'KHALID ALI Z. QAZI, J.--- The plaintiff/decree-holder has filed this execution application praying therein that the decree, dated 10-3-1988 passed in Suit No,391 of 1977 in favour of the plaintiff to execute the lease deed in terms of Exh. P.1 within 60 days in the favour of the plaintiff/decree-holder by the defendant/J.D. No,1 after recovering of proportionate development charges which have been recovered from the other original allottees of the plot by the defendant/J.D. No,1 failing which the Nazir after ascertaining the balance amount of development charges after notice to the party and upon depositing of the same execute lease deed in favour of the plaintiff/decree-holder and the decree-holder is entitled to remain in possession of the plot and to obtain lease of 99 years from the defendant/J.D. No,1 under Order XXI, rule 34, C.P.C.
2. In response to the notice issued by this Court as to why execution be not issued, Mr. Khalil-ur- Rehman, Advocate appeared for the judgment-debtor and filed his objections under Order XLVII, C.P.C., wherein it has been stated that the plaintiff/decree-holder was allotted Plot No,6, Block "D", measuring 1000 sq. Yds. Vide allotment order, dated 2-7-1969 and the Survey Superintendent, Government of Sindh, Karachi, demarcated the land of the Society bearing Survey Nos.6, 196 and 229, and in terms of the said demarcation plan, the joint demarcation of outer boundaries of Alam Nagar Housing Society in Block No,6, Scheme No,36, was also carried out by the Director of Planning and Urban Design of the then K.D.A., as per its letter, dated 30-4-1986. The layout plan of Alam Nagar Housing Project was approved by the then K.D.A. Vide letter No,Misc./C-17/66/862 dated 1st March, 1972, issued by the Town Planner (Control), Outer Plan and Architect Department, K.D.A., Karachi. It has been stated that thereafter on account of construction of 200, wide road running from University Road to Dubai Palace, the layout plan of Alam ,Nagar Housing Project on Survey Nos.6, 196 and 229, of Block No,6, Scheme No,36, and after scrutiny, was revised vide letter No,8(36)17/DP&UD/89/66-1696, dated 14-11-1989. Thus, on account of the revision of the layout plan, the entire demarcation of the plot in question was upset, which necessitated fresh demarcation of the plots and their respective areas. Consequently all the allottees were required to surrender the original allotment letters and lease in case same was executed and obtain fresh allotment and fresh lease. It has been further stated that the decree-holder in spite of the repeated demands, failed to surrender the original documents and the then K.D.A. Again started re-demarcation of Alam Nagar Housing Project, against which, the judgment-debtor had to file Suit No,1402 of 2001 and by order, dated 15-10-2001, the then K.D.A. Was restrained to carry out fresh survey and demarcation. It has been further stated that after filing of the above Suit No,1402 of 2001 and service of prohibitory order, dated 15-10-2001 passed by this Court, the judgment-debtor was astonished to receive letter No,8(36)-15/0P&UD/80-2001/284/L, dated 27-10-2001 under which the approval of the revised layout plan issued vide letter, dated 14-11-1989 was withdrawn/cancelled with immediate effect. Consequently, by way of challenging the above cancellation of the revised layout plan, the plaint of Suit No,1402 of 2001 had to he amended and after grant of an application under Order VI, rule 17, C.P.C., amended plaint has been filed and the above suit is still pending disposal before this Court and on account of the above altered circumstances, and in the absence of revised allotment order with new number and area and demarcation of the plot in the name of the decree-holder as per the revised layout plan, no lease with particular plot number and its area can be executed and this exercise can only be done after the withdrawal of the order of cancellation of revised layout plan referred to above and the disposal of the above Suit No,1402 of 2001 pending in this Court. Since the decree of the suit imposes reciprocal obligation upon the decree-holder to pay the balance internal development charges as may be demanded from time to time and also outer development charges payable to City District Government, Karachi, K.D.A.
Wing, through the judgment-debtor, the execution application, as filed by the decree-holder, merits dismissal. It is submitted that subsequent events happening after the passing of the decree, have to be taken into consideration by the Executing Court.
3. It has further stated that by order, dated 27-1-2005 passed by this Court in Suit No,1150 of 1991, which is filed by the judgment-debtor and which is connected with Suit No,1402 of 2001, the judgment-debtor (Plaintiff above Suit No,1150 of 1991) was restrained to stay its hand and was further directed not to raise any further construction either by the plaintiff (J.D.) or any of its members or by any of the defendants nor the property in dispute would change hands in any form and the said restraining orders were to remain in field till the disposal of Suit No,1402 of 2001 and Suit No,1150 of 1991. It has also been stated that the decree in question is merely a directory decree which is not capable of being executed, therefore, prayed that the Execution Application, as filed by the decree-holder be dismissed, being not maintainable in law.
4. In rebuttal, learned counsel for the decree-holder submits that the objections filed by the J.D. Are frivolous and not sustainable in law and,the same is liable to be dismissed with costs as no cogent reason is given in the objections for staying the execution. He further submits that objection against this execution has been filed malafidely by the J.D. In order to delay the execution of the judgment and decree which was passed on 10-3-1988 by this Court about 19 years back and was maintained by the Division Bench in H.C.A. No,51 of 1988 by dismissing the appeal of the J.D. On 24- 3-2006. He submits that judgment-debtor did not inform this Court in the suit or H.C. Under this execution and had only filed an application at the time of final arguments of H.C.A. No,51 of 1988 with mala fide intention to delay the proceedings about pending of Suit No,1402 of 2001 between him and K.D.A. And to confuse the Court for passing any order and that appeal was decided after considering this contention of filing Suit No,1402 of 2001 by the judgment-debtor and held in para.15 of the judgment that the cancellation of revised plan by the K.B.C.A. Has no bearing on these proceedings which are independent and have no nexus with the issues involved in Suit No,1402 of 2001 and now the same objection is again raised by the J.D. In this proceedings which has already been considered by the Division Bench of this Court and repelled. He further submits that the litigation between the J.D. And the Government of Sindh and City District Government bearing Suit No,1150 of 1991 and Suit No,1402 of 2001 filed by the J.D. May be inclusion with each other or with mala fide intention of the J.D. To prolong the lease to its allottees and the cancellation of layout plan was due to the deliberate default of the J.D. Who failed to comply the requirement of the K.D.A./C.D.G.K. Intentionally to get the site plan cancelled in order to deprive his allottees from their plots. He denied that judgment-debtor has ever demanded to surrender the original documents after 14-11-1989 and he has also not annexed any such demand letter under acknowledgement while the fact is that he concealed every proceedings between him and C.D.G.K. And Government of Sindh.
5. Learned counsel for the decree-holder further submits that the conduct of the J.D. In the proceedings always remained unfair as there is no such order of any Court in the proceedings and litigations mentioned by the J.D. That the lease cannot be executed the only construction is restrained on the plot of J.D. He submits that the Executing Court cannot go behind the decree when the said decree is upheld in appeal and under the decree the plot in question has to be leased out in favour of the decree-holder with possession.
6. I have heard Mr. Izhar Alam Farooqui, learned counsel for the decree-holder and Mr. Khalilur Rehman, learned counsel for the judgment-debtor and perused the case record, which goes to show that filing of suit by the judgment-debtor against the Government of Sindh and C.D.G.K. Has no bearing on. These proceedings which are independent and have no nexus with the issues involved in Suit No,1402 of 2001 and now the same objection is again raised by the judgment- debtor in these proceedings, which have already been considered and repelled by the Division Bench of this Court. The suit was decreed on 10-3-1988 and filing of objections by the judgment- debtor at this belated stage is trying to linger on the matter and frustrate the execution proceedings only in order to deprive decree-holder from his plot. The H.C.A. No,51 of 1988 filed by the judgment-debtor against the judgment and decree has already been dismissed by a Division Bench of this Court and no further remedy by approaching the Honourable Supreme Court has been availed by the judgment-debtor.
' The execution application is allowed as prayed.