' MAULVI ANWARUL HAQ, J.---On 7-2-2001 Mst. Ruqia Bibi, predecessorin-interest of the petitioners, filed a suit for recovery of her dower against the respondent. The suit was contested. Issues were framed. The suit was decreed vide judgment and decree dated 4-2-2002 by the learned trial Court.
The memo. Of first appeal filed by the respondent was rejected by learned District Judge, Muzaffargarh, on 3-4-2002 as he had failed to pay the court fee as directed by the learned District Judge earlier. Meanwhile on 1-3-2002 the execution petition had been filed. On 31-5-2002 the respondent filed objection that on 19-4-2000 the deceased-lady had obtained an ex parte decree for dissolution of marriage and it was stated in the judgment that the decree is being granted on the basis of Khula and she would not be able to recovery anything from the respondent except her dowry. The objections were opposed. Vide order dated 8-12-2004 the learned Executing Court allowed objections and dismissed the execution petition. A first appeal filed by the petitioners was dismissed by a learned Additional District Judge, Muzaffargarh on 9-3-2005.
2. Learned counsel for the petitioners contends that in the plaint the deceased-lady had specifically mentioned that the decree for dissolution of marriage has been passed on 19-4-2000.
In the written statement, the reply was that the decree has been obtained on the asking of her parents. An objection was taken that because of the said decree, the suit is liable to be dismissed.
Issues were framed. The evidence of the parties was recorded and the suit was decreed and the decree was affirmed. The precise contention is that the matter having been decided in the course of trial and first appeal, the Executing. Court had no jurisdiction to dismiss the execution petition on the basis of the said decree for dissolution of marriage. Learned counsel for the respondent, on the other hand, attacks the merits of the original judgment and decree by stating that in the said judgment no issue regarding his objection was framed and decided. According to him, the said decree being still intact it would constitute a complete bar to the filing of the execution petition.
3. I have gone through the copies of the records. Now I find that the said suit was filed on 7-2-2001 and it was mentioned therein that the said decree has been passed and further that the dower has not been paid. Now I may further note here that the dower constituted a house given to the deceased-lady in lieu thereof and the relief sought was the possession of the house. Now apart from the contents of the written statement referred to by the learned counsel for the petitioners, the case on merits was that the dower has already been paid. Now issues were framed on 9-6- 2001 and the learned counsel for the respondent is right in stating that no issue was framed regarding the said objection of the respondent. Nothing turns on this because the suit remained pending till 4-2-2002 and no issue was claimed. Now I may further note here that the copy of the said judgment and decree was produced as Exh.D.1 in the said suit. Now the deceased lady appeared as P.W.1. In her examination-in-chief again she stated that her marriage was dissolved by the Court through a decree. Now it was suggested to her that a six Marlas plot was purchased for her but she stated that the possession is with the respondent. To similar effect is the statement of P.W.2. Now the respondent himself has appeared as D.W.1 and stated as follows:-- {{URDU TEXT}} ' In his cross-examination, he stated that the plot and the house are in possession of the deceased-lady. However, later he was unable to state as to who is in possession.
4. Now there is no dispute that section 11, C.P.C. Is applicable to the said proceedings. Now it is apparent on the face of the record that the said objection was not pressed before the learned trial Court in the suit filed for recovery of dower and the suit was ultimately decreed.
5. Now coming to the impugned orders, so far as the learned Executing Court is concerned, it has not at all taken note of the said facts. The provisions of the Mulla's Book on Mahomedan Law have been correctly quoted. However, what has been ignored is that despite the said decree, the suit was decreed and the learned Executing Court has no jurisdiction to set aside the said decree.
6. Now the learned Court of first appeal has observed as follows:- "She was estopped under the doctrine of estoppel as well as Court was estopped under doctrine of res judicata as issue of dower was previously decided in first suit."
To my mind, the said observations border on perverse. It is by now well-settled that res judicata does not affect jurisdiction but is a plea which a party can waive. The second rule of law on the subject is that if there are two conflicting decrees, it is the latter which shall prevail. Reference be made to the cases of Rajani Kumar Mitra and others v. Ajmaddin Bhuiya (AIR 1929 Calcutta 163) and Mst. Kaniz Fatma v. Yad Husain and others (AIR 1932 Allahabad 520). The learned Courts below, therefore, had no jurisdiction whatsoever to set aside the decree passed in favour of the petitioners on the said ground. The civil revision accordingly is allowed. Both the impugned orders passed by the learned lower Courts are set aside. The execution petition shall be deemed to be pending before the learned Executing Court who shall proceed further with the execution of the decree. No orders as to costs.