' The petitioner has challenged the vires of orders dated 2-4-2005 and 9-4-2005 through this Constitutional petition.
2. The learned counsel of the petitioner submits that the matter has been decided in favour of the petitioner by this Court in the earlier round of litigation with regard to property in-question. The respondents filed a suit against the petitioner by mentioning wrong address and secured decree, which is nullity in the eye of law. The petitioner has already filed petition before the Honourable Supreme Court, which is pending adjudication. He further submits that the learned Executing Court has decided the objection petition of the petitioner in summary manner without framing issues and recording the evidence, therefore, the impugned orders are not sustainable in the eye of law.
He further submits that it is the duty and obligation of the learned Executing Court to decide the objection petition of the petitioner keeping in view the principle of bona fide purchaser as the petitioner is bona fide purchaser of the property in-question, but this principle was not considered by both the Courts below. He further submits that the impugned orders are not sustainable in the eye of law and also not inconsonance with law laid down by the Superior Courts. In support of his contention, he relied upon the following judgments:- "Muhammad Haleem and others v. H.H. Muhammad Nairn" PLD 1969 SC 270; "Muhammad Jewan and others v. Syed Abdul Qasim and others" 1979 CLC 186; "Muhammad Yousaf and others v. Hakam Ali and others" 1981 CLC 200; "Ghulam Qadir v. Haji Munir Ahmad and others" 1989 MLD ,503; "Chairman, WAPDA v. Umar Bakhsh" PLD 1991 Peshawar 25; "Muhammad Mansha v. The State" PLD 1996 SC 229; - "Messrs. Vulcan Company, v. Collector Customs, Karachi" PLD 2000 SC 825; "Saif-ur-Rehman Toor and others v. Registrar Co-operative Society" 2002 YLR 3343; "Mst. Arshad Bibi v. Ali Muhammad and others" 2003 CLC 10.
3. I have given my anxious consideration to the contention of learned counsel of the petitioner and perused the record.
4. It is better and appropriate to reproduce the operative part of impugned judgment of first Appellate Court to resolve the controversy between the parties:- "In my considered opinion all the objections raised by the petitioner relate to the proceedings prior to the issuance of decree. It is settled law that an Executing Court cannot go behind the decree.
The validity or illegalitY of the decree cannot be gone through by Executing Court during the execution petition. The arguments of learned counsel that the decree was result of fraud is unfounded. It has been mentioned by the petitioner in objection petition that the suit was contested by defendants, written statement was submitted. The case was fixed for the evidence of defendants. The right of defendants to produce evidence was closed under Order XVII, rule 3, C.P.C.
The ex parte decree was passed against them. Application for setting aside above said decree was filed in the Court of Civil Judge, Layyah the same was dismissed. The dismissal order was challenged in the Appellate Court . The appeal met the same fate. Civil Revision No.625 of 2003 in Lahore High Court, Multan Bench was filed against the abovementioned judgment and order. The revision petition was dismissed vide order dated 27-6-2003, passed by the Honourable Lahore High Court, Multan Bench and the decree was kept intact. The contentions raised in objection petition, are manifest that objection petitioner wants to get declaration from the executing Court that the decree is void which is certainly not within the power and jurisdiction of learned Executing Court.
The contents of objection petition have been gone through minutely. The same have been critically appreciated. All the objections relate to the stage of pre-passing of the decree. The objection have no legal force hence, it was not compulsory for the learned Executing Court to frame the issues prior to deciding the objection petitions. I have gone through the impugned order. No material irregularity has been committed by the Executing Court while passing the impugned order. The impugned order cannot be said to be passed without jurisdiction. In the same way, it cannot be said that the learned lower Court refused to exercise the jurisdiction vested in it. I see no force in this revision petition and the same is being dismissed in limine."
' Mere reading of the aforesaid operative part of the impugned judgment of first Appellate Court clearly reveals that the first Appellate Court has passed the order after application of mind. It is settled proposition of law that learned Executing Court has no jurisdiction to go behind the decree.
He (petitioner) has to challenge the vires of decree in proper proceedings either to file an application under section 12(2) of C.P.C. Or to challenge the decree before the higher forum. All the objections taken by the petitioner in the objection petition pertain the period before passing the decree in-question in favour of the respondents.
5. It is pertinent to mention here that the petitioner has concealed the material facts in the objection petition filed by him before the learned Executing Court. The petitioner has availed all the remedies before the Court of appeal and revisional Court, which have been decided in the earlier round of litigation against the petitioner. The petitioner has also availed the opportunity of application under section 12(2), C.P.C. In view of the aforesaid circumstances, both the Courts below were justified not to go behind the decree as mentioned above. It is settled principle of law that the learned Executing Court has no jurisdiction to go behind the decree in view of law laid down by the superior Courts:-- "Mst. Naseem Akhtat and others v. Shalinfar General Insurance" 1994 SCM R 22; "Sardar Ahmad Yar Khan and others v. Province of Balochistan" 2002 SCM R 122; "Dr. Idrees v. National Logistic Cell and others" 2002 CLC 1609.
It is also admitted fact that both the Tribunals below have concurrently decided the case against the petitioner. It is also settled principle of law that writ petition qua concurrent findings of the Courts below is not maintainable in view of law laid down by the Honourable Supreme Court in the following judgments:-- "Khuda Bakhsh v. Muhammad Sharif and others" 1974 SCM R 279; "Muhammad Sharif and others v. Muhammad Afzal and others" PLD 1981 SC 246; "Abdul Rehman Bajwa v. Sultan Ahmad and others" PLD 1981 SC 522.
It is settled principle of law that this Court has no jurisdiction to substitute its own findings in place of findings of the Tribunals below while exercising power under Article 199 of the Constitution, as per principle laid down by the Division Bench of this Court and by the Honourable Supreme Court in the following judgments:-- "Board of I.&S.E., Lahore v. M. Musaddaq Naseem" PLD 1973 Lahore 600; "Syed Azmat Ali Shah v. Chief Settlement and others" PLD 1964 SC 260.
' In view of the aforesaid circumstances, I am not inclined to exercise my discretion in favour of the petitioner, as per principle laid down by the Honourable Supreme Court in "Nawab Syed Raunaq Ali v. Chief Settlement Committee" PLD 1973 SC 236.
' In view of what has been discussed above, this writ petition has no merit and the same is dismissed.