1. ' MUZAFFAR ALI, J.--- This revision petition challenges the validity and propriety of order dated 14-12- 2006 passed by learned ' Additional District Judge, Gilgit and the order, dated 12-6-2006 passed by the Executing/Civil Court, Gilgit, whereby the learned Executing Court has directed, the Assistant Commissioner concern, to deliver the possession of "the water-mill" by ejecting the present petitioner and present petitioner has been directed, to pay 2 years' arrears directly to present respondent, and order, dated 12-6-2006, passed by the Executing Court has been upheld by the learned Additional District Judge, Gilgit, dismissing the appeal preferred by the present petitioner, hence this revision.
2. ' The brief facts giving rise to the present dispute, between the parties are that, present petitioner filed Civil Suit No,78/97, before the Court of .Learned Civil Judge, Gilgit against present respondent, for "declaration cum perpetual injunction", in respect of the "water-mill", during course of proceedings, the matter was referred to the arbitrators. The arbitrators submitted their award before the Court with the verdict that, the "water-mill" declared to be joint property of the parties to the suit and the plaintiff and the defendant were allowed to utilize the same turn by turn with Warabandi of one year each etc. The learned Civil Judge passed the following decree after receiving the award. "Award dated 26-9-1998 attested and objection dated 14-11-1998 of plaintiff to award dismissed finding not proved. Suit of plaintiff partly decreed in terms of award". Neither of the parties challenged the decree either by filing a review petition before the trial Court nor impugned the same before any Appellate Court and decree got finality.
3. ' The present respondent filed execution proceedings before the Executing Court, considering himself to be the decree-holder in the decree. The Executing Court maintained the execution application of present respondent and passed the order, dated 12-6-2006, rejecting the objections filed by present petitioner and the order was confirmed by the First Appellate Court vide his order dated 14-12-2006, dismissing the appeal filed by the present petitioner. In my judicial approach both the lower Courts have passed the impugned orders without applying their judicial mind into the following legal questions, arising in the execution proceedings in the case that (a) Whether any sort of a decree has been passed in favour of the present petitioner, vide decree, dated 1-7-2000 and the present petitioner is decree-holder in the decree. (b) Whether the Executing Court can go behind the decree.
4. ' I probed into the case to find out any answer to the rider curtail legal questions, with the assistance of both the counsel for the parties, but, from bare perusal of impugned orders, the above points seem to be thirsty of answer. Obviously the arbitrators have determined the rights of the present petitioner over the disputed water-mill and categorically stated in the award that; the plaintiff and the defendant have joint ownership of the subject-matter of the suit (water-mill) and they are entitled to utilize the same turn by for a period of one year each, but the learned trial Judge, while passing the decree, ironically ignored the terms laid down in the award by the arbitrators and a sketchy rather a hasty decree has passed, whereby he decreed the suit of the plaintiff partly in terms of the award, instead of making, the whole award as "rule of the Court" and incorporate in the decree, all the terms laid down in the award, whether in favour of plaintiff or defendant.
5. ' No doubt, the ignorance of above legal aspect, by the trial Court is unwarranted, but at the same time, it can be said, that, the learned counsel for the defendant has also shown a professional irresponsibility, it was the professional obligation of the counsel to point out the shortcoming in the decree and, to advise his client to make address of the same by filing a review petition before the trial Court or to challenge the same before the competent Appellate Court. Such, are the legal technicalities, the consequence of which, a lawyer is supposed to understand, and for that purpose, a client appoints a counsel, by paying due professional fee, anyhow, the decree got finality and it transpires that, the present respondent is not a decree-holder in the decree and no decree has been passed in his favour, despite the fact that, the arbitrators have determined his rights also in respect of the subject-matter of the suit, but it is the decree which can be executed by the Executing Court and not the award and it is only, the decree-holder who is entitled under A law to invoke executing jurisdiction of the Court and not the judgment-debtor.
6. ' As far the point No,"b" is concerned, section 47 of the Code of Civil Procedure, 1908, is relevant which envisages, jurisdiction and the powers of the Executing Court as such that, the Executing Court shall determine all the questions arising between the parties to the suit, in which the decree is passed or their representatives, relating to the execution, discharge or satisfaction of the decree and the section bars separate suit in this regard. Order XXI, provides procedure for Executing Court.
7. Section 47 of the Code purports that, the matter as to the execution, satisfaction and discharge of the decree fall within the domain of the Executing Court and it is not open to the Executing Court to go behind the decree and re-determine the liabilities and the rights of parties and once the decree is passed, it has to be executed in terms and the Executing Court has no jurisdiction to modify, alter the same or interpret the decree. In accordance with his own wisdom. In this regard, I am supported by the case-law laid down in (1) 2001 SCMR page 396 (2) 2001 SCMR page 405 (3) PLD 2003 SC (AJ&K) page 14 (4) 1994 SCMR page 22 (5) 1990 MLD page 1189 (6) 1986 CLC page 2927.
8. ' Keeping in view, the above scheme of the law if, I look into the present decree under the execution, it is apparent from bare perusal of it that, no delivery of possession of the water-mill nor any arrears payable to the present respondent by the present petitioner, has been termed or decreed in favour of the present respondent, though the arbitrators have granted the same to the respondent, but what, the trial Court has granted in the decree is that, it has simply decreed the suit of the plaintiff as prayed for "perpetual injunction", but partly in terms of the award without applying its judicial mind, which has not been challenged either through review petition or by taking it before the Appellate Court. The learned Executing Court has presumed the decree in favour of the present respondent and ordered the execution of the same in favour of the present respondent and the learned Additional District Judge has confirmed the same on the basis of same speculation.
9. ' In my contemplative opinion, the proper course of law for the Executing Court to address the grievance of the present respondent, caused to him, because of the negligence and hasty attitude of the trial Court and unattending attitude of his counsel in the trial Court, was to treat the execution application as a suit under section 47 subsection (2) of the Code even at this stage, keeping in view the peculiar circumstances of the case, I offered the learned counsel for the respondent that, if he opts, the matter may be remitted back to the trial Court for adjudicating the same, treating it as suit, but the learned counsel refused and insisted on the point that, his client is a decree-holder and the decree is executable in his favour, since under law a person cannot be compelled to be plaintiff in any suit as such, I do not adopt this course, but I am of the view that, the present respondent may file a separate suit too, if the same is not bar in law otherwise and if advised so.
10. ' The upshot of the above discussion is that, both the learned lower Courts have deviated from their powers and the impugned orders are without jurisdiction, hence set aside by accepting the revision petition.