1. ' GHULAM MUSTAFA MUGHAL, J.--- This appeal is filed against the judgment and order passed by the learned Additional District Judge, Rawalakot on 12-9-2008, whereby, a warrant for possession, issued by the learned Senior Civil Judge, Rawalakat on 29-12-2006 has been maintained.
2. ' Facts of the case, shortly stated are that in Suit No.123 instituted on 11-10-1973 on behalf of Subedar Faqeer Muhammad Khan, against Gulab Khan, a decree for joint possession was granted in respect of numbers Khasra 131 and 150 min measuring 3 Kanals, along with a house on 26-3-1978. It appears that on 9-12-1981, an application for amendment in the decree was filed, which was accepted as a result of compromise between the parties on 21-9-1987. It was declared that Subedar Faqeer Muhammad Khan/decree-holder will be the owner of land number Khasra 131 min, measuring 3 Kanals and 9 Marlas along with the house and the decree dated 26-3-1978 stood cancelled to the extent of number Khasra 150. On 15-11-1990, an application for execution of the decree was filed in the Court of Senior Civil Judge, Poonch. Initially, a warrant was issued on 5-11- 1992. This order was maintained on appeal by the learned District Judge, Poonch on 16-9-1993. On further appeal, vide judgment dated 27-4-1995; this Court remanded the case with the direction that the trial Court shall consider the original decree as well as the amended decree afresh and pass a fresh order. On remand, the case remained pending for one reason or the other, however, on 15-12-2005, the learned trial Court framed some questions in light of the direction of this Court as well as the report of the executing agency. Subsequently, vide order dated 29-12-2006, the learned Civil Judge issued a warrant for possession (Khas) against appellant, herein. Feeling' aggrieved from the said warrant, the appellant challenged the legality and proprietary of the same before the learned District Judge, Poonch through appeal No.24 which was later on transferred to the learned Additional District Judge, Rawalakot. After hearing the parties, the learned Additional District Judge, dismissed the appeal vide his judgment dated 12-9-2008.
3. ' Sardar Ejaz Khan, the learned Advocate for the appellant, inter alia, contended that the judgment and order of the trial Court dated 29-12-2006 and that of the first appellate Court date 12-9-2008 are illegal, erroneous and against the record, besides, being recorded in violation of the judgment of this Court, recorded in Civil Appeal No.55 titled Mst. Hafeeza Jan v. Subedar Faqeer Muhammad Khan, decided on 27-4-1995. The learned Advocate further contended that a compromise decree was obtained without hearing the appellant and the same cannot be executed against the appellant because she was not a party to it. The learned Advocate submitted that even otherwise, it was enjoined upon the trial Court to ascertain the true nature of the decree and the relief granted in view of the direction of this Court and this could only be done after recording the evidence. He argued that the decree was in-executable in view of the report of the revenue authorities. In support of his submissions, the learned Ad ocate placed reliance on the following cases:--- ' (1) 1991 CLC 424/436, (2) 1994 CLC 1530; (3) 2000 YLR 712.
4. ' Sardar Muhammad Suleman Khan, the learned Advocate for the respondents, controverted the arguments advanced on behalf of the appellant and submitted that the appellant has challenged the warrant, firstly, through an appeal, which was dismissed by the learned District Judge, Poonch on 31-7-1988. No further appeal against this order was preferred, thus, the judgment of the learned District Judge has attained finality and the appellant cannot litigate further on the same subject in the presence of the afore-stated judgment. The learned Advocate contended that the appellant, again filed a suit on 16-10-1995, whereby, she challenged the amended judgment and decree dated 21-9-1987. After necessary proceedings, her suit was dismissed by the learned Sub-Judge, Rawalakot on 30-5-1998 and her claim in respect of numbers Khasra 131 and 150 was rejected. The learned Advocate submitted that totally, a new case has been built up by the learned Advocate for the appellant and these objections have not been raised before the sub-ordinate Courts. He further submitted that the decree passed by the civil Court has to be executed and cannot be allowed to be frustrated on the report of any revenue authority. The learned Advocate relied upon the following cases:--- ' (11 1992 SCM R 2175, (2) 1994 SCM R 22.
5. ' I have heard the learned Advocates for the parties and gone through the record of the case.
6. ' Record reveals that initially, a decree for joint possession was granted in favour of Subedar Faqeer Muhammad Khan, in respect of numbers Khasra 131 and 150 min measuring 3 Kanals along with a house, on 26-3-1978. It appears that on 9-12-1981 an application under section 152 of the Code of Civil Procedure was made by Gulab Khan and Subedar Ali Akbar against the decree holder, Faqeer Muhammad Khan. As a result of a compromise, the decree was amended. Number Khasra 150 was deleted from the decree dated 26-3-1978. The amended decree was challenged by Mst. Hafeeza Jan before the learned District Judge and her appeal was dismissed on 31-7-1988. An application for execution of the decree was filed by the decree holder and warrant for possession was issued on 15-11-1992, This order was challenged before the learned District Judge, Poonch and the appeal was dismissed on 16-9-1993. This order was further challenged before this Court by way of appeal and the same was accepted on 27-4-1995. This Court directed the trial Court that after hearing the appellant, herein, a fresh order for execution of the decree may be issued. On remand, the learned Senior Civil Judge, Poonch has issued a warrant for (Khas) possession on 29-12-2006. Appeal against this order has also been dismissed through the impugned judgment. In my estimation, the learned trial Court has not complied with the remand order of this Court in letter and spirit, which is unfortunate.
7. ' Be that as it may, for the reasons to be recorded, hereinafter, I am of the view that this appeal has a substance and the orders passed by the learned trial Court as well as the first appellate Court need to be amended. In granting this relief, the judgment of the learned Civil Judge, Rawalakot dated 30-5-1998 and that of the learned District Judge dated 31-7-1988 do not stand in the way of this Court because this Court has supervisory jurisdiction to correct the illegalities of the subordinate Courts. A perusal of the record would show that initially, a decree for joint possession was granted in favour of the predecessor in interest of the respondents, herein on 26-3-1978.
8. Subsequently, an application was filed for correction of the decree under section 152 of the Code of Civil Procedure. Though, number Khasra 150 has been deleted from the judgment dated 21-9-1987 but the fact of matter is that the nature of the decree remained unchanged and by no stretch of imagination it can be said that the trial Court while correcting the decree dated 26-3-1978 has passed a decree for (Khas) possession on 21-9-1987, which was beyond the scope of section 152 of the Code of Civil Procedure. The decree for joint possession is to be executed in light of the provisions contained in Order XXI, rule 35 of the Code of Civil Procedure.
9. ' Sub-rules (1) and (2) of rule 35 are reproduced as under:--- "35 (1) Where a decree is for the delivery of any immovable property, possession, thereof shall be delivered to the party to whom it has been adjudged, or to such person as he may appoint to receive delivery on his behalf, and, if necessary, by removing any person bound by the decree who refuses to vacate the property.
(2) Where a decree is for the joint possession of immovable property, such possession shall be delivered by affixing a copy of the warrant in some conspicuous place on the property and proclaiming by beat of drum, or other customary mode, at some convenient place, the substance of the decree."
10. ' In view of the above provisions of law, -only a warrant for delivery of joint possession should have been issued by the executing Court because law is well settled that the executing Court cannot go behind the decree. The judgment of the first appellate Court also needs to be amended, accordingly.
11. ' The appeal is, therefore, accepted. The warrant issued by the learned executing Court on 29-12- 2006 shall be deemed to have been issued for joint possession of the suit-land and shall be executed by the respondents in accordance with the afore-mentioned provisions of law.