MUHAMMAD KHALID MEHMOOD KHAN, J. --- This case has a chequered history. Respondent No. 1 filed a suit for possession through specific performance of agreement against respondent No. ' 2, subsequently in the said suit petitioner was also arrayed as defendant. Through the said suit respondent No. 1 claimed that respondent No. 2 was owner in possession of plot measuring 4-1/2 marlas bearing Khasra No. 8341/287, Khewat No. 744, Khatooni No. 857 situated in village Khayalshah. Respondent No. 1 agreed to purchase the said plot through agreement to sell dated 22.7.1989 against consideration of Rs. 23,000/-, he paid Rs. 20,000/- as earnest money and remaining Rs. 3,000/- were payable at the time of execution of sale-deed. It was alleged that respondent No. 2 failed to execute the sale-deed but no grievance was alleged against petitioner nor any relief was claimed against her. The suit was ex parte decreed on 15.2.1992, subject to deposit of Rs. 3,000/-, the balance payable price. Respondent No. 1 filed execution of decree and sale-deed was executed in his favour, after that the respondent No. 1 prayed for issuance of warrant of possession of suit property. The petitioner Mst. Razia Bibi then filed application under Section 151, CPC claiming that she is purchaser of plot vide registered sale-deed dated 29.3.1990 measuring 4-1/2 marlas from respondent No. 2, and had constructed a building thereon after obtaining sanction of building plan from the Municipal Corporation, Gujranwala. She is residing in the said property and as such she is the absolute owner of the same, the petitioner also filed an application under Section 12(2), Code of Civil Procedure which was ultimately dismissed for non- prosecution, objection petition was also dismissed, appeal thereagainst was withdraAn and the petitioner again filed an application under Section 151, CPC in execution of decree, the said application was dismissed on 19.10.2004 revision was also filed on 1.3.2005. Hence the present petition.
2. Learned counsel for petitioner submits that executing Court cannot go behind the decree and admittedly decree is a decree for specific performance of agreement and possession of an open plot which is admittedly subsequent to the petitioner's sale-deed and as such the executing Court cannot pass the order for petitioner's dispossession. Further submits that petitioner is in physical possession of property, subject-matter of a decree and no order for demolition of the building could be passed in absence of any decree. He has relied on Muhammad Hassan and 6 others v. Pir Muhammad Younas Shah and 11 others (PLJ 1994 AJK 39).
3. Learned counsel for respondents submits that petitioner's application under Section 12(2), CPC has been dismissed and as such the learned executing Court is bound to execute the decree.
Further submits that petitioner was the party to the decree and as such petitioner could not claim any refuge on the ground that she has constructed house on plot after purchasing the same through registered sale-deed He adds that it is the executing Court alone who can execute the decree in its true letter and spirit. The petitioner has availed all possible remedies against the impugned decree and as such learned Courts below have rightly dismissed her objection petition through impugned order.
4. Heard. Record perused.
5. Respondent No. 1 filed a suit against respondent No. 2 for specific performance of an agreement qua the open plot measuring 4-1/2 marlas on 22.7.1990. In the said suit petitioner was subsequently added as defendant No. 2, the said suit was decreed ex parte on 30.1.1992, the petitioner filed an application under Section 12(2), CPC against ex parte decree. The petitioner's application under Section 12(2), CPC was dismissed on 18.5.1994 for non- prosecution. The petitioner filed an objection petition which was dismissed on 20.5.1997. The petitioner assailed order dated 20.5.1997 through an appeal and also filed an application for restoration of application under Section 12(2), CPC. After filing application for restoration of application under Section 12(2), CPC she withdrew the appeal against order dated 20.5.1997. .The respondent No. 1 again filed execution of decree dated 30.1.1992 on 23.5.1996 praying for issuance of warrant of possession of the property in petitioner's possession. The petitioner filed an application praying that even if it is assumed that decree has been rightly passed the same is against an open plot whereas the suit property is a constructed house and as such the decree plot whereas the suit property is a constructed house and as such. The decree is not executable against the petitioner.
The application was dismissed by the learned Trial Court vide order dated 19.10.2004 with special costs of Rs. 10,0001. The petitioner assailed the said order through an appeal which too was dismissed on 1:3.2005 which is the subject-matter of present petition.
6. The decree dated. 15.2.1992 is an admitted document between the parties,. The Trial Court passed the decree in the following terms:- "Suit for a decree of possession through specific performance of contract, in respect of land measuring 4-1/2 marlas out of Khasra No 83417287, Khewat No 744, Khatooni No 857 according to register Haqdaran for the year 1985-86, situated, at Khaiali Shah, bounded as North: Plot vacant, South: Plot Muhammad Jameel, East: house of other owner, West: Baar 20' and defendants be restrained from transfer of the plot in dispute to some one else.
Date of institution suit: 23.7.90 This suit is coming on this day for final hearing, before me (Ch. Abdul Hameed, Civil Judge 1st Class, Gujranwala) in the presence of Rana Muhammad Shabbir Khan, Advocate for the plaintiff and of ex parte against the defendants, it is ordered that an ex parte decree is passed in favour of the plaintiff against the defendant and he is directed to deposit the balance amount of Rs. 3,000/- in the Court till 15.2.1992."
7. In the first instance decree was executed and sale-deed was registered in terms of decree in favour of respondent No. 1. The petitioner challenged the decree through application under Section 12(2), CPC and objection petition but could not succeed. After the execution of sale-deed in favour of respondent No. 1, the execution petition was consigned to record. The respondent No. .2 again filed execution petition for getting possession and the present litigation erupted.
8. The dispute between the parties is that petitioner is claiming the ownership of property, on the basis of sale-deed dated 29.3.1990 in her favour. The. Respondent No. 2 instituted suit without impleading the petitioner on 23.7.1990 as party, however, subsequently through an amendment in plaint the petitioner was arrayed as defendant No 2 and decree was passed on 3.1.1992.
9. The question arose whether decree dated 3.1.1992 is executable against the petitioner or not?
Copy of plaint Exh.R-1 shows that petitioner was arrayed as defendant No. 2 through an amended plaint but surprisingly not a single word has been averred in the plaint against petitioner/defendant No. 2, no cancellation of sale-deed in favour of petitioner and demolition of superstructure was prayed. The prayer of suit is reproduced as under:- {{URDU TEXT}}11;.: ......4:(t;&10'..A.C.C__ lllavt /AN"
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10. Both the defendants failed to appear before learned Civil Court and an ex parte decree was passed on 15.2.1992. The prayer of suit will show that even decree against both the defendants was not prayed. The respondent No. 1 filed execution of decree, the petitioner contested the decree but failed and ultimately sale-deed was executed in favour of respondent No. 1 and file was consigned to record.
11. The respondent No. 1 then filed execution of decree for getting possession of plot. The petitioner again filed an application under. Section 151, CPC praying for dismissing the execution petition but the said application was dismissed on 9.10.2004 and appeal thereagainst also failed.
12. The main ground for dismissal of petitioner's application was that similar application on similar grounds was dismissed on 20.5.1997. The appeal against order dated 20.5.1997 was also withdrawn and learned Courts below held that petitioner's application is mala fide and decree is executable against the petitioner.
13. The facts stated above show that respondent No. 1 filed a suit for possession through specific performance against respondent No. 2 and it appears that when he came to know about the sale- deed in favour of petitioner, he arrayed the petitioner as defendant No. 2 but no relief was claimed against her and even a decree for cancellation of sale-deed in favour of petitioner alongwith demolition of superstructure was prayed. The property, subject-matter of suit, is admittedly a plot measuring 4-1/2 marlas. The averments of plaint shows that respondent No. 1 claimed the decree of open plot only against respondent No. 2 and not the building constructed thereon. Admittedly the petitioner constructed building on plot in dispute after the sanction of building plan by the Municipal Committee. Gujranwala and all these facts were in the knowledge of respondent No. 1 at the time of filing of amended plaint. The building plan was sanctioned on 11.6.1990 as is evident from Exh.A-3 and Exh.A-4 and the petitioner filed a suit on 23.7.1990. This fact shows that building plan was even sanctioned before the institution of suit. Perusal of plaint Exh.R-1 shows that no relief was claimed against petitioner nor it was asserted that the sale-deed in favour of petitioner be ordered to be cancelled and even no efforts were made for any amendment in decree.
14. In the above-said circumstances, the executing Court was bound to ascertain whether the decree is executable against petitioner or not? It is established principle of law that all questions relating to execution, discharge or satisfaction of decree has to be determined only by the executing Court. The executing Court under Section 47 of CPC is enjoying the ample powers to resolve the controversy between the parties. It is also a settled principle of law that executing Court has to confine it within the four corners of decree and not beyond that. Under Order 21, Rule 35, CPC the judgment-debtor is bound to hand over the possession of suit property against whom decree is passed. Learned counsel for the decree-holder argues with vehemence that under Rule 3, Order 21, CPC the petitioner is bound to deliver the possession of property to him, for application of the argument of learned counsel, Rule 35(3), Order XXI, CPC is reproduced as under:-- "35. Decree for immovable property.--
(1) (2) (3) Where possession of any building or enclosure is to be delivered and the person in possession, being bound by the decree, does not afford free access, the Court, through its officer may after giving reasonable warning and facility to any woman not appearing in public according to the customs of the country to withdraw, remove or open any lock or bolt or break open any doc: or do any other act necessary for putting the decree-holder in possession."
15. No doubt the word "Person in possession" is mentioned in Rule 3, CPC but person in possession is subject to qualification of "being bound by the decree". The word used being bound by the decree means the judgment-debtor against whom a decree has been. Passed and if any person in possession is a tenant, he could not be forced to deliver the possession. Perusal of impugned decree shows the mandate of decree as under:-- it is ordered that an ex parte decree is passed in favour of the plaintiff against the defendant and he is directed to deposit the balance amount of Rs. 3 000/- in the Court till 15.2.1992 (underline is of Mine).
This shows that decree was passed against respondent No. 2 only that too subject to deposit of Rs.
3,000/- by the respondent No. 1. Even if we minutely examine the wording of decree the respondent No. 2 has not been directed to hand over the property in dispute, but this will be very narrow interpretation of the . Decree, as the suit was for possession through specific performance of agreement, hence it will be deemed that on fulfilment of condition of deposit of Rs. 3,000/- the decree will be a decree for possession and judgment-debtor will be bound to hand over the possession of property to decree-holder.
16. In these circumstances, in my humble opinion the person in possession will be judgment-debtor oniy and admittedly in this case the judgment-debtor was not in possession of suit property even at the time of institution of suit , although as the petitioner was impleaded as defendant No. 2 but no relief of cancellation of sale.-deed in her favour and demolishing the superstructure of suit property was prayed against her.
17. The second argument of learned counsel for respondent No. 1 is that admittedly the decree is against suit plot and word used in Rule 3, Order 21, CPC or do any act necessary for putting the decree-holder in possession" cover the demolition of superstructure. This argument is also not helpful to respondent for the reason that petitioner is not a trespasser nor is unauthorized occupant of suit plot, he ente-ed into the plot on the basis of registered sale-deed, and the said sale-deed is admittedly before the institution of respondent No. 1's suit, he raised the superstructure with the permission of relevant authorities and such the words used in sub-rule (3) of Rule 35 of Order XXI "any act necessary for putting the decree-holder in possession occurring in sub-rule (3) of Rule 35 of Order XXI of CPC are not meant for demolition of superstructure belonging to petitioner.
18. The respondent himself has prayed a decree for possession of open plot against respondent No. 2 knowingly that petitioner is owner of said plot on the basis of registered sale-deed and she has constructed a building thereon. Respondent No. 1/decree-holder when impleaded the petitioner as party to the suit should have claim relief against petitioner for cancellation of her sale-deed as well as demolition of construction raised on the plot in dispute but no relief was claimed, in these circumstances the executing Court can maximum, direct the delivery of symbolic possession of land under the house. Learned' Trial Court recorded the evidence on petitioner's objection petition and respondent No. 1 appeared as R.W.1 and deposed as under:-- {{URDU TEXT}}2300 0/-e:21.; Liz tt Ir., 3000i-3 1/2000 ..t..1WL;JA).14,1;LI),7, L.Rx,.s.z LA5 c; f {{URDU TEXT}}LfC.X.,..d - 11; L.c.:)...; L_ Ltijc_ 1.1 r-"I` ',/' eY'/-*101 01.-L L. L;7.
31' ; -S-'/:.1)u) ? 2-- -'< "4" j.; _ Deposition of decree-holder is sufficient to prove that sale-deed in favour of petitioner and the construction thereon was in his knowledge when he impleaded her party to suit but no decree was claimed against her.
19. Learned Trial Court being the executing Court is duly bound to resolve the issue between the parties keeping in view the terms of decree and statements of parties but learned executing Court has decided the petitioner's application in slipshod manner without adverting to the facts and law applicable. The decree is against respondent No. 2 and not against the petitioner. The learned Court should have execute the decree by delivering the symbolic possession of suit plot and not more than that.
20. In view of the above, the impugned orders are set aside and case is remanded to learned executing Court with the direction that learned executing Court will decide the question of executeability of decree to the extent of delivery of symbolic possession of the suit plot. As it is an old case, learned Trial Court will decide the dispute between the parties within three (3) months on receipt of certified copy of this judgment.
21. There is no order as to cost.