Petitioners, representatives of Shahgotay Tribe of Charoon, Oveer, TehsiI Mastuj, District Chitral are aggrieved by the judgments and orders dated 24.3.2009 and 24.8.2009 passed respectively by Civil Judge/Illaqa Qazi, Booni District Chitral and District Judge/Zilla Qazi, Chitral, both dismissing their execution petition on the ground of limitation, have questioned the same through the instant revision petition before this Court praying for reversal of impugned judgments and orders.
2. The dispute between the petitioners on the one hand and respondents Mashooqay, Mughalay and Khush Ahmaday Tribes of Charoon, Oveer Tehsil Mastuj District Chitral on the other pertain to use of Irrigation water from "Oshahkogh Spring" and is spread over almost a period of four decades. The record would show that the first judgment between the, parties was given by Extra Assistant ,Commissioner, Mastuj at Booni on 12.11.1974 as a Riwaji Court and rights of the parties over the disputed spring water were determined subject to certain conditions regulating the distribution of water from the nullah known "Ushakoogh Gole". It appears that for some time, the parties did not put the order to execution being not in need of water due to sufficient rains in the area. However, later on, the petitioners moved the Assistant Commissioner, Mastuj who vide order dated 15.9.1985 determined the rights of the parties as under- "ORDER 15.9.1985.
Parties present in Court. Record perused through case file. In the light of the report of the Tehsildar at page-133 of the file, it is ordered that the water of the springs situated above in the nullah known as Ushakagho Gole will be the exclusive right of the tribe shaghotia, while the other party will have the exclusive right on the water of springs situated below in the same nullah. The parties are ordered not to interfere in the water rights of each other as determined by this order today.
The application is hereby disposed of. The case file is sent to record room.
Announced 15.9.1985. Sd/- XXXXXXXXX AC, Mastuj, Chitral".
This' order was challenged by the respondents before Deputy Commissioner, Chitral who vide his judgment dated 25.5.1987 proceeded to determine the rights of the parties which are spelt out in para-2 of his judgment reproduced herein:-- "2. This Court has gone through the relevant record available on the issue and heard both the parties' alongwith their legal counsels. After perusing the entire record alongwith the arguments this Court is constrained to make the following decisions:--
(i) The respondents "SHAGHOTIA" tribe shall have prior right over the use of the disputed spring water located above their lands. The rights of "SHAGHOTIA" tribe will be restricted to the extent of property presently held by them in possession. The water in addition to the requirements of "SHAGHOTIA" tribe, determined by their present land holding, shall however, be utilized by Moghellay, Mashooqay and Khosh Ahmada tribes living on the down-stream of the spring water.
The Shaghotia tribe shall no dispute the utilization of water by three, other tribes when it is above their requirements.
(i) The respondents "SHAGHOTIA" tribe shall have the prior right over the use of the disputed spring water located (ii)No-where the residents of Charun have been figured out prominently in the utilization of spring water. Therefore, no water rights shall be given to the residents of Charun from disputed spring water.
(iii)All the tribes alongwith the residents of Charun shall however, continue to take benefits from "USHAKOOGH COLE" when there is abundance of water due to snow melting in summer season. This will however not affect the rights of the parties as mentioned above regarding the user of the spring water, (iv)The above decision shall not take away the right of any party or tribe to have mutual consensus over the use of water in the area without affecting the respective rights of all the parties.
However, any mutual consensus has to be reduced in writing in competent Court of law.
Parties to bear their own costs.
Announced Dated Chitral the, 25th May, 1987: Sd/-xxxxxxxx Dy: Commr: Chitral", This order was maintained by Additional Commissioner, Malakand Division vide judgment dated 21.9.1987 as well as by Provincial Government vide judgment dated 8.8.1990 passed by Additional Secretary to Government of NWFP, Home and Tribal Affairs Department, Peshawar camp at Chitral.
3. Respondents Not satisfied with the judgments and orders passed in the hierarchy of Riwaji Courts assailed the same before Senior Civil Judge/Aala Illaqa Qazi, Chitral on 2.09.1990 through a representative civil suit seeking the following relief:-- "SUIT FOR:--
(1) Declaration:--
(i) That order of Assistant Commissioner, Mastuj dated 15.9.1985 is ab-initio void, illegal without jurisdiction, based on mala fide and not binding upon the plaintiffs and is liable to be set aside; and
(ii) That order of EAC Mastuj under delegated powers of D.C. Chitral dated 12.11.1974 which was not challenged before competent forum had attained finality and is not questionable in any Court of law; and (iii)That Assistant Commissioner does not exist in hierarchy of Riwaji Courts so he had/has no power whatsoever to re-open a finally decided case as locus poenitentiae is only available to the Court passing an order prior of, taking decisive steps and since this order dated 12.11.1974 was implemented so it cannot be withdrawn by the Court who passed it; and (iv)That order dated 19.9.1985 being passed/announced at 1900 at night is illegal without lawful authority, surreptitious as after Court hours even if a Court, has jurisdiction it becomes defunct officio and its order is not binding upon the plaintiffs; and (v)Since the order of Defendant No. 2 is illegal and without lawful authority and of no legal effect so subsequent orders of Defendants No. 3 to 5 are also illegal and liable to be set aside being in furtherance of an illegal without jurisdiction; and Permanent injunction to restrain the defendants from any sort of interference/claim against the spirit of order dated 12.11.1974 for ever.
In this representative suit Bearing No. 59/1 of 1990, an application for interim injunction was also filed and the record of the trial Court would show that except for 2.9.1990 ordering maintenance of status quo till 27.9.1990 no further order was ever passed on the said application and ultimately on conclusion of trial the suit was dismissed by Senior Civil Judge/Aala Illaqa Qazi, Chitral vide judgment and decree dated 2.11.1994 and even their appeal Bearing No. 67/13 of 1994 and revision petition bearing C.R. No. 388 of 1996 were dismissed by District Judge/Zilla Qazi, Chitral on 6.8.1996 and by this Court on 18.10.2002 respectively. Still being aggrieved the plaintiffs-respondents challenged the said judgments and decrees before the Honble Apex Court through CPLA No. 9-P of 2003 which was also dismissed by Honble Apex Court on 14.6.2006.
4. Petitioners who were thus claiming to be the decree-holders through their petition dated 6.12.2007 requested for execution of the same and in their said petition for execution they referred to the judgment and decree passed by Senior Civil Judge/Aala Illaqa Qazi, Chitral; District Judge/Zilla Qazi, Chitral dated 6.8.1996; this Court dated 18.10.2002 and the judgments passed by Riwaji Courts of Assistant Commissioner Mastuj, Deputy Commissioner, Chitral,, Additional Commissioner, Malakand Division and Additional Secretary, Government of NWFP, Home and Tribal Affairs Department, Peshawar respectively on 15.9.1985, 25.5.1987, 2.9.1987 and 8.8.1990. The respondents contested this execution petition through their detailed objections dated 17.7.2008 and it was thereafter that Civil Judge/Illaqa Qazi, Booni District Chitral through judgment and order dated 24.3.2009 held the execution barred by time and accordingly dismissed the same.
5. The Judge of the Executing Court held that the executable decree and order had been passed in favour of petitioners on 15.9.1985 which attained finality through the judgment dated 8.8.1990 passed by Additional Secretary Government of NWFP, Home and Tribal Affairs 7' Department Peshawar and that the execution petition having not been filed within a period of three years was on its face barred by time and since in the subsequent litigation of civil suit commencing from the Court of Senior Civil Judge/Aala Illaga Qazi, Chitral and terminating vide judgment dated 14.6.2006 passed by Hon'ble Apex Court, none of the Courts had suspended the executable judgment and order of the Riwaji Courts, therefore, benefit of Section 14 Limitation Act cannot be availed of by the petitioners, nor have they moved any such application in that respect.
Petitioners appeal against the said judgment and order was also dismissed by District Judge/Zilla Qazi, Chitral vide judgment and order "-- dated 24.8.2009.
6. Mr. Amir Gulab Khan, Advocate, representing the petitioners argued that the decree/order passed in 1985-87 was in its nature of prohibitory injunction and that the same can be put to execution as and when the rights given under the said decree/order are threatened and violation of the same takes place; that though the Riwaji Courts finally decided the dispute on 8.8.1990 through the judgment delivered by the Additional Secretary Home and Tribal Affairs of the.
Provincial Government but that was immediately challenged through civil suit on 2.9.1990 and thus was not put to execution till ultimate decision of the civil suit by August Apex Court on 14.6.2006. He accordingly pressed for reversal of the impugned judgments of the two Courts.
7. As against that Mr. Abdul Zakir Tareen, Advocate, representing the respondents argued that the decree/order could have been put to execution within a period of three years and that the Courts in the hierarchy of Riwaj had ultimately decided the matter on 8.8.1990, therefore, the execution petition filed on 7.12.2007 was hopelessly barred by time. It was also argued that the decree/order being attempted to be executed was in fact a declaratory in nature and not a decree for prohibition and accordingly not executable. The learned counsel also argued that notwithstanding its being non-executable, challenge to it before a Court of general jurisdiction through a civil suit was also no bar to execute the said judgments/orders and thus the execution proceedings were rightly held to be time barred by the two Courts below. In support of his contentions learned counsel placed reliance on the judgments reported as PLD 1968 Peshawar-181 'Muhammad Jan Vs. Suleman and others", 2001 CLC 103 "Toor Vs. Abdul Qadir", 2006 CLD 885 "Khalid Latif Vs. UBL and others", 1996 SCM R 759 'National Bank of Pakistan Vs. Mian Aziz-ud-Din and seven others", 2007 SCM R 983 'Mst. Hakam Bibi through LRs Vs. Khushi Muhammad through LRs" and 2007 SCM R 1929 "House Building Finance Corporation of Pakistan Vs. Rana Muhammad Iqbal through LRs" and accordingly requested for dismissal of the revision petition by maintaining the concurrent judgment of the two Courts below.
8. Arguments heard. Record perused.
9. Section 48 of the Code of Civil Procedure 1908 provides period of limitation for execution of decrees not being a decree granting an injunction which is reproduced as under:-- "Section 48 C.P.C.
Execution barred in certain cases.--(1) Where an application to execute a decree not being a decree granting an injunction has been made, no order for the execution of the same decree shall be made upon any fresh application presented after the expiration of (six) years from- (a)the date of the decree sought to be executed, or (b)where the decree or any subsequent order directs any payment of money or the delivery of any property to be made at a certain date or at recurring periods, the date of the default in making the payment or delivery in respect of which the applicant seeks to execute the decree.
(2) Nothing in this section shall be deemed--
(a) to preclude the Court from ordering the execution of a decree upon an application presented after the expiration of the said term of (six) years, where the judgment-debtor has, by fraud or force, prevented the execution of the decree at Sometime within (six) years immediately before the date of the application; or
(b) to limit or otherwise affect the operation of Article 183 of the First Schedule to the Limitation Act, 1908."
A bare reading of the above provision would show that the period provided under Section 48 ibid relates to execution of decrees other than injunction decrees.
10. The decree in the instant case as reproduced in Para-2 of this judgment and pressed into service for its execution is an injunctioncum-declaratory one. Though declaratory decrees are not executable but injunction decrees are executable under the provisions of Order XXI, Rule 32 CPC and more particularly its sub-rules (1) and (5) provides the mode of execution of such decrees which are reproduced for ready reference:-- "ORDER XXI C.P.C. Execution of Decrees and Orders.
"Rule 32. Decree for specific performance, for restitution of conjugal rights, or for an injunction.--
(1) Where the party against whom a decree for the specific performance of a contract, or for restitution of conjugal rights, or for an injunction, has been passed, has had an opportunity of obeying the decree and has willfully failed to obey it, the decree may be enforced in the case of a decree for restitution of conjugal rights by the attachment of his property or, in the case of a decree for the specific performance of a contract or for an injunction by his detention in prison, or by the attachment of his property, or by both.
(2)xxxxxxxxx (3)xxxxxxxxx (4)xxxxxxxxx (5)Where a decree for specific performance of a contract or for an injunction has not been obeyed, the Court may, in lieu of or in addition to all or any of the process aforesaid, direct that the act required to be done may be done so far as practicable by the decree-holder or some other person appointed by the Court, at the cost of the judgment-debtor, and upon the act being done the expenses incurred may be ascertained in such manner as the Court may direct and may be recovered as if they were included in the decree."
11. A bare reading of sub-rule (1) as reproduced above would show that a decree for an injunction can be enforced by detention in prison- or by the attachment of his property or by both, of the person who had an opportunity of obeying the decree and has willfully failed to obey. Similarly, under sub-rule (5), a decree for injunction if not been obeyed, the Court may in lieu of or in addition to all or any of the process aforesaid direct that the act required to be done may be done so far as practicable by the decree holder or some other person appointed by the Court, at the cost of the judgment-debtor and upon the act being done the expenses incurred may be ascertained in such manner as the Court may direct and may be recovered as if they were included in the decree.
12.It appears that none of the two Courts below took notice of the above provisions of law, nor did any of the learned counsel while arguing this revision petition refer to the same. Since the period provided under Section 48 CPC is not applicable to the execution of injunction decrees, nor is any such restrictive period provided any-where else in the code or under The Limitation Act, 1908" while the language of Order XXI, Rule 32 CPC would suggest that as and when on having an opportunity to obey the decree and willfully failed to do so, then the provisions of sub-rule (1) and sub-rule (5) would come into play and the defaulter be dealt with in accordance with the said provision.
13. The question of executability of such decree was considered in the case of "Salma Akhtar.
Bhatti Vs. Mehboob Qadir Shah and five others" 2004 YLR 1218 (Lahore) where on overall analysis of the case law on the subject it was held that the declaratory decree is not executable and prohibitory decree can be executed only when it is violated and that decree granting permanent injunction prohibiting someone from doing an act is not capable of an execution, as there is nothing to execute until there is a violation of prohibitory injunction and further that provisions of Order XXI, Rule 32 CPC applies to both mandatory and prohibitory injunctions and further that application to enforce a decree granting perpetual or prohibitory injunctions is not subject to limitation, if a prohibitory injunction is disobeyed, fresh cause of action arises for which remedies either by issuing of mandatory injunction or in some other way.
In the case of 'Muhammad Malik and 4 others Vs. Mansoor Siddiqui and four others" 2004 YLR 890 (Lahore). It was held as under:--
(b) Civil Procedure Code (V of 1908)-- --O.XXI, R.32--Execution of decree in cases where some injunction has been passed--Pre- condition--Where a party is directed to do some act as well as where he is directed to abstain from doing an act, decree in such cases can only be executed in the manner given in O.XXI, R.32, C.P.C--Before allowing execution under O.XXI, R.32, C.P.C., the only condition is that the Court has to see if the judgment-debtor had any opportunity of obeying the decree or whether he has willfully failed to obey the same. {p.893}".
(c) Specific Relief Act (I of 1877)-- --S.54--Civil Procedure Code (V of 1908). S. 115 & O.XXI, R.32--Decree for injunction--Execution-- Concurrent findings of fact by the Courts below--Suit for permanent injunction was decreed in favour of plaintiffs and defendants were restrained from making any construction on the share of plaintiff,, and they were also restrained from transferring that specific portion to some other person--Defendants, in violation of the terms of decree, transferred the specific portion of land to other persons and raised construction on the same--Plaintiffs filed execution petition but both the Courts below concurrently dismissed the same--Validity--Both the Courts below had misconstrued the provisions of O.XXI, R.32, C.P.C. and orders were passed in violation of the principles laid down by the superior Courts--High Court set aside the concurrent findings of both the Courts below and the application was remanded to Executing Court for decision on merits accordingly.
Muhammad Hussain and others V. Muhammad Aslam 1988 SCM R-151; and Municipal Committee, Sonepat V. Dharem Chand and others AIR 1954 Punjab 197 ref.
The cases of 'Muhammad Azam Khan and 7 others Vs. Naubat Khan and 3 others" 1990 MLD 1450 (Lahore), (2) 'Muhammad Hussain and others Vs. Muhammad Aslam" 1988 SCM R-151, (3) Toon Lal and others Vs. Sonoo Lall and others AIR 1938 Patna-522, (4) 'Mool Chandra Jain Vs. Jagdish Chandra Joshi" AIR 1955 Alabad-385, (5) "Nawab Singh Vs. Mithu Lal and others" AIR 1935 Alabad- 480 (6) "Prag Dutt Vs. Kedar Nath and others" AIR (32) 1945 Oudh-81 and (7)" V. S. Alwar Ayyangar Vs. Gurusamy Thevar" AIR 1981 Madras 354, dealing with almost similar question of law can also be referred with advantage.
The case law relied upon by learned counsel for the respondents referred to in Para-7 of this judgment are not attracted to the facts of the present case, as none deal with execution in respect of an injunction decree.
The upshot of the above discussion is that the two Courts below have failed to consider the case in the above perspective of Order XXI Rule 32 CPC and thus their impugned judgments and orders suffer from material illegalities and irregularities. Revision Petition which was heard at pre- admission notice is admitted to full hearing and allowed. The impugned judgments and orders of the two Courts below are accordingly set aside and the execution petition filed by the petitioners is held to be not barred by time and accordingly sent back to the Executing Court for proceeding with it in accordance with the provisions of Order XXI Rule 32 CPC and the observations made herein above. Parties to appear before Executing Court on 22.9.2010. Office shall send the record immediately to the said Court. Parties to bear their respective costs.