share. This document coupled with copy of mutation Exh.P.1 attested in favour of Mst. Salma Begum, predecessor-in- interest of the respondents, clearly shows that Sana Ullah is a co-owner with the parties to this litigation and has a subsisting interest in the joint property who undeniably was not impleaded as a party to the suit. A similar question fell for determination of this Court in the case of Syed Mohsan Raza Bokhari (supra) and it was held that in suit for partition each co-proprietor is allocated share in the property by dividing it and thus, is a necessary parry. It otherwise sounds unreasonable that out of three co-owners, two may have partitioned of their choice, at the back of third co-sharer, thus, I hold that Sana Ullah co-sharer was a necessary and proper party to the suit in hand but has incorrectly not been impleaded by the respondents as a party to the suit and the decrees passed in his absence, by both the Courts below are not sustainable.
6. The learned counsel for the respondents objects that no such objection was either taken in the written statement or was urged before the Courts below and thus, cannot be allowed to be raised in the revisional jurisdiction. I cannot see along him an eye to eye because, it is a defect apparent on the face of the record and it was the duty of the Courts below to advert to it, of their own. Even otherwise, it is a law point whether a person who is admittedly a co-owner, is a necessary party to the proceedings or not and thus, it can be raised at any stage of the proceedings. My this view is supported by the judgment given by the Honourable Supreme Court of Pakistan in the case of Haji Abdullah Khan and others, noted above.
7. For what has been discussed above; I am constrained to hold that Sana Ullah being a co-owner in the property in question was a necessary and proper party and preliminary decrees passed by the two Courts below, in his absence, are unlawful, and thus, are liable to be set aside. I accordingly accept this revision petition, set aside the impugned decrees and remand back the case to the learned trial Court for its fresh trial, after impleading Sana Ullah co-sharer as a defendant to the suit.
8. Since, the dispute between the parties regarding partition of joint holding hinges since 1997, I direct the learned trial Court to conclude the proceedings expeditiously, preferably within a period of 6 months from the date of receipt of this judgment. Compliance shall be reported to the Deputy Registrar (Judicial) of this Court. No order as to cost.
Case remanded.
2004 CLC 671 [Karachi] before Muhammad Roshan Essani and Khilji Arif Hussain, JJ Messrs DAWOOD COTTON MILLS LTD.---Appellant versus K.F. DEVELOPMENT CORPORATION LTD.---Respondent High Court Appeal No,230 of 2001, decided on 8th April, 2003. (a) Execution--- ----Jurisdiction---Wrong order/judgment-Decree without jurisdiction---Powers of Executing Court---Scope---Executing Court could not go behind decree, except where the same was passed by a Court having no jurisdiction or was nullity in the eye of law being without jurisdiction-- -Wrong order/judgment could be questioned by way of appeal/revision or other remedy available in law, but Executing Court could not normally refuse to execute a decree on such plea. Ip. 674] A B.V. Aatan Kar and others v. C.G. Sastry AIR 1961 SC 272 and Faqir Abdullah and others v.
Government of Sindh PLD 2001 SC 131 ref.
(b) Jurisdiction-- ----Order/judgment passed by Court having jurisdiction could not be equated with an order passed by Court having no jurisdiction in the matter. [p. 675] B Abrar Hassan for Appellant.
M.G. Dastgir for Respondent.
Date of hearing: 12th March, 2002.
' KHILJI ARIF HUSSAIN, J.--- The appellant preferred the appeal against the following order, dated 3- 9-2001 passed in Execution Application No,150 of 2000:-- ' "The objection taken by the decree holder is not tenable as the amount of decree with mark-up has not been disputed. The decree has not been challenged. The counsel for the J/D has only reservation regarding the calculation, Mr. M.G. Dastgir has no objection if the Nazir is directed to calculate the amount of markup at the rate of 15% on two amounts from the date mentioned in the decree, which are 3-1-1985 and 3-3-1999 on Rs,5,53,840 and Rs,1,18,485 respectively and to encash the F.D.R. Lying with the Nazir as security and pay the amount to the decree-holder, if any amount is left be paid to the J/D. However, J/D is directed to make payment within 15 days failing which, the direction to the Nazir is to be complied with."
' Brief facts of the, case are that the dispute relating to payment of bill, etc. In respect of a construction contract between the appellant and the respondent was referred to Sole Arbitrator Justice (Retd.) Agha Ali Haider, where respondent filed claim of Rs,40,63,321 with a prayer for interest at the rate of 2% per month on it from 21-4-1988. The learned Arbitrator after recording the evidence and hearing the parties awarded a sum of Rs,5,53,840 and Rs,68,485 in favour of respondent while rejecting the counter-claim'of the appellant. The said award was filed in this Court and registered as Suit No,13 of 1995. The respondent filed objections under sections 30 and 33 of the Arbitration Act seeking its modification, whereas appellant had not filed any objection.
' After hearing the objections, the learned Single Judge of this Court by his judgment, dated 3-3- 1999 modified the Award holding that the respondent is entitled to the mark-up at the rate of 15% per annum on the sum of Rs,553,840 with effect from 3-1-1985 till its payment and further that the respondent being entitled to the mark-up in relation to a sum of Rs,1,18,485 from the date of decree till payment. The appellant after the award was made rule of Court and after passing of decree in terms of modified Award did not prefer any appeal against the said judgment and decree questioning the judgment/decree passed by this Court.
' The respondent filed Execution Application No,150 of 2000 on 20-5-2000 i.e, almost after one year of passing of the judgment and decree, the appellant filed counter-affidavit/objection in the execution proceedings and stated that the appellant had not filed any objection on the award given by Sole Arbitrator and that till the filing of the execution application the appellant was never informed or asked by the decree-holder for the payment of decretal amount.
' The learned Judge of the Executing Court after hearing the parties passed the order referred above. From the perusal of the said order it appears that only objection taken before the Executing Court was about the calculation of the mark-up in terms of decree passed by the Court.
' Heard Mr. Abrar Hassan, learned counsel for the appellant and Mr. M.G. Dastgir, learned Advocate for the respondent.
' The learned Advocate for the appellant Mr. Abrar Hassan questioned the legality of the judgment and decree making award rule of the Court in execution proceedings on the grounds (i) that Court can grant interest while making award rule of Court only from the date of judgment/decree, i.e, from 3-3-1999, whereas interest awarded from 3-1-1985 is illegal and unlawful decree to this extent at least cannot be executed; (ii) the appellant can question judgment and decree passed by the Court making the award rule of the Court in execution proceedings, if the same is being in violation of section 29 of the Arbitration Act, even if no appeal has been filed by the appellant against the said judgment and decree; and that the Executing Court can go behind the decree in the circumstances of the case.
' The learned Advocate for the appellant strongly relied upon section 29 of the Arbitration Act in support of his objection No,(i) and contended that in terms of section 29 of the Arbitration Act, 1940 Court can pass decree with interest only from the date of decree and not from the date prior to the date of decree.
'We have given our anxious consideration to the arguments of the learned Advocate.
' It appears from the judgment that both the parties argued at length before the learned Single Judge on the point whether Court can grant interest prior to the date of decree ; and after discussing respective contentions of the learned Advocates, the learned Judge modified the award.
' Section 15 of the Arbitration Act conferred powers upon the Court to modify or correct an Award.
The learned Single Judge while making award rule of the Court, modified the same granting interest from 3-1-1985 in exercise of powers under section 15 of the Arbitration Act. As we are not sitting in appeal against the judgment and decree passed by the learned Judge modifying the award granting interest from 3-1-1995, which has thus attained finality as such we are not making any comment on the said judgment and confined ourselves only to the extent that whether in the appeal arising out of order passed in execution proceedings we can interfere in the judgment and decree passed by the Single Judge.
' Mr. Abrar Hassan, Advocate for the appellant, in support of his second objection relied upon the case of B.V. Aatan Kar and others v. C.G. Sastry AIR 1961 SC 272 and Faqir Abdullah and others v.
Government of Sindh PLD 2001 SC 131. The principle laid down in both the cases are quite distinguishable on the basis of facts and are not applicable on the facts of the present case. In the case of B.V. Patankar, the Supreme Court of India refused to execute the decree, in view of the provision in the Rent Controller's order of 1948, which provides that a tenant in possession of house shall not be evicted therefrom whether in execution of decree or otherwise except in accordance with the provisions of .... In the case of Faqir Abdullah (supra) Honourable Supreme has held that executed Court while exercising jurisdiction under section 47 of Civil Procedure Code can determine the executability of a decree if it satisfied that the decree is a nullity in the eye of law or has been passed by Court having no jurisdiction or execution of the decree would not entrench the legal rights of decree-holder if refused to execute or the decree has been passed in violation of any provision of law.
In our humble Opinion both cases, referred above, could not support the contention of the learned Advocate. We are of the view that an Executing Court cannot go behind the decree except where the decree was passed by a Court having no jurisdiction or the same is nullity in the eye of law being without jurisdiction. A wrong order/judgment passed by the Court having jurisdiction can be questioned by way of appeal/revision or other remedy available in law but Executing Court cannot normally refuse to execute a decree on such plea. An order/judgment passed by the Court having jurisdiction cannot be equated or placed at the same pedestal to an order passed by the Court having no jurisdiction in the matter.
' Admittedly after modifying the award and passing the decree in terms of it, the appellant has not challenged the said decree although the said modifications were ordered in presence of the appellant. Mr. M.G. Dastagir, learned Advocate for the respondent, argued that the bill submitted by the respondent on 3-1-1985 was not paid by the appellant as the respondent had filed the claim before the Arbitrator and in the said claim also requested to grant interest on the unpaid bill, which was declined by the learned Arbitrator. The learned Advocate argued that after filing of award the appellant had not filed any objection and it is the respondent, who filed the objection requesting the Court to modify the award granting interest on the amount of award from the date of submission of the bill and the learned Judge modified the award in accordance with the law against .Which no appeal has been filed.
' We do not find any illegality or infirmity in the impugned order whereby the learned Single Judge on the objection taken by the appellant regarding calculation of mark-up directed the Nazir to calculate the amount of mark-up at the rate of 15% on two amounts from the date mentioned in the decree.
' The appeal as such is dismissed with no order as to costs. These are the reasons of our short order passed today.