MUHAMMAD NAWAZ ABBASI, J.-- These two direct cross Civil Appeals bearing Nos. 342 of 2O0O and 351 of 2000, filed under Article 185(2)(d) of the Constitution of Islamic Republic of Pakistan by the parties against the judgment dated 19.1.2000 passed by Lahore high Court, Lahore in Regular Second Appeal No. 47 of 1996 are hereby disposed of through this Constitutional judgment. The appellants namely Syed Ishaque Hussain Rizvi, deceased through Syed hassan Abbas Rizvi and others (in Civil Appeal No. 342 of 2000) and Sheikh Mubarik Ali and others (in Civil Appeal No. 351 of 2000) will be called as appellants and respondents respectively, in this judgment.
2. The facts leading to the filing of above appeals are that the land measuring 349 Kanals, 19 marias was allotted to Respondents Nos. 3 & 4 (Syed Ihtisham Ali Rizvi (deceased) and Syed Haider Abbas Rizvi), in Chak No. 34/RB District Sheikhupura. The allottees prior to the acquisition of proprietary rights, entered into an agreement dated 18.9.1991, of sale of land with respondents Nos. 1 & 2 (Sh. Mubarik Ali & Mst. Naimat-uh-Nisa Begum (deceased) and subsequently, they also on 1.1.1970 entered not a sale agreement of the same land with the appellants through their attorney, Mst. Shamim Akhtar, wife of Ishaq Hussain. The respondents Nos. 1 & 2 on coming to know about this subsequent agreement filed a suit on 26.12.1970 and later the parties in the suit entered into a compromise on the basis of which, decree was passed in the suit on 25.2.1977 in the following terms:-- {{ URDU TEXT MISS }}
3. Subsequent to the disposal of the above suit, Respondents Nos. 3 & 4, on 30,7.1980, entered into an agreement of sale of their l/3rd share in the land with Respondents Nos. 1 & 2 and on failure of sellers to give effect to the agreement, the buyers filed a suit for specific performance of the agreement with possession of land including the land which fell to their share under decree dated 25.2.1997 and pending adjudication of this suit, Respondents Nos. 3 & 4 on 13.1.1986, executed as sale- deed in favour of the appellants whereupon respondents Nos. 1 & 2 by way of amendment in the suit, added the relief of cancellation of sale-deed. The learned Trial Judge, however, decreed the suit to the extent of l/3rd share of Respondents Nos. 3 & 4 in the land vide judgment dated 22.12.1991 but on appeal filed by both the parties, a learned . Additional District Judge, Sheikhupura, vide judgment dated 19.12.1995, allowed the appeal of the respondents and decreed their suit in full whereas the appeal of the appellants was dismissed. However, in second appeal filed by the appellants in the High Court, the learned Judge in chamber while modifying the judgment of the Appellate Court, dismissed the suit to the e>dent of l/3rd share of respondents Nos. 3 & 4 in the land holding the agreement dated 10.7.1980 as void.
4. Learned counsel for the appellants contends that this is settled law that all questions arising between the parties or their representatives in the suit in which decree was passed must be determined by the executing Court in terms of Section 47, CPC for the satisfaction of decree and a separate suit is not maintainable but in the present case all the three Courts erred in law in holding that suit being not barred by the provisions of Section 47, CPC was competent. Learned counsel next argued that the learned Judge in the High Court having. Rightly come to the conclusion that the' agreement dated 10.7.1980, subject-matter of suit, was void, was misled in holding that the appellants were not bona i.e purchasers. The last contention of the learned counsel was that the appellants were not party in the earlier suit and consequently, the transaction of sale of land in their favour made by the original allottee vide sale-deed dated 13.1.1986, during the pendency of suit, would not be hit by the principle of lis pendens.
5. Learned counsel for the respondents on the other hand (appellants in the cross appeal), contended that the High Court was mis-directed in law in coming to the conclusion that the agreement to sell dated 30.7.1980 was void whereas it having been executed in consequence to the settlement of dispute vide consent decree dated 25.2.1977 would be holding the field and on all force, was a legal and valid instrument. Learned counsel submitted that respondents Nos. 1 & 2 acquired title in the suit property to the extent of 2/3rd share under the decree and would get l/3rd share on the basis of agreement dated 13.8.1980 which was entirely an independent transaction and remedy of Section 47, CPC for the enforcement of this agreement would not be available to them.
6. We have heard the learned counsel for the partied at length and also perused the record with their assistance. The decree dated 25.2.1977 as was passed in terms of the compromise and the .Dispute between the original allottees, (respondent Nos. 3 & 4) and Mubrik Ali etc. Vendees, (respondents Nos. 1 & 2) arising out of the agreement dated 18.9.1961 was settled, In pursuance of the decree, the original allottee (respondents Nos. 1 & 2) executed an agreement dated 13.6.1980 with its acknowledgements dated 31.8.1980 and 17.12.1980 for sale of l/3rd share in the land to Sh.
Mubarik Ali etc. (respondents Nos. 1 & 2) therefore, this subsequent agreement would acquire the status of a valid document creating title in the property and learned Senior Civil Judge, Sheikhupura, having considered it a legal instrument, decreed the suit vide judgment dated 27.12.1984 in the following terms;- "As a result of my findings on the preceding issues this suit is decreed for specific performance of the agreement dated 17.12.1980 in the terms that the plaintiff have paid the entire consideration for l/3rd of the total suit land, that Defendants Nos. 1 & 2 are directed to execute a sale-deed in favour of plaintiffs* in respect of l/3rd share of the entire suit land within a period of one month, if they failed, the plaintiffs shall be entitled to get the deed executed thought the representative of this Court. The suit of the plaintiffs regarding rest of the suit land is dismissed. The sale- deed dated 13.7.1986, made in favour of Defendant No. 3 is held ineffective to the rights of the plaintiffs to the extent of l/3rd share of the suit land. The parties are left to bear their own costs. This decree shall be treated ex parte against the defendants except Defendant No. 3."
The decree passed by the Trial Court was however, modified by the learned Additional District Judge, 'Sheikhupura, in cross appeal vide judgment dated 19.12.1995 in the following manner- "Under the circumstances, the instant Appeal No. 153 filed by Mubrik Ali plaintiff stands accepted and appeal filed by. Syed Ishaque Hussain Rizvi Appeal No. 152 stands dismissed. The impugned judgment and decree dated 22.12.1991 while dismissing the suit of the plaintiff/appellant of Appeal No. 153 to the extent of 2/3 of the suit land stands set aside. Consequently, a suit filed by the plaintiffs Sh. Mubarik Ali and Mst. Umat-un-Nisa shall stand decreed in their favour and against the defendants in respect of whole of the suit land. Parties are left to bear their own costs."
7. We having examined the matter in the light of the contentions raised by the learned counsel for the parties and decree passed in the previous suit, find that the learned Judge in Chamber in the High Court was misled in holding that the agreement dated 13.8.1980 was void. The agreements between the parties in respect of the property, subject-matter of decree dated 25.2.1977, would become subservient to it and lost its independent status whereas the agreement entered between the parties subsequent to the passing of the decree, would be entirely independent and on the basis of such agreement, suit for specific performance and possession of land would be competent. The' provisions of Section 47, CPG are analogous to other provisions of CPC and does not as such debar the remedy father it regulates the forum for the enforcement of right arising out of the decree. The civil rights subject to law, can be enforced through a civil suit except the rights which flow form a decree and thus a suit for enforcement of decree is not competent under Section 47, CPC but in the present case, the right claimed by respondents Nos. 1 & 2 under the agreement dated 13.8.1980 having been not created in their favour under the decree would not be determinable in terms of Section 47, CPC and consequently, the suit would not be defeated on the basis of technical objection. The decree dated 25.2.1977 being declaratory in character also would not be as such capable for execution therefore, provisions of Section 47, CPC even otherwise would not debar the suit, In the light of the position explained above, we would take no . Execution to the view of the High Court in the matter. However, the question relating to he dismissal of suit to the extent of l/3rd share in the property purchased by the respondents Nos. 1 & 2 through the agreement in question would need consideration. Ishaq Hussain Rizvi was real brother of Ihtesham Hussain and Mst. Shamim Akhtar, widow of Ishaq Hussain Rizvi, was attorney of Ihtesham Hussain, Ishaq Hussain was not party to the agreement dated 18.9.1961 and was also not a party in the suit in which decree was passed in terms of compromise on 25.2.1977, by virtue of which Mst. Shamim Akhtar was given l/3rd share in the land for onward transfer in the name of her husband, Ishaque Hussain, appellant herein, therefore, notwithstanding the formal execution of decree and acquisition of proprietary rights of the land by the original allottee, they could competently enter into a sale agreement in respect of their l/3rd share in the land and create a valid title on the basis of which respondents Nos. 1 & 2 asserted their right for a decree of specific performance with possession of land, including the land the title of which they derived under the decree dated 25.2.1977 and consequently, the sale-deed dated 31.1.1986 executed by respondents Nos. 3 & 4 in favour of appellants would not as such effect their rights, In view of the above, the observation of the learned Judge in the High Court that the sale in favour of appellants having taken place during pendency of the suit, would be hit by the principle of lis pendens and the appellants would not be considered bona i.e purchasers was unexceptional but the view regarding the legal character of the agreement dated 13.8.1980 was contrary to law and the concurrent finding of the two Courts subordinate to the High Court on this specific issue, was not liable to be disturbed.-
9. In the light of foregoing discussion, we while setting aside the judgment of the High Court dismiss Civil Appeal No. 342 of 2000 and allow Civil Appeal No. 351 of 2000 as a result of which, the decree dated 19.12.1995 passed by the Appellate Court shall stand restored. There will be no order as to the costs.