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2006 MLD 1730

MUHAMMAD HUSSAIN and 3 others vs MUHAMMAD RAFIQ and 11 others

Citation2006 MLD 1730
CourtLahore High Court
Case No.Civil Revision No,1196 of 2000
Date2004-01-30
Judge(s)Muhammad Muzammal Khan
ResultRevision dismissed

' MUHAMMAD MUZAMMAL KHAN, J.---This Civil Revision assails the orders, dated 28-9-1999 and 11-5- 2000 passed by the learned Civil Judge/Executing Court and the learned Additional District Judge, Sheikhupura, whereby, the application moved by the judgment-debtor (predecessor of petitioners) seeking correction of decree was dismissed and his appeal thereagainst was failed, respectively.

2. Precisely, facts relevant for disposal of this petition are that Allah Bakhsh, Allah Ditta sons of Hussain Bakhsh (predecessors of the respondent) filed a suit for possession through pre-emption against the sale of 41 kanals and 14 marlas of land, situated in Sariay Puhkia Tehsil Ferozewala, District Sheikhupura, dated 6-1-1980, in favour of Barkat Ali-predecessor of the petitioners. This suit was decreed with regard to 18 kanals and 6 marlas, whereas, regarding remaining land measuring 16 kanals and 18 marlas was dismissed vide judgment and decree, dated 16-11-1981 which was subjected to an appeal and cross-objections which were disposed of through a judgment, dated 3-1-1982. After this the dispute came up before this Court through a civil revision which was dismissed on 23-5-1992. The respondents filed an execution petition on 6-3-1994 that mutation of land measuring 18 kanals and 13 marlas has been entered and warrant of possession was needed.

This execution was resisted by the judgment-debtor (predecessor of the petitioners) by filing an application for amendment of decree sheet that land measuring 16 kanals and 18 marlas was also included in the decree sheet, besides claiming that execution petition is barred by time, having been filed after lapse of three years. Executing Court after hearing the parties refused to amend the decree in view of clear findings in para 4 of the judgment of the learned Additional District Judge, that pre-emption suit was decreed to the extent of 18 kanals and 6 marlas and regarding remaining 16 kanals and 18 marlas it was dismissed. Executing Court dismissed the objection petition and ordered issuance of warrants of possession to the extent of 18 kanals and 6 marlas vide order, dated 3-6-1997.

3. Dispute regarding amendment of decree was brought in appeal before the District Courts, but was dismissed and feeling aggrieved of appellate decision, the dispute came up before this Court in civil revision No,1216 of 1997 but the civil revision also met the same fate of dismissal on 28-7- 1997. Predecessor of the petitioners filed petition for leave to B appeal before the Honourble Supreme Court but could not get any relief, thereform. The Honourable Supreme Court affirmed the order passed by the Executing Court directing issuance of warrants of possession with regard to 18 kanals 6 marlas by observing that executing Court has already directed that the land sought to be excluded by amendment of decree, has not been included in the warrants of possession now to be issued, through their erstwhile judgment, dated 2-4-1999.

4. Execution Petition was once consigned to record room but was revived on the assertion of the judgment-debtor that his application, dated 25-10-1997 for correction of decree; is still pending adjudication. On this representation, order consigning execution petition was recalled but ultimately after dismissal of CPSLA No,1185-L of 1997, executing Court ordered that on account of completion of execution proceedings since 25-9-1998, the execution petition be consigned to record room, through an order, dated 28-9-1999.

5. The petitioners once again filed an appeal before the learned Additional District Judge against the order, dated 28-9-1999 passed by the Executing Court but could not succeed, as their appeal was dismissed on 11-5-2000. Thereafter they filed instant revision petition, which was admitted to regular hearing and has now been laid for final determination.

6. The learned counsel for the petitioners, submits that warrants of possession were issued in violation of the judgment of the Honourable Supreme Court and as such the executing Court erred in dismissing theobjections filed by the predecessor of the petitioners. According to him revenue authorities did not enter the land according to original judgment and instead issued a warrants regarding the entire land, shown in the decree sheet. It has also been argued that the revenue officials were obliged to enter correct khasra numbers in the name of the respondents and their failure in this behalf has resulted in miscarriage of justice.

7. The learned counsel for the respondents submits that their suit was decreed to the extent of 18 kanals and 6 marlas and possession of this land, has already been given to the respondents as such, there remains nothing to agitate as is clear from the order of the executing Court, dated 28- 9-1999, whereby no process was issued. He further contends that after decision of the Honourable Supreme Court the petitioners cannot claim correction of the decree, already affirmed by all the Courts, including the Honourable Supreme Court. He further submits that mutation in favour of the respondents has correctly been sanctioned according to the above referred judgments and in their possession also in terms of the mutation sanctioned, as such no interference can be made at this stage.

8. I have anxiously considered the respective arguments of the learned counsel for the parties and have examined the record, appended herewith. It is an admitted fact that the suit of the respondents for possession through pre- emption was decreed only to the extent of 18 kanals and 6 marlas regarding which warrant of possession was issued. The land, which was not decreed in their favour, was not included in the warrants of possession. The dispute with regard to correction of decree stood finally determined by an order, dated 3-6-1997 passed by the executing Court which was affirmed by all the Courts, up to the level of Honourable Supreme Court through their judgment, dated 2-4-1999, after judgment the same matter cannot be re-opened, through back door. The executing Court did not issue any process after the above referred decision of the Honourable Supreme Court and simply consigned to the record room the execution, petition vide order, dated 28-9-1999 which has now been impugned. Since no action was taken by the executing Court and mutation possession of the respondents being only to the extent of 18 kanals and 6 marlas decreed in their favour, there appears to be no alive issue for determination by the executing Court and it is complete with all respects thereto. It has rightly been remarked by the appellate Court that no indulgence in execution proceedings can be shown to the petitioner and if they feel that respondents are in possession of excess of the land decreed in their favour, they may have resort to their remedies available under law. The petitionerscould not point out any violation of the judgment of the Honourable Supreme Court and in view of admission of the respondents that they are not willing to keep any part of land in excess of the decree granted to them, no interference in the orders impugned is called for.

9. For what has been discussed above it is obvious that both the Courts below have rightly concluded that no fresh process was issued by the executing Court and execution proceedings having been concluded, were rightly consigned to the record room. Orders impugned are in consonance with the earlier decision. Both the Courts have not committed any illegality or irregularity, emendable to the revisional jurisdiction. This revision petition has no merits in it and is consequently, dismissed with costs.

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