A suit under Section 39 of the Specific Relief Act, for cancellation of sale-deed dated 10.3.1979 had been instituted by Mst. Razia Begum respondent No, 1 against late Dr. Abdul Ghafoor, the predecessor-in-interest of the petitioners. After contest and trial, the same was decreed on 28.4.1998 by the learned trial Court. The judgment was maintained by the appellate Court and C.R.
No, 1469/2003 filed by the successors of late Dr. Abdul Ghafoor was dismissed with certain clarification made in paragraph-6 of the judgment on 14.1.2004. Statedly the matter is now pending before the Hon'ble Supreme Court of Pakistan in the form of C.P. No, 643/2004. The learned counsel for the parties state that there is no stay/restraint order passed by the august Court. That is how the execution of the decree was taken in hand by the executing Court.
2. The first execution petition was filed in the year 1998, which, however, due to the remedies being resorted to by the petitioners, remained pending. It was after the dismissal of the revision petition by this Court on 14.1.2004 that another execution petition was filed by the respondent/decree holder which has given rise to another round of litigation, and the matter again has come before this Court. The warrant of possession ordered by the executing Court was executed on 6.2.2004 and the petitioners were dispossessed. Feeling aggrieved of the execution proceedings, the matters was agitated by the petitioners before the learned District Judge, Lahore, who on 12.2.2004, ordered the withdrawal of the execution petition from the Court of Malik Rehmat Ali, Civil Judge and entrusted the same to Mr. Haider Amin, Civil Judge, where the previous execution petition was pending.
Thereafter the possession was restored to the petitioners. For the sake of brevity un-necessary details of interlocutory proceedings and orders is being avoided and only salient features are being mentioned. The executing Court eventually dismissed the execution petition on 12.5.2004 primarily on the ground's that there was no mention in the decree as to possession and the decree could not be executed against the dead person as the legal heirs of Dr. Abdul Ghafoor, had not been impleaded as party to the execution proceedings. Appeal preferred by Respondent No, 1, thereagainst however, succeeded before the appellate Court which was accepted on 17.8.2004, remanding the matter to the executing Court with the direction that "fresh warrant of possession be issued in favour of the appellant against the respondents/legal heirs of deceased who have been arrayed as judgment debtor in the second execution petition without further delay." This is revision petition thereagainst.
3. The learned counsel for the parties have been heard and material brought on the record has been considered with their assistance.
4. The prime contention of the learned counsel for the petitioners with reference to the decree is that since it is silent about delivery of possession, the execution petition was rightly dismissed by the executing Court. It is contended that para-6 of the judgment of this Court dated 14.1.2004 (C.R.
No, 1469/2003) has been ignored by the appellate Court as unless the entire property was partitioned, warrant for possession for 16 marlas, 38 ft. cannot be issued. According to him there was no plan on the record of the trial Court to identify the precise area. It is contended that the learned appellate Court has acted illegally and with material irregularity by leaving this matter to be dealt by the Bailiff. Reference has been made by him to Ghulam Muhammad vs. Sultan Mahmud and others (PLD 1963 SC 265) and Sardar Ahmed Yar Khan Jogezai and 2 others vs Province of Balochistan through Secretary, C & W Department (2002 SCM R 122).
The learned counsel for the respondenis/decree holders, on the other hand, makes reference to the judgment of the trial Court dated 28.4.1998 and the finding recorded therein qua Issues Nos, 4 and
8. According to him the decree should be construed as consistent with the findings recorded by the Court in the judgment. It is contended that there is no ambiguity either in the judgment or the decree, therefore, possession could be delivered to the decree holder by the executing Court and the learned appellate Court has committed no error or illegality in the matter. According to him the decree holder is being denied the fruits if, the decree on technicalities.
5. There are few settled principles in regard to the execution of a decree such as that; (i) it is the decree drawn by the Court which is executable and not the judgment/findings, (ii) the executing Court cannot go behind the decree; (iii) it must take the decree as it stands and cannot make any alteration or modification therein and (iv) that in case of reversal, modification or alteration of the decree by the Court of last instance, the decree is to be executed accordingly; Reference in this context may be made to Syed Riaz Ahmad Shah and another vs. Dayal Singh College Trust Society and another (1972 SCM R 237), Muhammad Ali vs. Ghulam Sarwar and others (1989 SCM R 640), Mst.
Naseem Akhtar and 4 others vs. Shalimar General Insurance Company Limited and 2 others (1994 SCM R 22), Sardar Ahmad Yar Khan Jogezai and 2 others vs. Province of Balochistan through Secretary, C&W Department (2002 SCM R 122), Ghulam Muhammad vs. Sultan Mahmud and others (PLD 1963 SC 265) Topanmal Chhotamal vs. M/s Kundomal Gangaram and others (AIR 1960 SC 388), and Sunder Das vs. Ram Parkash (AIR 1977 SC 1201). Thus in view of these settled principles, the execution proceedings taken by Respondent No, 1 and the orders passed by the Courts are to be examined.
6. As mentioned above, the suit was decreed on 28.4.1998, the decree that was drawn was to the effect that "It is ordered that the suit of the plaintiff is hereby decreed and the alleged sale-deed dated 10.3.79, is hereby cancelled." This is the decree that was passed by the trial Court. The appellate Court had dismissed the appeal thereagainst on 23.7.2003, maintaining the same decree whereas the revision petition was dismissed by judgment of this Court. It is evident from the perusal of the decree that there I was no mention about grant or delivery of possession. The learned counsel for the respondent decree holder has endeavoured to support the view; taken by the learned Additional District Judge in his judgment dated 17.8.2004 and contends that the decree should be read in the light of the findings recorded by the trial Court in the judgment particularly on Issue No, 4 and it should be deemed that the suit had been decreed as a whole as prayed for. This, however, is not possible without reading something into the decree what is not there. Nothing more can be read into the decree as the same is to be taken as it stands. No doubt, while recording finding on Issue No, 4, the learned trial Court had decided the said issue in favour of the plaintiff/decree holder, but it finds no reflection in the decree. Reference at this juncture may appropriately be made to Ghulam Muhammad's case (PLD 1963 SC 265). In the precedent case a declaratory suit had been filed with a relief of possession. The suit was dismissed by the trial Court and the First Appellate Court, however, second appeal was accepted by the High Court but in the decree drawn although relief of declaration was incorporated nothing was said about the relief of possession. The suit for possession was thereafter filed and was dismissed. That litigation ultimately reached before the Supreme Court of Pakistan and the issue of applicability of principle of resjudicata arose in view of the earlier suit and non mention of relief of possession in the decree.
It was observed that the decree did not ex-facie grant the relief of possession. The suit for possession that had been dismissed by the Courts below was decreed by the Hon'ble Supreme Court of Pakistan. It shows that the sanctity of the gecree remains intact till such time it is corrected, altered or modified by the Court in accordance With law. But so far as the executing Court is concerned, the same is to execute it as it is, subject however, to any modification/alteration therein by the higher forum. In the present case as mentioned above, the decree was silent as to possession. The executing Court thus rightly took the view in his order dated 12.5.2004.
In the facts and circumstances of the case I also find substance in the contention of the learned counsel for the petitioner that an essential function of the Court cannot be entrusted to the Bailiff, who is merely excepted to carryout the mandate given to him by the Court. The appellate Court has thus not acted in accordance with law. The judgment of the appellate Court is, therefore, not sustainable in law which is set aside.
7. The learned counsel for the respondent/decree holder has complained about the delay that has occurred in this case and that the decree holder has not been able to reap the fruits of the decree since long. There is no cavil that there should be expeditious disposal of the matters and the litigants should get justice as expeditiously as possible but in that effort settled principles of law cannot be trampled or ignored. The petitioners cannot be wholly blamed for the delay in the matter.
As a result of the above, the revision petition is accepted with no order as to costs.