Civil Miscellaneous No,368 of 2005 ' For the reasons recorded in the application which is supported by the affidavit and due to the undertaking given by the learned counsel for the petitioner to argue the, main case on merits today, this application is allowed and the main writ petition is restored to its original number.
Main writ petition
2. The brief facts of the case are that the petitioners and respondent No,1 filed suits for pre-emption in the year 1968 against respondents Nos.2 and 3 and issues were framed on 16-12-1969, but thereafter compromise was arrived at between the parties. Their statements were duly recorded.
While agreeing preferential rights of pre-emption of respondent No,1, she was allowed to deposit the consideration amount before 21-1-1970 and on her failure, the petitioners were to deposit the said amount within next month. It was also agreed that if either of them failed to deposit the amount their suit should stand dismissed. It was also ordered that if respondent No,1 failed to seek execution of decree within 3 years after deposit of the amount, the petitioners would be entitled to avail of the decree by depositing the money and by getting the possession of the land in dispute.
This consenting judgment and decree was passed on 16-12-1969. The decretal amount was paid by respondent No,1 on 21-1-1970 and she had moved execution, petition on 28-9-1972 before the target date but the said petition was dismissed in default on 8-6-1973. Another application was filed by her on 2-3-1974 which was also dismissed on 8-1-1984. Appeal was filed and case was remanded to learned trial Court on 20-1-1985. The case was entrusted to learned Senior Civil Judge, Muzaffargarh on 8-10-1985, who framed the issues and dismissed the same on 29-5-1991.
Subsequently, revision petition was filed by respondent No,1 which was accepted on 9-1-1996 and case was remanded for fresh decision on 26-10-1996. The application was again dismissed being barred by time. The revision petition was filed by respondent No,1 which has been accepted through the impugned order, dated 1-4-1998 and respondent No,1 has been held entitled to the execution of the decree as against the petitioners and respondents Nos.2 and 3. The learned Execution Court has also been directed to take further proceedings in the execution petition in accordance with law. Hence, this writ petition.
3. Learned counsel for the petitioners contends that it was conditional decree and when the earlier application moved by the respondent was dismissed, the second application was not maintainable as it was filed after 3 years. It is next contended that now the petitioners are in possession of the suit property as of their right because respondent No,1 having failed to fulfil the condition imposed in the consenting decree, her suit stood dismissed and no question arises for execution of decree in her favour.
4. I have heard the learned counsel for the petitioners and also gone through the documents attached with this petition. It is admitted fact that the petitioners and respondent No,1 filed two separate suits for possession through pre-emption and both the suits were pending when consenting conditional judgment and decree was passed on 16-12-1969 by the learned Civil Judge, Khanewal (Camp at M.Garh) to the following effect:-- ' ' ' So a decree for possession through pre-emption of the land in dispute for Rs,1,000 inclusive, of Zare Punjam is passed first in favour of Mst. Sahib defendant No,4 (rival pre-emptor), on her failure to avail of it in favour of the plaintiffs in equal shares. Mst. Sahib rival pre-emptor defendant No,4 shall deposit the pre-emption money before 21-1-1970 and in case of her failure to deposit the money the plaintiffs shall deposit this amount within the month next. If either of them fails to deposit the money his suit shall stand dismissed. As is also agreed by the parties it is further ordered that if Mst. Sahib defendant (rival pre-emptor) will not seek execution of the decree in her favour within the statutory period of three years after the deposit of the pre-emption money then the plaintiff shall be entitled to avail of the decree by depositing the money and by getting the possession of the land in dispute."
(Note. Plaintiffs are petitioners herein, defendant No,4 is respondent Nol. Herein and defendants Nos.1 and 2 are respondents Nos.2 and 3 in this writ petition).
5. Admittedly, the decretal amount was deposited by respondent No,1 within time and then first execution petition was filed by her within the stipulated period of 3 years on 28-9-1972, but the same was dismissed for non-prosecution on 8-6-1973. Thereafter second execution petition was also filed by her on 2-3-1974 before the expiry of six years. The learned Additional District Judge, Muzaffargarh has rightly accepted A revision petition filed by respondent No,1 while relying upon the judgment of the august Supreme Court of Pakistan titled Mahboob Khan v. Hassan Khan PLD 1990 SC 778, in which the august Supreme Court of Pakistan has held that once an application for execution is made within time so prescribed, any number of applications for execution of decree be presented within the six years' period from the date of decree. Article 189 of the Constitution provides that "Any decision of the Supreme Court shall, to the extent that it decides a question of law or is based upon, or enunciates a principle of law, be binding on all other Courts in Pakistan".
The learned counsel has failed to show any illegality, improbability and jurisdictional defect in the impugned judgment, which has been passed on valid reasons and is maintained. It is settled principle of law that petition under Article 199 of the Constitution cannot be heard as an appeal from a subordinate Court nor can embark upon reappraisal of evidence. It has only to see jurisdictional defect or violation of law or statute settled by superior Courts in passing of impugned order.
6. For the foregoing reasons, this writ petition being devoid of any merit is .Dismissed with costs.
7. Before parting with this order, I am constrained to observe that the, petitioners are admittedly in possession of the suit property while the suit was decreed in favour of respondent No,1 in the year 1970. Hence,- the competent authority or the execution Court is directed to ensure that the possession of said property is delivered to respondent No,1 (now her legal heirs) within 3 months from today at any cost and the report in this regard shall be submitted to this Court through the Additional. Registrar of this Bench, Pitition accepted.