Civil Miscellaneous No.1310-C of 2005 SARDAR MUHAMMAD ASLAM, J.--- This is an application seeking review of the judgment dated 20- 10-2004 passed in Civil Revision No.1894 of 2000 on the ground that the applicants were not served and proceeded ex parte on the basis of fictitious report; that the subsequent purchaser Kamran Afzal informed the petitioner of the order passed in this civil revision; and that there was no requirement in law to annex the copy of the decree sheet passed in R.S.A. No.944 of 1978.
2. On the other hand, learned counsel for the respondents placed reliance on F.A. Khan v. The Government of Pakistan PLD 1964 SC 520 and Maulvi Abdul Qayyum v. Syed Ali Asghar Shah and 5 others 1992 SCM R 241 and submitted that it was bounden duty of the Court to prepare the decree sheet while affirming the judgment of the Appellate Court.
3. Heard. Record perused.
4. The regular second appeal was dismissed on 30-10-1985 affirming the judgment of the learned Appellate Court. Execution was filed on 6-12-1994. The respondents moved an application for preparation of the decree and it was prepared as mentioned in paragraph No.5 of the impugned judgment, which is reproduced as under:-- "The R.S.A. No.944 of 1978 was dismissed vide judgment, dated 30-10-1985. Decree was not prepared in the light of the judgment of this Court. It was prepared on 9-8-2000 as is evident from decree sheet placed at page 21 to page 23 of this file. A note has been given to the following effect:-- "This decree sheet is prepared in view of order dated 9-8-2000 of the Additional Registrar (Judicial) passed on the application made by Mr. A.K. Dogar, Advocate on administration side."
The time for execution will run from the date of decree prepared by this Court. The law cited by the learned counsel fully covers the issue raised herein. In this view of the matter, this civil revision is allowed and the impugned judgments passed by the learned Courts below are set aside.
Resultantly, the execution petition shall be deemed to be pending before the learned Executing Court which shall be disposed of in accordance with law."
5. In F.A. Khan v. The Government of Pakistan PLD 1964 SC 520 (supra), it was held that when an appeal is filed the matter becomes sub judice and reheard by the Appellate Court, and even if the Appellate Court affirms the order of the original Court, the only decree or order in existence is the order of the Appellate Court. Support was also sought from the view expressed by the Full Bench of the High Court of Bengal in a case Ram Churn Bysak and another v. Luckhee Kant Bornick and others 16 SWR 1, which ruled that, whether the decree of' the original Court is reversed or modified, or affirmed, the decree passed by the Appellate Court is final decree in the suit; and, the only decree which is capable of being enforced by execution.
6. In Maulvi Abdul Qayyum v. Syed Ali Asghar Shah and 5 others 1992 SCM R 241, the Honourable Supreme Court of Pakistan has held that after affirmation of the decree of the trial Court, decree in existence was only that of Appellate Court and for purpose of execution, rule of merger applies.
7. In view of the above weighty pronouncements, there is no doubt left in any manner that the time for execution will run from the date of decree prepared by the Court, finally. The decree was prepared A. On 9-8-2000, and execution petition was filed prior to it on 6-12-1994, thus, it was within time. The petitioners are judgment-debtors. According to their own showing the property stands transferred to Kamran Afzal. He' has not challenged the judgment impugned herein. There is another aspect of the case, which needs attention. The judgment passed on 24-6-2000 in execution civil appeal indicates that the pre-emptor has deposited the decretal amount within time in accordance with the judgment of the Appellate Court. On such deposit, the decree-holder is vested with the title of the property. In case decree-holder is in possession he may not seek the execution of the decree and make an application before the Revenue functionaries for sanction of mutation of his name in place of the judgment-debtor. Reference can be had to Dr. Niaz Muhammad Mann and others v. Sh. Muhammad Ahmad and another 1988 SCM R 1016.
8. No illegality or jurisdictional error' or discovery of new And important fact or error apparent on the face of the judgment has been pointed out attracting mischief of provisions of Order 47, rule, 1, C.P.C.
9. For what has been discussed above, this petition having no force is hereby dismissed.