Impugned herein is the judgment and order rendered by the learned Appellate Court lower Dir dated 24.3.2010, whereby while rejecting the appeal of the petitioner the said Court has observed that since the decree for specific performance of the Contract passed in favour of Respondent No. 1 against Respondents No. 2 and 3 vide judgment dated 5.5.2005 was properly put to execution and as after the rejection of the objection petition vide order dated 16.12.2009 the said decree had already been satisfied and no proceedings at all had remained pending before the Executing Court, as such the appeal was not maintainable.
2. Short, but relevant facts forming the background of, the instant petition are that Respondent No. 1 in the capacity of plaintiff filed a suit for specific performance of the Contract on the basis of agreement dated 6.6.2002 against Respondents No. 2 and 3 with regard to the disputed property on the ground that they both had borrowed cash amount to the tune of Rs. 3,90,000/- and in the event of its non-return within the stipulated period they had bound themselves to alienate the suit property in his favour.
3. On being summoned the said defendants did not appear, thus ex parte decree was granted against them. Later on Defendant No. 2/Respondent No. 3 submitted an application for setting aside the said decree, which was accepted on payment of Rs.2,000/- as costs. He filed his written statement and out of the divergent pleadings of the parties, the trial Court framed essential issues and put the parties on trial, consequent upon the conclusion whereof the suit of the Plaintiff- Respondent No. 1 was dismissed vide judgment and decree dated 21.12.2004. Respondent No. 1 being dissatisfied with the said judgment preferred an appeal against that and the learned Appellate Court while accepting the same passed a decree in his favour as prayed for vide judgment and decree dated 5.5.2005. The said decree was put to execution and before the decree could be satisfied, the present petitioner filed an objection petition on 28.6.2008 against the respondents on the ground that the suit property was in fact his ancestral property and had been in his possession without any interruption and the judgment-debtors had no concern with it. At the same time he also made a separate application for the suspension of the execution proceedings.
The said claim of the petitioner was strenuously opposed by the decree-holder and the learned Executing Court vide order dated 16.12.2009 without recording evidence rejected the petitioner's objection petition. Feeling aggrieved of the said order the petitioner filed an appeal before the Court of District Judge/Zilla Qazi Dir Payeen at Timargara, who vide the impugned judgment has declined to entertain the appeal of the petitioner on the ground that since after the rejection of the objection petition the decree so granted stood satisfied as such there did not remain any proceedings pending before the Court of execution, thus the instant petition.
4. The learned counsel for the petitioner vehemently argued that although after the dismissal of his objection petition u/S. 47 of the Civil Procedure Code, the decree had been satisfied and respondent/decree-holder obtained the possession of the disputed property, yet his objection petition was entertainable because the existence of execution proceedings for entertaining an objection within the ambit of Section 47 CPC is not a pre-requisite condition; that as due to the bar of filing a separate suit, the only remedy available to the petitioner to establish his right is u/S. 47 CPC but owing to the dismissal of his appeal on technical ground, he has been left in the lurch.
5. On the contrary learned counsel for the respondent/decree-holder while repelling the said contentions, maintained that as at the time of filing and hearing of the appeal, the decree in favour of his client had already been satisfied and there were no pending execution proceedings, thus the impugned order is not vulnerable to any exception.
6. Arguments heard and record perused.
7. The detailed scrutiny of the record shows that the suit of Respondent No. 1 was basically for the specific performance of a Contract founded upon the agreement deed referred to above and the averments of the plaint and recitals of the sale deed show that Defendants/Respondents No. 2 and 3 had borrowed certain amount from him and it was agreed that in the event of non-payment they in lieu thereof would alienate the disputed property in his favour.
8. The moot question needing resolution by this Court is that whether the objection petition u/S. 47 CPC either by the judgment-debtor or any other aggrieved person is not entertainable at all and the existence of execution proceedings is a pre-requisite condition particularly when the remedy by way of separate suit to the said objector to establish his right is barred. The answer to this question in the opinion of this Court is certainly in negative. The reason is that all such questions are supposed to be adjudicated upon by the Executing Court u/S. 47 of the Civil Procedure Code coupled with the relevant Rules of Order XXI CPC. For the sake of proper comprehension Section 47 CPC is reproduced as under:-- "47. Question to be determined by the Court executing decree.--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 the section as a suit or a suit as a proceeding and may, if necessary, order payment of any additional Court-fees".
9. A bare reading of the Section ibid makes it explicitly clear that all questions relating to the execution, discharge, or satisfaction of a decree are to be determined by the, Executing Court and not by a separate suit, meaning thereby that the said section of law is of a wider connotation and any objection filed thereunder has been given the status of a suit and in certain cases under this relevant provision the Executing Court is burdened with the legal, duty to frame issues and record pro and contra evidence of the rival claimants.
10. As discussed above that when the petitioner was filing his objection petition, on whatever grounds the same might be based, but at that relevant time the execution proceedings in progress and even at the time of the rejection of his objection petition, the decree in favour of Respondent No. 1 had not yet been finalized or satisfied. If after the dismissal of the objection petition vide order dated 16.12.2009, Respondent No. 1 as a decree-holder succeeded somehow or the other in obtaining the possession of the disputed property, and the file of execution was consigned to the record room the same would never mean that the petitioner was rendered remediless from onward seeking the redressal of his grievance before the next forum, particularly when the order of the Executing Court was appealable. The approach of the learned appellate Court refusing to entertain the appeal of the petitioner on the ground of non-existence of the execution proceedings is highly misconceived and the result of misapplication of judicial mind and misinterpretation of the supra referred provision of the procedural law. Identical question when came up for consideration before the Lahore High Court in a case reported as 2003 CLC 10, titled "Mst. Arshad Bibi Vs. Ali Muhammad and others" it was held:-- "S.47 & O.XXI, Rr. 100, 103--Execution of decree---Objection petition--Decree was put to execution to which objection petition was filed--Pending objection petition, decree was executed, possession of property in dispute was delivered to the decree-holder and file relating to execution was consigned to record--Executing Court dismissed objection petition after noting that decree had been satisfied and file of execution having been consigned to records, objection petition had been rendered infructuous---First appeal against order of Executing Court was dismissed by Appellate Court----Validity---Executing Court, under provisions of S.47 & ()XXI, Rr.100 & 103, C.P.C. was bound to decide questions pertaining to execution and satisfaction of decree---Order XXI, Rr.100 & 103 C.P.C. had further provided that all questions pertaining to title and possession were also to be decided by Executing Court and a separate suit had been expressly barred----Courts below, in circumstances, had acted without lawful authority and without jurisdiction refusing to decide objection petition only on ground that possession had been delivered and decree had been satisfied--High Court in exercise of revisional jurisdiction set aside orders of both Courts below with direction that Executing Court would requisition record of case and decide objection petition in accordance with law."
11.What can easily be inferred from the above observation elucidated in the said judgment is that even if at the time of filing the objection petition, there are no execution proceedings pending before the Executing Court yet the said Court is required to requisition the record of the case and decide the objection petition in accordance with law what to speak of the non-existence of execution proceedings at the time of filing of the appeal.
12. Likewise the apex Court in its judgment reported as 2003 SCM R 181 titled "Riaz Hussain and others Vs. Muhammad Akbar and others" it has been made more than crystal clear that the existence of execution proceedings is not a sine quo non for entertaining an objection petition. At the same time the import object and scope have also been highlighted in a very explicit and vivid manner holding that any contrary view limits the scope of the said Section of Law. In the presence of the said reported case the question in hand clinches in clear words and there does not remain any confusion to form a second opinion. For convenience sake the relevant citation 'B' & 'C' is reproduced as under:-- "'B' Civil Procedure Code (V of 1908)-- S.47---Objection petition----Import, object and scope--- Objection petition filed by judgment- debtor under S.47, C.P.C. has a very wide scope and the petition is akin to suit and for that very reason it contains an in-built provision empowering the Court to treat the objection petition as a suit subject to certain conditions . . . . . .Object of Legislature is to provide an opportunity to judgment-debtor to make an objection petition even if decree-holder .withholds 'the execution petition and gets the decree satisfied through some other mode----Contrary view limits the scope of S.47, C.P.C. and thus militates against the object and intention of the Legislature----Restriction to file objection petition under S.47; C.P.C. in absence of execution application would take the judgment-debtor to a point where he is left with no remedy and forum for redressal of his grievance----Objection petition under S.47, C.P.C. can be filed in the absence of execution petition. `C' Civil Procedure Code (V of 1908)---- S.47 & O.XXI. Rr.10, 22, 23---Objection petition without execution application----Word "desires" as used in O.XXI, R. 10, CPC----Scope and applicability----Declaratory decree was executed without filing . of execution application by decree- holder . . . . . .Judgment-debtor filed objection petition u/S. 47, CPC against such execution of the decree---Executing Court and Appellate Court dismissed the petition of the judgment-debtors but High Court in exercise of revisional jurisdiction allowed the petition----Decree holder contended that the objection petition u/S. 47 CPC was only maintainable when execution application was filed and notice under 0. XXI. R.' 22, CPC was issued to the judgment-debtor---Validity----Due to non-filing of execution petition by decree-holder the judgment-debtor was left high and dry----Right to file objection petition conferred on judgment- debtor by the Civil Procedure Code, 1908 was a vested right which could not be denied by blowing the expression 'desires' used in O.XXI, R.10, CPC. out of proposition or raising hypertechnical ground that non-filing of execution petition was a bar to maintainability of objection petition Pendency of application for execution of decree was not a condition precedent for filing of an objection petition u/S. 47 CPC. Supreme Court declined to interfere with the order passed by High Court---Appeal was dismissed."
The short and long of the above discussion is that as the learned Appellate Court through its erroneous and misconceived approach while refusing to entertain the appeal of the petitioner on the said ground has caused immense damage to his interest besides miscarriage of justice, hence interference has become inevitable. In this view of the matter as the petitioner has succeeded in establishing a case of indulgence of this Court as a Court of supervisory jurisdiction within the ambit of Section 115 CPC, thus this Court is left with no alternative but to hold that the impugned judgment being the produce of material irregularity, illegality and the said legal infirmity is not sustainable. Resultantly the petition in hand is accepted, the impugned judgment of the learned Appellate Court is hereby set aside and the case is remanded .to the said Court to decide the appeal of the petitioner afresh within the parameters of the principles laid down in the judgments referred to above and under the provisions of Section 47 and Order XXI, Rules 99 and 100 CPC.
Parties are left to bear their own costs.