1. ' RAFIULLAH SULTANI, J.---This appeal is directed against the order of Senior Civil Judge, Mazaffarabad, dated 12-2-2000, whereby the direction for execution of decree has been assailed.
2. ' As difference of opinion has arisen between the members of the bench and the matter has been referred to me as third Judge under sub-rule (2) of Rule 21 of the High Court Procedure Rules, 1984.
3. ' The facts of the case have been mentioned in detail by my learned brother Mr. Justice Sardar Muhammad Nawaz Khan in his judgment. However, I deem it proper to mention brief facts giving rise to instant appeal. A decree was passed in favour of Brig. (R) Muhammad Aslam Khan (late) now representing by respondents herein. The respondents filed an application for execution of the said decree before this Court of 5-7-1978. The said application was transferred to learned Sub- Judge Muzaffarabad After due course of law, the said Court passed an order on 12-2-2000. This - der has been assailed My learned brother Mr. Justice Sardar Muhammad Nawaz Khan has held that the learned Judge, Mr. Justice Muhammad Siddique Farooqi, (as he was then) has set aside the impugned order of executing Court by accepting the appeal and had kept the matter pending in this Court for adjudication of the fate of the application for execution of decree. While my learned brother Mr. Justice Reaz Akhtar Chaudhry has held that the impugned order of the executing Court was not set aside and the appeal was pending before this Court, the objection regarding maintainability of the appeal can be raised because the appeal was yet to be decided finally by this Court.
4. ' The second point of difference of opinion is that appeal before this Court against the order under section 47 of C.P.C. Was not maintainable. It has been held by my learned brother Mr. Justice Reaz Akhtar Chaudhry that appeal against order under section 47 lies to learned District Judge under section 104 of C.P.C. While my learned brother Mr. Justice Sardar Muhammad Nawaz Khan has exercised the inherent powers under section 151, C.P.C., read with section 35 of the Courts and Laws Code Act and the powers of superintendence and control under section 46 of the Azad Jammu and Kashir Interim Constitution Act, 1974.
(3) The third point of difference of opinion is that my learned brother Mr. Justice Reaz Akhtar Chaudhry has dismissed the appeal being not maintainable while my learned brother Mr. Justice Sardar Muhammad Nawaz Khan has dismissed the application for execution of decree which was pending before the executing Court.
5. ' The learned counsel for the appellant reiterated grounds of the appeal and further contended that the learned Judge, 'Mr. Justice Reaz Akhtar Chaudhry, dealt only one point that whether the appeal is competent against the impugned order? He did not decide all other points agitated by the parties and Mr. Justice Sardar Muhammad Nawaz Khan dealt all the points raised by the parties. It was next argued that clause 10 of the agreement was no longer applicable on the case in hand as already adjudicated by the apex Court vide its judgment dated 26-5-1994. It was next argued that the impugned order has already been set aside by this Court and the appeal has been accepted by this Court on 25-5-2000, due to this reason question of maintainability of the appeal could not be raised at this stage. It was next argued that executing Court has miserably failed to understand and follow the judgment of the apex Court and not dealt the objections raised by the judgment-debtor. It was argued that remand order of this Court dated 25-5-2000 has not been assailed and report of the District Judge has not been objected by the respondents and now the respondents cannot raise regarding maintainability of the appeal at this stage. It was further contended that the appeal is maintainable against the impugned order and in case the appeal is not competent even then this Court is empowered to set aside the impugned order and can upheld the order passed by the District Judge on 12-12-2000. He further argued that order passed by the executing Court in execution application after hearing the judgment-debtor falls under section 47 of C.P.C. And against the said order appeal is competent under section 96 of C.P.C It was further argued that it is celebrated principle of law that appeal can be treated as revision. It was next argued that amendment application has been made by the appellant to amend the memorandum of the appeal because the application for execution of decree shall be treated as suit and the value of the application for purpose of jurisdiction will be the same which will be the value of the suit. The value of appeal could not be determined, on account of that amendment application has been filed to incorporate the value of the appeal. Due to this reason proposed amendment may be allowed. In support of his version, he cited following case-law:-- ' PLD 1970 SC 63; AIR 1970 SC 997; PLD 1968 Lah. 433; PLD 2001 Lah. 135; 1983 CLC 1181; 1987 CLC 1994'
6. 2002 MLD 1233 and 1992 SCR 214.
7. ' The learned counsel for the respondents defended the impugned order and further argued that the impugned order has been passed by the executing Court in, accordance with law. It was next contended that the impugned order was passed under section 47 of C.P.C. And it was appealable order under section 104 of C.P.C. It was argued tbat under section 104 of C.P.C. Only one appeal was provided which was, to be filed in the Court of District Judge. Appellant had failed to file appeal before District Judge, therefore, the appeal in hand is not maintainable and it may be dismissed. It was next argued that where express remedy is provided by prescribed law then section 151 of C.P.C.
8. Does not apply. Section 151 of C.P.C. Is only applicable where there is no remedy provided in statute.
9. It was argued that on this point that the appeal was not competent before this Court both the learned Judges are agreed. It was next argued that the apex Court has not written the point of satisfaction of decree in its judgment. It was next argued that the appeal was not decided by this Court while passing the remand order. In support of his version, he cited following case-law:-- ' PLD 1970 SC 63; PLD 1968 Lab. 433; 1987 CLC 1994; PLD 2000 SCR 589 and 2007 SCR 381.
10. ' I have heard the learned counsel for the parties and gone through the record of the case and proposed judgments written by the learned Judges of Division Bench in this case.
11. ' The main controversy between the parties is that as the appeal is maintainable against the impugned order dated 12-2-2000 before this Court and in case if the appeal is not competent then this Court can exercise its revisional jurisdiction to treat the appeal as revision.
12. ' First of all, I would like to deal this point that whether the appeal in hand is maintainable? The impugned order dated 12-2-2000 of Senior Civil Judge Muzaffararabad has been assailed in execution proceeding before this Court. Section 47 of C.P.C. Applies where the decree in question is executable. For proper perception I would like to reproduce section 47 of C.P.C., which reads as under:-- "47. Questions to be determined by the Court executing decree;
(i) All questions arising between the parties to the suit in which the decree was passed, or their representatives, and relating to the execution, discharge or satisfaction of the decree, shall be determined by the Court executing the decree and not by a separate suit.
(2) The Court may, subject to any objection as to limitation or jurisdiction treat a proceeding under this section as a suit or a suit as a proceeding and may, if necessary, order payment of any addition court fees.
(3) Where a question arises as to whether any person is or is not the representative of a party, such question shall for the purposes of this section, be determined by the Court.
13. ' Explanation.---For the purposes of this section, a plaintiff whose suit has been dismissed and a defendant against whom a suit has been dismissed, are parties to the suit."
14. ' A plain reading of the above quoted section reveals that all the questions arising between the parties for satisfaction of decree which would relate to or affect the rights of parties shall be determined under afore-said section. In the instant case the impugned order has been passed under section 47 of C.P.C. By executing Court. When an order passed in execution proceeding by the executing Court that order could be appealed against which have been made appealable under section 104 of A C.P.C. For proper perception, I would like to reproduce section 104 of C.P.C.
15. Which reads as under:-- "104. Orders from which appeal lies.---(1) An appeal shall lie from the following orders, and save as otherwise expressly provided in the body of this Code or by any law for the time being in force, from no other orders:-- [(f) an order under section 35A; (ff) an order under section 47;]
(g) an order under section 95;
(h) an order under any of the provisions of this Code imposing a fine or directing the arrest or detention in the civil prison of any person except where such arrest or detention is in execution of a decree;
(i) any order made under rules from which an appeal is expressly allowed by rules: [Provided that no appeal shall lie against any order specified in clauses (f) save on the ground that no order, or an order for the payment of a less amount, ought to have been made],
(2) No appeal shall from any order passed in appeal under this section."
16. 'Now it is settled proposition of law in the light of above quoted provision of law that each decree is appealable but each order is not appealable. Appeal can lie only against those orders which has been made appealable under section 104 read with Order XLIII, rule 1 of C.P.C. It was held B in case titled Khalid Shahbaz Chaudhry and 4 others v. Prime Commercial Bank Limited through Attorney and another, reported in 2003 YLR 2912, which reads as under:-- "----Ss.47 & 104(ff)---Dismissal of applications under S.47, C.P.C.--Appeal--- Maintainability--- Effect of the dismissal of said application in the present case, was that the objections against the sale in question had been set aside and nothing remained to be done by the Executing Court after having confirmed the sale---Process of execution having stood terminated so far as the properties of the appellants as also their rights, title or interest therein were concerned---Order of the Executing Court though had not decided the merits but still the Court had dismissed the applications under S.47, C.P.C. For the reasons that the applications were incompetent or were not maintainable---Such decision of the Executing Court was subject to appeal under S.104(ff), C.P.C."
17. ' Now it can be said safely that order passed in execution proceeding by the executing Court is appealable order under section 104 of C.P.C. Before District C Judge. Appellant has not filed appeal under section 104 of C.P.C. Before District Judge Muzaffarabad; on account of that, appeal before this Court is not maintainable.
18. ' Coming to the next point which was argued by the learned counsel for the appellant that if appeal was not competent then it could be treated as revision and this Court can exercise its revisional jurisdiction to set aside the impugned order and the order passed by District Court can be upheld.
19. According to contention of the learned counsel for the appellant if the appeal in hand is treated as revision instead of appeal and it be assumed that the revision has been filed against the impugned order dated 12-2-2000 passed by the executing Court, it does not lie as this was an appealable order. It was held in case titled The Punjab Association Club Lahore v. Major Ejaz Ahmed Khan and another, Caption (b), reported in PLD 1980 Lah. 675, which reads as under:- "----S.115 read with Ss.47 & 104-- Revision--- Order passed under S.47 appealable under S.104 but no appeal preferred---Held, revision against such order does not lie."
20. ' The revision is liable to be rejected on this sole ground.
21. ' There is yet another aspect of the matter that if appeal in hand is treated as revision according to the contention of the learned counsel for the appellant then question arises that whether remand order can be passed in revision? Before dealing this point, for proper perception, I would like to reproduce Order XLI rule 25 of C.P.C., which reads as under:-- "25 Where Appellate. Court may frame issues and refer them for trial to Court whose decree appealed from.---Where the Court from whose decree the appeal is preferred has omitted to frame or try an issue, or to determine any question of fact, which appears to the Appellate Court essential to the right decision of the suit upon the merits, the Appellate Court may, if necessary, frame issues, and refer the same for trial to the Court from whose decree the appeal is preferred, and in such case shall direct such Court to take the additional evidence required; ' and such Court shall proceed to try such issues, and shall return the evidence to the Appellate Court together with its findings thereon and the reasons therefor."
22. ' A plain reading of above quoted law shows that learned counsel for respondents is justified in maintaining This argument that Order XLI rule 25 is attracted only in exercise of appellate jurisdiction and the said prescribed law does not apply while exercising revisional D jurisdiction.
23. This view gets 'Support from case titled Mst. Hanifan Bibi and 3 others v. Mst. Fatima and 4 others, reported in 2001 CLC 1344, caption (a) which reads as under:- "----O.XII, R.25 & S.115---Remand of case---Jurisdiction of revisional Court---Scope---Power to remand a case under the provisions of O.XLI, R.25, C.P.C. Is attracted only in exercise of appellate jurisdiction and the power is not available while exercising revisional jurisdiction."
24. ' Now, it can be said undoubtedly that only a decree appealable which warrants application of Order XLI rule 25 of C.P.C. In the instant case, the appeal is not competent but even if the appeal could be competent, it must be against a decree and the said situation is not available in the case in hand. Therefore, in the instant case, there is manner of doubt that the remand order was not passed in accordance with prescribed law by the learned Judge (as he was then).
25. ' As regards to the next question that whether the appeal was pending after the remand order dated 25-5-2000 or it stood decided finally through the said order and the only execution proceedings were pending before this Court? According to perusal of the judgment of the learned Judge Mr. Justice Muhammad Siddique Farooqi, as then he was, it reveals that the appeal had not been finally adjudicated. For proper perception, I would like to reproduce the relevant portion from the judgment of the case titled Azad Government of the State of AJ &K through its Chief Secretary v. Brig. (R) Muhammad Aslam. Khan, which reads as under:-- "The appeal before this Court shall remain pending which will be decided after receiving the finding of the District Judge on the points formulated here-in-before."
26. ' It is crystal clear from plain reading of the afore-said judgment that learned Judge kept the appeal pending and remanded the file to the learned District Judge for determination of certain question of facts after recording of evidence of parties and also directed the registry office to place the appeal before the Court after receiving the report of District Judge along with evidence recorded by him. The same like controversy arose in case titled Gogula Gurumurthy and others v.
27. Kurimeti Ayyappa, reported in AIR 1974 SC 1702, caption (a) and resolved by the Division Bench in following manner:-- "(A) When a finding is called for on the basis of certain issues framed by the appellate Court, the appeal is not disposed of either in whole or in part. Therefore, the parties cannot be barred from arguing the whole appeal after the findings are received from the trial Court. Thus where the High Court had merely framed issues and referred them for trial to the Court of first instance under O.XLI, rule 25 and not remanded the whole case under Order XLI, rule 23, High Court should have heard the whole appeal and not confined the hearing merely to the points on which the finding was called for."
28. ' In case titled Haji Muhammad Ashiq Bhutta v. Dr. Ajazul Haq Qureshi, reported in 1989 CLC 19, the same controversy was subject matter which was resolved by the learned Judge in following manner:-- "----S.99. O.XLI, Rr.25 & 27 & O. XLIII, R.I---Framing of additional issues in appeal and remanding of entire case by Appellate Court---Validity of---No concept of remand of entire case to be construed from provisions of remand as contained in O.XLI, R.25 of Civil Procedure Code---Only issues, as framed by Appellate Court, are sent down for findings thereon, being returned to Appellate Court which in the meanwhile remains seized of appeal as a pending cause on its list--- Object of remand is not to provide an unsuccessful litigant another opportunity to prove his case, much less to allow him to patch up weakness of his case either by production of additional evidence or by passing order of remand-By framing additional issues in appeal on those matters which had been impliedly abandoned by defendant, Appellate Court had transgressed limits of jurisdiction by ignoring dictates of provisions of S.99, Civil Procedure Code-Appellate Court's impugned order being not sustainable, was set asidp and case was sent back to Appellate Court to be decided in accordance with law."
29. ' It was held in case titled Muhammad Younus and 5 others v. Abdullah and 3 others, reported in PLD 1987 SC (AJK) 133, in caption (a), which reads as under:- "-O.XLI, R.25-Expression 'Court from whose decree appeal is preferred'-Court, in case of second appeal, would be lower Appellate High Court-Case falling within purview of O.XLI, R.25, C.P.C.- Appellate Court not justified in remanding whole case to Trial Court for decision afresh- Appellate Court, in second appeal, finding that Trial Court omitted to frame an issue, remanded whole case to Trial Court with direction that an additional specific issue be framed and after taking evidence in support and rebuttal of issue decision afresh be given-Held: Provision of O.XLI, R.25, C.P.C, was absolutely clear; if any contingencies, envisaged by provision existed the High Court in such case should retain appeal and direct lower Appellate Court (and not Trial Court) to try additional issue and remit record to High Court along with its findings; High Court is not justified in remanding whole case to Trial Court for afresh findings."
30. ' I n the light of above cited case-law no further discussion is required on aforesaid point. I do not agree with this version that the appeal had been decided finally and the only execution proceedings of the decree was pending and to be decided by this Court.
31. ' Coming to the,next question arises in the case in hand that whether inherent powers under section 151 of C.P.C, read with section 35 of the Courts and Laws Code Act, could be applied? Before dealing with this point, for proper perception, I would like to reproduce section 151 of C.P.C., which reads as under:- v "Sec.
32. 151.-Saving of inherent powers of Court.-Nothing in this Code shall be deemed to limit or otherwise affect the inherent power of the Court to make such orders as may be necessary for- the ends of justice or to prevent abuse of the process of the Court."
33. ' It is evident from the above quoted provision of law that inherent powers of the Court applies only where there is no express provision of law applicable to the case. In presence of a specific provision of law, a party cannot seek relief under section 151 of C.P.C. It was held in case titled Mst. Hanifa Begum v. Hassan Sheikh and 3 others, reported in PLD 1983 SC (AJK) 163-164, caption (e), which reads as under:- "(a) O.XLV, R. 13 and S.151---Provisions of S.1.51 not applicable in presence of express provision provided in Code to deal with situation---Provision cannot be invoked where Court has become functus officio and no matter pending before it---Appeal to Supreme Court Provisions of O.XLV, R.13 deal exhaustively with powers of High Court relating to preservation of subject-matter of appeal and suspension of orders appealed against---Provision, however, cannot be pressed into service where there is neither application under Art. 58(2)(a) of Constitution, 1962 for certificate by High Court nor special leave to appeal granted by Supreme Court under Art. 58(2)(a) of Constitution--- Aggrieved party, in such circumstances, cannot resort to provisions of S.151, C.P.C. And seek stay of operation of High Court's order on ground that it intends to apply to Supreme Court for special leave to appeal---Constitution of Pakistan (1962), Arts. 58(2)(a) and 58(3)"
34. ' It was held in case titled Ghulam Farid and 4 others v. Sultan, reported in 1985 MLD 619, which reads as under:-- "---S.151 and O.XLI, Rr. 11(2) & 19---Limitation Act (IX of 1908), S.5 & Art.168---Appeal--- Dismissal in default---Remedy available by way of petition for restoration---Limitation---Condonation of delay-Inherent jurisdiction of Court not available---Remedy available after dismissal of appeal was to move petition before Court under provisions of O.XLI, R.19, C.P.C. For restoration of appeal within prescribed time---Inherent jurisdiction of Court conferred under S.151, C.P.C., held, could not be invoked where remedy under specific provision of law was available-Provision of section 5 of Limitation Act, 1908, held further, did not apply to petition for restoration of appeal which was dismissed in default---Petition for restoration of appeal not filed within prescribed period of limitation i.e, 30 days of dismissal of appeal was therefore, liable to be rejected being time-barred."
35. ' It was held in case titled Muhammad Farid v. M.St. Shahnaz Begum and 5 others, reported in PLD 1987 AJK 44 caption (f), which reads as under:-- ----0.IX, R..8 & O.XVII, R.2 & S.151---Dismissal of suit for non-appearance of plaintiff---Application for restoration---Inherent power of Court, exercise of---Appellant failed to file application within prescribed period of limitation and show sufficient cause for his nonappearance---Held, there was no justification for exercising inherent powers under S.151, C.P.C."
36. 'It was held in case titled Rao Muhammad Suleman v. Allied Bank of Pakistan Ltd. And 11 others, reported in 1987 CLC 1338 caption (b), which reads as under:-- "(b) Civil Procedure Code; ----S.151---Inherent power of High Court---Such powers can be exercised only where no specific provision of law is available."
37. 'It was held in case titled Jyotish Chandra Chakraborti v. Hem Chandra Roy and another, reported in PLD 1959 Dacca 337 caption (b), which reads as under:--
(b) Civil Procedure Code; ----S.151---No appeal cntertainable under inherent powers.
38. ' No appeal can be unless the right has been expressly conferred by statute. A Court cannot override an express provision of law under colour of inherent jurisdiction."
39. ' It was held in case titled Amjad Rashid Khan v. Mrs. Zubeda Rashid and another, reported in 1984 CLC 2851 caption (iv), which reads As under:-- "(iv) Civil Procedure Code; ----S.151---Court---Inherent powers of--Exercise of---Held: In absence of specific provision in Code providing for procedure to deal with particular situation, Court to be competent to pass such order as may be necessary to do justice between parties in circumstances such order."
40. ' It was held in case titled Rao Muhammad Suleman Khan v. Allied Bank of Pakistan Ltd, Gole Cloth Branch, Faisalabad and 10 others, reported in 1987 CLC 1338 caption (i), which reads as under:-- "(i) Civil Procedure Code; ----S.151---Court---Inherent powers of--Exercise of---Held: Inherent powers under Code of C.P.C.
41. To be exercised only where no specific provision of law be available."
42. ' And it was also held in case titled Rana Shahshad Ali Khan v. Province of Punjab through Collector, Multan and 4 others, reported in 1993 SCMR 1473-1474, which reads as under:-- "Held, apart from the provision of Order XXVI, Rule 9, C.P.C., the Court had inherent powers to pass any order in a case, where the circumstances of the case so required to do complete justice between the parties and for which no specific provision existed in the Code. The rules of procedure were meant to advance the course of justice and they could not be pleaded to obstruct the same.
43. High Court having granted status quo order in the case, on the application of petitioner, was fully competent to modify that order if the circumstances of the case so justified and for that purpose the Court could pass any incidental order, including the order to appoint a commissioner to inspect the site, to satisfy itself if the condition of the premises was such that it required modification of the status quo order passed in the case. The fact that there was no specific.
44. Provision available in the C.P.C.,, authorizing the Court to pass such an order could not debar the High Court of its inherent power to pass an inherent power to pass an order to do full justice between the Parties in the peculiar circumstances of the case. Such power could be exercised, in the absence of a specific provision in the Code of Civil Procedure, under section 151, C.P.C."
45. ' It is evident from the survey of above cited case-law that provision of section 151 cannot be exercised to defeat tine provision of the code nor can be F invoked to patch up the ,lacuna in case or to condone gross negligence. The instant case is not a case of such nature in which section 151 and section 35 of the Courts and Laws Code Act could be invoked.
46. ' It is correct that under section 46 of Azad Jammu and Kashmir Interim Constitution Act, 1974, the High Court has the powers of superintendence and control on all the subordinate Courts but these powers were not conferred upon it for converting it into the. Court of appeal or Court of revision. My learned brother Mr. Justice Reaz Akhtar Chaudhry has elaborately discussed the said matter in the light of case laws referred in his judgment and no further discussion is required upon this matter.
47. ' Coming to the next question which is involved in this case and observation made by my learned brother Mr. Justice Sardar Muhammad Nawaz Khan in his judgment at page 18 in para No,12 that initial agreement is frustrated and the decree has been already satisfied. I do not agree with the said observation made by my learned brother because the said observation was made on the basis of findings of learned District Judge. The report and finding of learned District Judge is in consequence of remand order which has been declared illegal in earlier part of judgment. On the basis of said report of learned District Judge any finding cannot be passed because it is celebrated principle of law that if the basic order is illegal then all the steps taken further on the basis of that H order are not sustainable in law. The argument of the learned counsel for the appellant that question of satisfaction of decree and frustration of agreement have been decided by the apex Court vide its judgment dated 26-5-1994 is unsustainable because no such question or issue has been decided by the apex Court. For proper perception, I would like to "We have given due consideration to the above reflected points and we are of the opinion that these points have not been raised before in any of the Courts below and there is no findings on these points. Thus we are of the view that the above reflected two points i.e, the question as to whether the respondent was not entitled to 10% depreciation after 1st day of January 1968 and whether the agreement dated 4-4-1966 has been frustrated, cannot be permitted to be raised before this Court at this step. The appellant is so advised may raise these points in the Executing Court and it would be for the Court to decide as to whether these points can raised and if the answer is an affirmative, .How they would effect the executing proceedings."
48. ' There is no need to discuss other points which are involved in the case because the appeal is not competent and the instant appeal cannot be treated as revision. Remand order by this Court' to District Judge dated 25-5-2000 being violative of Order XLI Rule 25 of C.P.C. Is declared illegal and not in accordance with law. Resultantly report of learned District Judge dated 12-12-2000 cannot be upheld. I do agree with the judgment made by my learned brother Mr. Justice Reaz Akhtar Chaudhry.
49. ' In view of above, the instant appeal is not maintainable which is hereby dismissed.