' MUHAMMAD NAWAZ ABBASI, J.--- This petition for leave to appeal has been directed against the judgment, dated 21-11-2002 passed by a learned Division Bench of Peshawar High Court, Peshawar, in a Constitution petition.
2. The brief facts in the background are that Muhammad Younis Khan, respondent No,2 in the present petition filed a suit in 1982 for partition of the property jointly owned by him with his other brothers and sisters. The suit was decreed in 1984 and the house, subject-matter of the dispute between the parties, fell to his share and in consequence thereto, he obtained the possession of the house in 1985. The petitioners moved an application to the executing Court on 3-6-1987 wherein they claimed that they were owner of the suit property which was sold to them by Sultan Muhammad, real brother of decree-holder and a co-sharer in the property vide registered sale- deed, dated 8-11-1980. Meanwhile, Muhammad Younis Khan, decree-holder, entered into an agreement on 14-9-1987 with Mst. Dil Ara for sale of the house and pending finalization of the transaction of sale, he while appearing before the executing Court acknowledged the sale of house by Sultan in favor of the petitioners and in consequence thereto, the objection petition was allowed.
Subsequently, Mst. Dil Ara, respondent, on coming to know about this state of affair, filed an application before the executing Court that she having purchased the house from decree-holder, vide registered sale-deed dated 12-12-1987, was in its possession as owner. The learned Civil Judge, Tangi, exercising the power of executing Court, upheld the objection of Mst. Dil Ara with observation that Sultan Muhammad, vendor, being not an exclusive owner of the house was not competent to sell the same to the petitioners and by recalling the earlier order, allowed the application. The petitioners being aggrieved of the above order executing Court filed a revision petition before the District Judge and on its dismissal vide judgment dated 11-7-1996 invoked the Constitutional jurisdiction of the High Court in the matter.
3. The learned counsel for the petitioners has contended that the executing Court after finalizing the execution proceedings and disposing of the objection petition filed by the petitioners before the sale of the house by Muhammad Younis Khan in favor of Mst. Dil Ara was not competent to entertain her application and reopen the past and closed transaction. He argued that in any case, the sale of house in favor of petitioners by Sultan Muhammad in the year 1980 having attained finality for want of challenge would not be questionable in the proceedings for execution of decree in the suit for partition. This is an admitted fact that the house was joint property and it was sold by Sultan Muhammad to the petitioner without the consent and knowledge of the remaining shareholders. This is also an admitted fact that Muhammad Younis Khan having acquired the exclusive title of the house in question in the partition suit, sold the same to Mst. Dil Ara vide registered sale-deed dated 12-12-1987 and delivered the possession under the sale. Despite the admission of decree-holder before the executing Court, prior to the registration of the sale-deed in favor of Mst. Dil Ara that house was sold by Sultan Muhammad to the petitioners in 1980, no valid title would be passed on them and the learned Judge in Chambers in the High Court having taken notice of the above unfair conduct of Muhammad Younis Khan has rightly held that the recall of the order passed by the executing Court in the objection petition of the petitioners, was unexceptional as Sultan Muhammad, being a co-owner in the house, could not competently transfer its ownership in toto whereas Muhammad Younis Khan, having obtained decree in the suit for partition, became an exclusive owner of house and validly passed the title to Mst. Dil Ara vide registered sale-deed dated 12-12-1987. The learned counsel for the petitioners next contended that in the given circumstances, Mst. Dil Ara could not maintain an objection petition and proper course for her was to file a separate suit and that the executing Court, after execution of the decree, would also become functus officio to entertain such an application. The objection petition moved by the petitioners was allowed by the executing Court after the execution of agreement to sell by the degree-holder in favor of Mst. Dil Ara, therefore, she could not join the proceedings before the executing Court at that stage. The decree-holder having entered into the sale agreement with Mst.
Dil Ara, made a statement before the executing Court and thereafter, completed the sale transaction in her favor vide registered sale-deed dated 12-12-1987, therefore, the said statement of decree-holder, would be of no value and Mst. Dil Ara could competently maintain a petition before the executing Court under rule 103 of Order XXI, C.P.C. As no separate suit would be maintainable. The learned counsel lastly contended that the petitioner having purchased the property much before the passing of decree in the partition suit from a co-owner stepped into his shoes and subsequently, the decree-holder has also acknowledged his title, therefore, the right of the petitioner in the property would be protected under the law, and the executing Court was not right in recalling the order passed in their objection petition. We are afraid, the petitioners for the first time, set up their claim of ownership of the house during the execution of decree passed in the suit for partition and despite having the knowledge of the suit, made no effort to assert their claim at any stage in the intervening period. The analysis of the matter in detail, would suggest that petitioners in collusion with decree-holder, obtained a wrong order through misleading the Court, therefore, the High Court could take no exception to the subsequent order passed by the executing Court, in its Constitutional jurisdiction. The learned counsel for the petitioners has not been able to satisfy us that the reasonings given by the learned Judge in Chambers in the High Court, were suffering from any legal infirmity or a jurisdictional error or of the defect of misreading or non- reading of evidence. We in the light of above discussion, find that no ground has been made out for interference with the judgment of the High Court.
4. For the foregoing reasons, this petition is dismissed and leave is refused.