SALIM KHAN, J.---This judgment will dispose of the below mentioned 21 writ petitions as the broad facts, the applicable laws, and the main legal questions involved in them are common. These have arisen out of the awards for lands of the same area, and the petitioners of these writ petitions are demanding the same benefits which have been granted to the parties (appellants or respondents) of other objection petitions/appeals coming out of the same awards. The main facts leading to the filing of execution petitions by the present petitioners, their dismissal, their filing appeals, and, after withdrawing the appeals against the orders of the Executing Court, their filing the present writ petitions, are that some lands were acquired in the area of Mauza Kotnajibullah of District Haripur vide awards Nos.2, 3, 7,
8. Then R.F.A. No.3 of 1992 titled Sarhad Development Authority v. Sardar Fakhr-e-Alam and others R.F.A. No.9 of 1992, R.F.A. No.11 of 1992, R.F.As. Nos.24 of 1992, 25 of 1992, 56 of 1992, 64 of 1992, 77 of 1992 and 81 of 1992 were filed when the objection petitions of landowners, other than the petitioners of these writ petitions, were decided. The matter then went to the august Supreme Court of Pakistan, and, vide judgment and order, dated 23-1-2001, the august Supreme Court of Pakistan dismissed the Appeals Nos.1449 to 1460 of 1999. A review petition was also submitted but the same was also dismissed by the august Supreme Court. It is contended that F.A.O. Nos.7 to 10 of 2003 were also decided on 13-5-2004 where compulsory acquisition charges at the rate of 15% under section 23(2) of the Land Acquisition Act and simple interest at the rate of 6% were allowed.
2. Then the petitioners filed their respective execution petitions. The learned Referee Court/Presiding Officer Executing Court dealt with these execution petitions, first the mind was given that the execution petitions on the basis of decree in favour of other persons, specially in R.F.A. No.25 of 1992 and R.F.A. No.56 of 1992, were executable and the petitioners were to get benefit of the decision given in favour of other landowners, on the ground that the petitioners were similarly placed persons and were entitled to the same benefits to which the other were declared entitled. But then the learned Presiding Officer of the Executing Court, vide his judgments and orders, impugned in these writ petitions, dismissed the execution petitions. The petitioners of different writ petitions before us filed their respective first appeals against orders, but, after discussion in the Court, they were constrained to withdraw the appeals and to file writ petitions.
Hence the present writ petitions before us.
3. The individual exclusive facts of each of these writ petitions are given as below:
(i) Writ Petition No.49 of 2005 Shafqatullah and others v. Collector and others. The land of the petitioners was acquired, along with the lands of other owners, vide Award No.2 dated 22-6-1988.
Faqir Muhammad, predecessor-in-interest of the petitioners filed, objection petition which was dismissed vide judgment and decree, dated 13-5-1992 of the learned District Judge/Referee Judge, Haripur. No further appeal was filed by the petitioners or their predecessor-in-interest. On the basis of decrees in R.F.As. Nos.3 of 1991, 56 of 1992, 64 of 1992, 77 of 1997 and 81 of 1992, Faqir Muhammad filed Execution Petition No.6/10 before the Executing Court, where it was decided that the execution petition was not maintainable, because no decree was passed in favour of the petitioners. It was contended by the petitioners that Execution Petition No.8/10 (Sardar Shaukat v. Collector) showed that the objection was only with regard to the amount assessed by the decree-holder in Goshwara and the learned Executing Court had directed the respondents for deposit of decretal amount. The petitioners further referred to the case of Gulab Khan v. Collector and contended that the order of the learned Executing Court was incorrect, where it was held that there was no decree in favour of Gulab Khan or the petitioner. The petition of Faqir Muhammad was dismissed on 20-9-2004. The petitioners filed appeal before this Court, which was withdrawn, and the present writ petition was filed.
(ii) Writ Petition No.51 of 2005 Gulab and others v. Land Acquisition Collector, Haripur and others.
The land was acquired by the Collector, Haripur vide Award No.3, dated 26-6-1988 and Award No.7 dated 27-6-1990, the property of the present petitioners was also included in the said awards. The other main facts have been mentioned above. The petitioners had not filed any objection petition or the first or second appeal. Relying on the judgments in R.F.As. Nos.9 of 1992, 11 of 1993 and others, the petitioners filed Execution Petition No.5/10 dated 23-6-2000 before the District Judge, Haripur/the Executing Court. Their petition was first accepted on 16-3-2000 and the respondents were directed to make the payment to the petitioners, but later on, the learned Additional District Judge, Haripur/the Executing Court dismissed the petition vide his order, dated 28-10-2004 on the ground that there was no decree in favour of the petitioners, and the Executing Court did not have authority to execute the prayer without any decree.
(i.e) Writ Petition No.97 of 2005 Qazi Muhammad Afzal and others v. Collector and others. Certain lands were acquired vide Award No.2 dated 22-6-1988. The petitioners had not filed any objection petition. The ground of the petitioners is that petitioners Nos.1 to 5 were minors while petitioner No.6 was a Pardanashin lady. The other facts are common as narrated above. The petitioners filed Execution Petition No.18/10 on the ground that the benefit of R.F.A. No.25 of 1992, dated 3-2-1999 and No.56 dated 4-2-1999 be extended to the petitioners/landowners. The said petition was dismissed vide judgment and order dated 20-9-2004. The petitioners filed appeal which was allowed to be withdrawn, hence the present writ petition.
(iv) Writ Petition No.98 of 2005 Qazi Shafahat Ahmad and others v. Collector and others. The petitioners contended that certain land in Kotnajibullah, including the land of the petitioners, was acquired vide Award No.2, dated 22-6-1988. The petitioners filed Objection Petition No.9/4 along with other Petitions Nos.4/4, 34/4, 35/4 and 38/4 against the said award but those were dismissed on 25-4-1992. The petitioners did not file any appeal while the others continued with the litigation upto the august Supreme Court of Pakistan, where decision was given in Civil Appeals Nos.1449 to 1460 of 1999. F.A.O. Nos.7 to 10 of 2003 were also decided on 13-5-2004, whereby compulsory acquisition charges at the rate of 15% and interest at the rate of 6% were allowed. The petitioners filed Execution Petition No.19/10 on the ground that they were entitled to the benefit of judgments/decrees in R.F.As. Nos.25 of 1992 and 56 of 1992. But, the learned Executing Court dismissed the execution petition on 20-9-2004, on the ground that there was no decree in favour of the petitioners. An appeal was filed, which was withdrawn by the petitioners, and the present writ petition was filed.
(v) Writ Petition No.114 of 2005 Abdur Rehman's and others v. Collector and others. The petitioners contended that certain land in Kotnajibullah, including the land of the petitioners, was acquired vide Award No.2, dated 22-6-1988. The petitioners filed Objection Petition No.3/4 along with other petitioners which was dismissed on 28-3-1992. The petitioners did not file any appeal while the litigation of other landowners continued upto the august Supreme Court of Pakistan, where final judgment was given in C.Ps.Nos.1449 to 1460 of 1999. The petitioners claimed benefit of judgment in R.F.A. No.25 of 1992 and No.56 of 1992. But the learned Executing Court dismissed the Execution Petition No.10 of 2002 of the present petitioners on the ground that there was no decree in their favour. They filed appeal before this Court, which was withdrawn, and the present writ petition was filed.
(vi) Writ Petition No.115 of 2005 Mst. Janat Khatoon and others v. Collector and others. The petitioners contended that their lands, along with the other lands, situated in Kotnajibullah were acquired vide Award No.2, dated 22-6-1988, and that the objection petition of the present petitioners was dismissed on 5-9-1992, but the petitioners did not file any appeal against the same. They were of the view that the benefit of judgments in R.F.A. No.25 of 1992 and No.56 of 1992 was extendable to them, hence, they filed Execution Petition/Application No.44/6, dated 19-6-2002.
But the same was dismissed vide order, dated 20-9-2004. The appeal filed by the petitioners through F.A.O. No.13 of 2005 was withdrawn, and the present writ petition was filed.
(vii) Writ Petition No.116 of 2006 Sardar Muhammad Bakhsh and others v. Collector and others. The petitioners contended that their land, along with the land of others, was acquired vide Award No.8 dated 27-6-1990, that the petitioners filed Objection Petition No.16/4, which was dismissed on 27-6- 1993, but the petitioners did not file any appeal. They contended that the benefit of R.F.A. No.74 of 1993 was extendable to them, hence, they filed Execution Petition/Application No.52/6, which was dismissed on 20-9-2004. The petitioners filed F.A.O. No.13 of 2005 which was withdrawn, and the present writ petition was filed.
(viii) Writ Petition No.117 of 2005 Mian Dad and others v. Collector and others. The petitioners were of the view that their land, along with the land of other landowners, was acquired vide Award No.2 of 1988. The Objection Petition Nos.5/4, 11/4 and 30/4 along with other petitions against the same award were dismissed. The petitioners did not file any appeal. The cases of other landowners went up to the august Supreme Court of Pakistan, where judgment was granted in Civil Appeals Nos.1449 to 1460 of 1999 (judgment reported as PLD 2001 SC 405). The petitioners filed Execution Petition No.4/10 on the strength of R.F.As. Nos.25 of 1992 and 56 of 1992, claiming the benefit of decrees in the said cases. The Execution Petition No.4/10, however, was dismissed on 20-9-2004, the appeal was withdrawn by the petitioners, and the present writ petition was filed.
(ix) Writ Petition No.118 of 2005 Abdul Malik and others v. Collector and others. The petitioners contended that their lands, along with the lands of other co-owners, situated in Kotnajibullah were acquired vide Award No.2 of 1988, that Objection Petition No.12/4 was filed by the petitioners but, on its dismissal, the petitioners did not file any appeal, however, the other landowners and the respondents went up to the august Supreme Court of Pakistan where final judgment was granted as aforementioned. The petitioners filed Objection Petition No.7/10 on the strength of R.F.As. Nos.25 of 1992 and 56 of 1992. But the execution petition was dismissed on 20-9-2004. The petitioners first filed appeal, which was withdrawn by them, and the present writ petition was filed.
(x) Writ Petition No.130 of 2005 Gohar Rehman's and others v. Collector and others. The petitioners referred to Award No.2 of 1998 regarding their lands, their Objection Petition No.36/4 which was dismissed, the litigation of the other landowners, the Execution Petition No.14/10 of the petitioners, their appeal and its withdrawal, and the filing of the present writ petition. The other facts of the case are the same as mentioned for the other above mentioned cases.
(xi) Writ Petition No.131 of 2005 Sardar Muhammad Nawaz and others v. Collector and others. 23 Kanals land in Khasra No.4773 in Kotnajibullah owned by the petitioners was acquired by the Collector Land Acquisition vide Award No.2 dated 22-6-1988. The petitioners did not file any objection petition while the other landowners litigated as mentioned above, while giving detailed facts. The petitioners filed Execution Petition No.13/10 dated 12-12-2002 claiming the benefit of R.F.A.
No.56 of 1992. The same was rejected by the Additional District Judge/Executing Court vide judgment and order dated 20-9-2004. The petitioners filed appeal, but this Court allowed the petitioners to withdraw the same, and they filed the present writ petition.
(xii) Writ Petition No.132 of 2005 Makkan v. Collector and others. The only difference between the present writ petition is that the objection petition filed by him was shown as No.3/4 and the Execution Petition as No.7/10. The other facts of this writ petition are similar with the other cases.
(xiii) Writ Petition No.133 of 2005 Ghulam Sarwar and others v. Collector and others. The Award number of the petitioners is No.3 of 1998. The petitioners did not file any objection petition or appeal. They submitted Execution Petition No.10/10 on the strength of judgment and decree in R.F.A.
No.24 of 1992 dated 4-2-1979. But their execution petition was dismissed, their appeal was withdrawn, and they filed the present writ petition.
(xiv) Writ Petition No.134 of 2005 Muhammad Shafi v. Collector and others. The petitioner contended that his land was acquired vide Award No.3 of 1988. He filed Objection Petition No.3/4 of 1992 for land measuring 19 Kanals, 14 Marlas in Khasra No.2363 situated in Kotnajibullah, the objection petition was dismissed, but the petitioner did not file any appeal. He relied on the litigation of other landowners and filed Execution Petition/Application No.1/6 claiming therein that he was entitled to the benefit of judgment and decree in R.F.A. No.24 of 1992. But the execution petition was dismissed.
The petitioner filed but withdrew his appeal, and filed the present writ petition.
(xv) Writ Petition No.139 of 2005 Miskin v. Collector and others. The petitioners claimed the acquisition of his land through Award No.2 of 1988. He further contended that his Objection Petition No.34/4 was dismissed but he did not file appeal. He filed Execution Petition/Application No.9/6 on the strength of R.F.A. No.56 of 1994, but the same was dismissed on 20-9-2004. The appeal of the present petitioner was withdrawn by him and he filed the present writ petition.
(xvi) Writ Petition No.140 of 2005 Muhammad Nawaz and others v. Collector and others. The case of the petitioners is the same to the extent of Award No.2 and the common details given above. His Objection Petition is No.33/4 and his Execution Petition/Application is No.21/6. On withdrawal of his appeal, he filed the present writ petition.
(xvii) Writ Petition No.141 of 2005 Muhammad Gulzar and another v. Collector and others. The case of the petitioners was the same to the extent of Award No.2, the litigation of the other landowners, but their Objection Petition number was 35/4 while their Execution Petition number was 21/6. The fats of dismissal of the same, the filing and withdrawal of appeal, and the filing of the present writ petition are the same as in other cases.
(xviii) Writ Petition No.142 of 2005 Sardar Muhammad Nawaz and others v. Collector and others. 20 Kanals, 10 Marlas land situated in Kotnajibullah, owned by the petitioners, was acquired vide Award No.3 dated 22-6-1988 by the Collector Land Acquisition. The petitioners did not file objection petition. The other landowners continued their litigation as per detail mentioned above. The petitioners filed Execution Petition No.12/10 dated 12-12-2002, claiming the benefit of the judgment in R.F.A. No.24 of 1992 dated 4-2-1999. That execution petition was dismissed by the learned Additional District Judge, Haripur/ Executing Court on 20-9-2000 on the ground that there was no decree in favour of the petitioners. An appeal was filed by the petitioners in this Court, which was withdrawn on 30-3-2005, and the present writ petition was filed.
(xix) Writ Petition No.143 of 2005 Muhammad Sadiq and others v. Collector and others. The objection petition of petitioners is shown as 9/4 and the number of Execution Petition/Application is 6/6, while the Award number is 2 of 1988. The other facts till filing of the present writ petition are common with others
(xx) Writ Petition No.144 of 2005 Mehboob Elahi and others v. Collector and others. The same is the position of the case of these petitioners, except that their Objection Petition number is shown as 35/4, while Execution Petition/Application number is 12/6 of 2002.
(xxi) Writ Petition No.145 of 2005 Mst. Mumtaz Bibi and others v. Collector and others. Mst. Mumtaz Bibi and others contended that their Objection Petition was No.38/4 and their Execution Petition was No.14/10. The other details given by them are the same as in other writ petitions.
5(sic). We heard the arguments of the learned counsel for the respective parties and perused the record. The learned counsel for the petitioners, while arguing the different writ petitions as mentioned above, referred to 1965 SC 382; PLD 1979 SC 599; PLD 1986 SC 188; PLD 1990 SC 361; 1996 SCMR 1185; 1996 CLC 1640; 1998 SCMR 2197; 1999 SCMR 2009; PLD 1999 SC 592; PLD 2000 SC 263; 2002 SCMR 72; PLD 2005 Kar. 164; 2006 SCMR 688 in support of their arguments. The learned counsel for the respondents, on the other side, referred to PLD 1965 SC 37; PLD 1976 Lah. 15; PLD 1976 Kar. 793; PLD 1977 SC 599; 1997 SCMR 1692; PLD 1999 SC 250; 2005 MLD 768 and 2005 MLD 1140 in support of their arguments.
6. The basic questions, which were taken up by the learned counsel for the parties, were argued at the initial stage, which are that whether the writ petition was maintainable in the circumstances of the cases in hand, whether third party could be impleaded in execution proceedings, and whether question of compensation could be decided in a writ petition. The learned counsel for the respondents relied on 1995 CLC 548; PLD 1997 (AJ&K) 33; 2000 YLR 2016; 1996 MLD 1399 and 2005 MLD 768. The present petitioners had filed appeals against the judgments and orders of the learned Presiding Officer of the Executing Court, but the same were withdrawn, after discussion in the Court. Some of the counsel for the petitioners contended that the petitioners were advised by the Court during the arguments that they should withdraw the appeal and file writ petitions. They further contended that the act or order of the Court could not prejudice a party.
7. In fact, the appeals were against the judgments and orders of the Presiding Officer of the Executing Court, and the discussion hereinafter will reveal that the fate of those appeals would be dismissal. The reason for the same is that, as to be clarified later on, it was to be seen whether the Executing Court could go beyond and behind the decree and could add parties to the execution petitions, who were not parties to the main cases, in which the decrees before the Presiding Officer of the Executing Court for the execution were passed. The writ petition has its own peculiarities. The Court can direct a person to do something which he is required by law to do, or to avoid doing something which is prohibited by law. The filing of writ petitions in the circumstances of these cases, was the proper course. The Court cannot decide the question of compensation and cannot enhance the compensation while dealing with a writ petition. But, the Court can direct the concerned persons or authorities dealing with the fixation and enhancement of compensation, in the light of Article 199 of the Constitution of Islamic Republic of Pakistan (hereinafter referred to as "the Constitution") to act in accordance with law and to avoid acts not permitted by law. Such persons or authorities shall, in consequence of a decision in a writ petition, have to take up proceedings for proper fixation or proper enhancement of the compensation and for the related matters.
8. While dealing with the provisions of Order XLI, rule 33 read with subsection (2) of section 107 of the Code of Civil Procedure, 1908 (hereinafter referred to as "the Code"), or with the provisions regarding execution, the proposition whether a third party can or cannot be impleaded in execution proceedings, along with the question whether a party who received compensation without protest, and did not file objection petition, can claim enhancement in compensation will be discussed. The question whether the judgments in land acquisition cases are judgments in personam and are not judgments in rem and whether a party filing reference only can get benefit of the decree will also be discussed. The learned counsel for the parties discussed in detail the relevant provisions of law regarding execution proceedings.
9. Section 38 and Order XXI of the Code deal with execution of decrees. Section 38 provides that a decree may be executed either by the Court which passed it, or by the Court to which it is sent for execution. Order XXI prescribes the mode, manner, processes and proceedings regarding execution of a decree. Rule 10 of the abovesaid Order provides that where the holder of a decree desires to execute it, he shall apply to the Court which passed the decree or to the officer (if any) appointed in this behalf, or, if the decree has been sent under the provisions of rules 5 to 9 of the said Order to another Court, then to such Court or to proper Officer thereof. Sub-rule (2) of rule 11 of the order provides that save as otherwise provided in the case of a decree for the payment of money where the immediate execution thereof has been asked for by the arrest of the judgment- debtor, every application for the execution of a decree shall be in writing, signed and verified by the applicant or by some other person proved to the satisfaction of the Court to be acquainted with the facts of the case, and shall contain in a tabular form the particulars as mentioned therein. It means that the execution proceeding shall be initiated on a written application on prescribed form.
10. The word "decree" has been defined in section 2(2) of the said Code which means the formal expression of an adjudication which, so far as regards the Court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit and may be either preliminary or final. It shall be deemed to include the rejection of a plaint, the determination of any question within section 144, and an order under rules 60, 98, 99, 101 or 103 of 'Order XXI but shall not include,
(a) any adjudication from which an appeal lies as an appeal from an order, or
(b) any order of dismissal for default.
It is explained that a decree is preliminary when further proceedings have to be taken before the suit can be completely disposed .Of. The decree is final when such adjudication completely disposes of the suit. It may be partly preliminary and partly final.
11. The word "decree-holder", according to section 2(3) of the Code means any person in whose favour a decree has been passed or an order capable of execution has been made. The word "judgment-debtor", according to section 2(10) of the Code means any person against whom a decree has been passed or an order capable of execution has been made. Section 26 of the Land Acquisition Act, 1894 (I of 1894) provides that every award shall be in writing, signed by the Judge, and shall specify the amount awarded as mentioned therein, along with the grounds of awarding each of the abovesaid amounts. It further provides that every such award shall be deemed to be a decree and the statement of the grounds of every such award to be a judgment within the meaning of section 2 of the Code.
12. An Executing Court, therefore, must have an application in writing as prescribed by rules 10 and 11 of the Order XXI of the Code before it in order to execute decree, formally expressed by the Court, conclusively determining the right of the parties. A third party, not party to proceedings of suit or appeal in which decree has been passed, is not and cannot be made a party to execution proceedings. A person, who has a cause of action, only can move a Court of law to initiate legal proceedings. A landowner who receives the awarded compensation without a protest, relinquishes his right to claim enhancement of compensation, and stands estopped by his own conduct. He loses his cause of action, and cannot, at a later stage, ask for the enhancement of compensation of his lands. An Executing Court being corum non judice has no power and authority to go beyond or behind the decree, and has to remain within the limits prescribed by the decree in respect of the rights and liabilities of the parties. Such a Court has no power or authority to make any modification, change, deletion, alteration, insertion or addition in a decree. The parties before such Executing Court, for the purposes of the execution of a decree before it, are the decree-holder and the judgment-debtor only, except the objector, who may come forward during the proceedings for the purposes of execution of a decree and who may object to certain processes or proceedings by that Court concerning certain property or, person regarding whom such objector has his own claims. No other person can be joined as a party to such proceedings by the Executing Court.
13. The Land Acquisition Act, 1894 (hereinafter referred to as the "Act"), has its own complete concept, scheme and system for the acquisition of lands etc. For the processes and proceedings regarding acquisition, for the decision of disputes regarding the same, and for other related matters. The said Act presupposes that the Provincial Government has the first right to use the lands situated within the limits of the Province, and the governing authority of the area, where there is no Provincial Government, in the light of the provisions and the contents of General Clauses Act and the Constitution, has the first right to use the land within that area. This Act supposes that the landowners in such areas are only the owners of the right to use the lands, but subject to the superior right of ownership of the Provincial Government; or as the case may be, the governing authority of the area.
14. Keeping in view this concept, section 4 of the Act provides that wherever it appears to the Provincial Government that land in any locality is needed or is likely to be needed for any public purpose, a notification to this effect shall be published in the official Gazette, and the Collector shall cause public notice of the substance of such notification to be given at convenient places in the said locality. The publication of such notification is the basis for further proceedings of acquisition of land. Award is then prepared which shall become final and conclusive evidence of the true area and value of the land and the apportionment of the compensation money to the persons interested in the said land. The Collector has to give immediate notice of his award to such of the persons interested as are not present personally or by their representatives when the award is made.
15. Part-III, including section 18 of the Act, deals with reference to the Court and procedure thereon.
Section 18 provides that any person, who has not accepted the award, may by written application to the Collector require the matter to be referred by the Collector for the determination of the Court whether his objection be to the measurement of the land, the amount of compensation, the persons to whom it is payable, or the apportionment of the compensation among the persons interested. It is provided there that the applicants shall state the grounds on which objection to the award is taken, and if the person making it was present or represented before the Collector at the time when he made his award, such application shall be made by such person within six weeks from the date of Collector's award and in other cases, within six weeks of the receipt of the notice from the Collector under section 12(2) of the Act, or within six months from the date of Collector's award, whichever period shall first expire. The Provincial Government has also been authorized to file objection petition as a person has been authorized as mentioned above.
16. Section 53 of the said Act provides that the provisions of the Code shall apply to all the proceedings before the Court under the said Act, save in so far as they may be inconsistent with anything contained in the Act. It has been provided in section 54 of the Act that subject to the provisions of the Code applicable to appeals from the original decrees, and notwithstanding anything to the contrary in the enactments for the time being in force, an appeal shall only lie in any proceedings under the Act to the High Court from the award or from any part of the award of the Court, and, from a decree of High Court passed on such appeal as aforesaid, appeal shall lie to the Supreme Court, subject to the provisions contained in section 110 of the Code and in Order XLV thereof. No revision is allowed under the provisions of the abovesaid Act and the scope of the appeal has also been clearly prescribed as mentioned above.
Section 107 of the Code deals with provisions relating the appeals and provides that subject to such condition and limitation as may be prescribed, an Appellate Court shall have power:--
(a) to determine a case finally;
(b) to remand the case;
(c) to frame issues and refer them for trial;
(d) to take' additional evidence or to require such evidence to be taken.
Subsection (2) of section 107 provides that subject as aforesaid, the Appellate Court shall have the same powers and shall perform as nearly as may be, the same duties as are conferred and imposed by the Code on Courts of original jurisdiction in respect of suits instituted therein.
17. An appeal to a Court is like a complaint filed to the Appellate Court with the allegations that the applicant has not been treated in accordance with law by the Court of original jurisdiction or that an illegality or material irregularity or mis-exercise or non-exercise of jurisdiction has been committed in his case. The Appellate Court is required to check the whole record in the light of such complaint/ (appeal) and has to see whether the jurisdiction was properly exercised; whether evidence was properly read; and whether the law and rules were properly applied in the circumstances of the case before the Court.
18. Order XLI, Rule 33 of the Code mentions the powers of the Court of appeal to the effect that the Appellate Court shall have power to pass any decree and make any order which ought to have been passed or made and to pass-or make such further or other decree of order as the case may require, and this power may be exercised by the Court notwithstanding that the appeal is as to part only of the decree and may be exercised in favour of all or any of the respondents or parties, although such respondents or parties may not have filed any appeal or objection. The words "respondents or parties" are significant and important for the purposes of the abovesaid rule 33.
The Court has the jurisdiction and power to exercise the power to pass any decree and make any order as mentioned above in favour of all the respondents, or in favour of any of the respondents, or in favour of all the parties or in favour of any of the appellants. The word "party" for the purposes of legal proceedings means a person litigating on one side with certain claim or pleas, or a person litigating on the other side with opposing pleas or claims. Generally a plaintiff, an applicant, a petitioner, a complainant or an appellant is one party, while the defendant, the respondent or the accused is another party for the purposes of litigation in cases.
19. The word "parties" includes the persons on both the sides including the complainant as well as the accused, the plaintiff as well as the defendant, the applicant/petitioner as well as the respondent and the appellant as well as the respondent. The word "appellant" means the person, who has gone in appeal against a decree or order of a Court to the Appellate Court, while the word `respondent" means the person, who is expected to respond or does respond to the application/complaint/ petition/suit/appeal. The word "respondents" as mentioned in the above- referred rule 33 or Order XLI means the persons who are expected to respond, or they do respond, to the appeal while appellant as well as respondent are included in the word "parties". No stranger to the proceedings before the Appellate Court is included in the above mentioned words and no one can claim that an order or decree has been passed in his favour or against him, if he is not either the appellant or the respondent in the case, or as per requirements of the circumstances, he should have been a party as a proper or necessary party to the proceedings but was not joined as such, and a decree or order adverse to his interest has been passed, which has aggrieved him. In the light of the above, the Appellate Court has the power to grant decree or order only in favour of all or some pf the respondents or the parties, and have no power to grant such decree or order in favour of, or, even against the persons who are strangers to the proceedings before it. A person who filed reference or a person who was a respondent or party to an appeal can, therefore, claim the benefit of a decree passed in such proceeding. The persons, whose cases were not before the Court for adjudication, therefore, do not have any right to claim enhancement of compensation, through the execution petitions, on the basis of the decree passed as aforesaid.
20. Article 4 of the Constitution provides that to enjoy the protection of law and to be treated in accordance with law is inalienable right of every citizen wherever he may be, and of every other person for the time being within Pakistan, and in particular, no action detrimental to life, liberty, body, reputation or property of any person shall be taken except in accordance With law. No person shall be prevented from or be hindered in doing that which is not prohibited by law, and no person shall be compelled to do that which the law does not require him to do.
21. Article 23 of the Constitution provides that every citizen shall have the right to acquire, hold and dispose of property in any part of Pakistan subject to the Constitution and any reasonable restriction as imposed by law in the public interest. The provisions of Article 25 of the Constitution are that "All citizens are equal before law and are entitled to equal protection of law....". Hence, all persons similarly placed have equal rights and when certain rights are declared available to one or more of such persons, all the other persons similarly placed with them stand declared entitled to such rights. It will be sheer discrimination. It such persons are denied equal rights, and will be contravention of the provisions of Article 25.
22. Article 189 of the Constitution provides that any decision of the Supreme Court shall, to the extent that it decides a question of law or is based upon 'or enunciates a principle of law, be binding on all other Courts in Pakistan, while Article 190 thereof provides that all Executive and Judicial Authorities throughout Pakistan shall act in 'aid of the Supreme Court. Article 201 of the Constitution provides that, subject to Article 189, any decision of a High Court, to the extent that it decides a question of law or is based upon or enunciates a principle of law, shall be binding on all Courts subordinate to it. The three conditions for binding status of a decision of the Supreme Court of Pakistan or a High Court are that such decision (i) has decided a question of law or (ii) is based upon a principle of law or (i.e) has enunciated a principle of law. No law in Pakistan is enforceable and applicable in the form other than the one in which it is interpreted by Supreme Court or a High Court. These Courts are the highest Courts of law in the State, and each and every judicial decision of these Courts is covered by one or other of above-mentioned three conditions, and hence has a binding force.
23. Ordinarily judgments in Land Acquisition Cases, like many other cases, are judgments in personam when the rights and liabilities of the parties thereof are only decided in accordance with law. But, when either a law is interpreted, or a principle of law is expounded, or certain' facts are generally declared covered by some law or by some principle of law, justice or equity, these judgments, to the extent of the above, become judgments in rem also. When either the classification of the land or the value of the land acquired is generally changed, such judgments assume the status of judgments in rem, because certain facts are generally declared covered by some law, and all the similarly placed persons become entitled to the benefit of the same.
24. The State, the Government and the authorities and bodies under them being the protectors of the rights of citizens are duty bound to ensure that not only such rights remain protected, but are also provided to the citizens.
25. Section 18 of the Act provides that the highest period of six months to a party/interested person to whom a notice has not been issued by the Collector. Section 48 of the Code provides a period for presentation of an application for executing the decree. Article 162 of the second schedule of the Limitation Act provides that a petition for review of judgment by a High Court in the exercise of its original jurisdiction would be 20 days. Article 173 of the same schedule provides 90 days period for a review of judgment, except in the cases provided in Article 161 'and Article 162 from the date of the decree or order. Article 181, however, provides a period of three years when the right to apply accrues for the purposes of applications for which no period of limitation has been provided elsewhere in the schedule or by section 48 of the Code.
26. The cases of the petitioners neither fall under section 18 of the Land Acquisition Act nor under section 48 of the Cede nor under any other Article of the Limitation Act as no period has been provided therein. In fact, the eventuality, arising out of the decisions in cases in which either the nature and classification of the property under award has been general changed by the Court or in which awarded compensation has generally been enhanced or fixed, had not been visualized. In the circumstances of the cases in hand, the provisions of Article 181 mentioned above would be applicable. The original award merges into decision/decree in such cases, and amounts to fresh announcement of the award in its modified form.
27. In the light of the above discussions, we hold that the petitioners, being strangers, and not respondents or parties, to the appeals mentioned above are not directly entitled to the benefits of the decrees in such appeals, unless they prove themselves similarly aced with the persons in whose favour such decrees have been granted. The petitioners, therefore, are not the decree- holders and have no right to file execution petitions on the basis of such decrees. But, as the decree which has enhanced the compensation generally takes the original award merged in itself and gives it the form of a fresh award from the date of such decree, the landowners, who may be able to prove themselves similarly placed with the decree-holders, including those landowners who received the original compensation without protest or have not filed appeals, assume fresh cause of action on the. Announcement of such decrees. They may, therefore, file objections to the Collector, in the cases of those landowners who had not filed objection petitions originally, or file review petitions to the learned Referee Judge, in the cases of those landowners whose objection petitions were dismissed but they had not filed appeal and were not respondents in the appeals of other landowners affected by the same award. The provisions of Article 181 of the Schedule of the Limitation Act, 1894 shall be applicable in their cases.
28. In the circumstances that the petitioners lost time in litigation or otherwise due to non-clarity of the law regarding their cases, we condone the delay in their cases, and we allow them a further period of ninety days from the date of announcement of this judgment to file objection petitions or, as the case may be, to file review petitions as aforesaid. We also direct the concerned Collector/s and the learned Presiding Officer of Court for the land acquisition cases to deal with the objection petitions/review petitions, as duly filed fresh petitions, under the law, and to decide them according to their respective merits.
Announced.