' KHALID MEHMOOD KHAN, J.--- The petitioners have filed the present writ petition under Article 199 of the Constitution of(?) Islamic Republic of Pakistan, 1973.
2. Brief facts of the case are that the suit property was purchased by the petitioners Nos.1 and 2 vide Mutation No 4281 attested on 25-4-1994. That respondent No,1 filed suit for possession through preemption against, the aforesaid sale transaction, which was contested by the petitioners by filing written statement and after recording the evidence, the learned Civil Judge, Oghi finally dismissed the suit on 27-10-1998:The respondent No,1 went in appeal which was accepted by the Additional District Judge and decreed the suit in favour of respondent No 1. Aggrieved from the said judgment and order of the lower appellate court, the petitioner No 1 filed an appeal before this court which was modified vide order dated 23-5-2006 to the extent of "the plaintiff pre-emptor is liable to pay the amount of Rs 47,845 as the cost of construction over the landed property as made by the vendee defendants etc. Within two months failing which the suit shall stand dismissed. This judgment of the High Court was upheld by the apex Court vide judgment dated 7-9-2006. The execution petition was filed but respondent No,1 submitted an application for appointment of commission to determine the cost of improvements. That the respondent No,1 filed another application to the executing court that the petitioners may not be allowed to withdraw the cost of improvement till the report of commission. Later on he submitted another application for restraining the petitioners from withdrawal of the cost of taxes except the amount of mutation fee of Rs,13530 paid as local taxes. That the executing court accepted the above applicatidn of respondent No,1 and allowed him to withdraw the amount of improvement and mutation fee deposited except the' amount of improvement assessed by the bailiff of the court. During the pendency of suit, respondent No,1 sold out half of the property in dispute through Mutation No,7882 dated 30-8-2007 in lieu of Rs,2 Lac in favour of respondents Nos.2 and 3. That order of executing court dated 7-2-2007 and warrant of possession dated 24-1-2007 are illegal, without lawful authority. Hence the present writ petition.
3. The learned counsel for the petitioner contended that the impugned order was upheld by the august Supreme Court of Pakistan. The decree was passed on payment of Rs,540,000 as pre- emption money and Rs,474845 for payment of improvement carried out by the petitioner/judgment-debtor and also to pay the. District Council and mutation fee etc to the petitioner. He argued that during the execution IB proceedings the respondent/decree-holder had moved an application for appointment of local commissioner on the ground that petitioner/ judgment-debtor had removed the superstructure i,e, cemented block, iron sheets and doors etc. From the. Suit property value of which was assessed as Rs,47845 by the local commissioner during the trial. The learned counsel for the petitioner stated that executing court was not competent to alter or change the decree by appointing local commission/bailiff for assessment of removal of superstructure. He further contended that on the basis of bailiff report who inspected the spot in absence of the petitioner and submitted his report according to which only Rs,710 were assessed as value of remaining blocks allegedly proved on the spot. He also argued that the amount of Rs,13530 deposited regarding District Council fee etc. Wrongly assessed as compared to the original amount had paid at the time of attestation of sale mutation.
4. On the other side, the learned counsel for the respondents contended that the decretal amount regarding improvement which was assessed by the local commissioner was only payable to the petitioner in case the superstructure remained intact on the suit-land. Whereas in the present case, the petitioner/judgment-debtor had removed the superstructure for which decree of Rs,47845 regarding improvement was passed in favour of petitioners. In the prevailing circumstances, respondent No,1 decree-holder has rightly moved application before the executing court under section 47, C.P.C. For assessment of superstructure which was removed from the suit property by the petitioner. During the execution proceedings, the petitioner did not turn up in spite of service. He supported the report of bailiff on the basis of which executing court had assessed that petitioner/decree-holder is entitled for only remaining superstructure of Rs,710. He supported the judgment of the executing court.
5. We have heard the arguments and perused the record. Our finding is as under:---
6. The decree was passed by the trial court which was upheld by the apex court. The decree has attained finality after passing of the decree. The trial court becomes functus officio after passing of decree. The decree can be altered/modified or set aside only by filing an appeal/revision or through review before the same court. The learned counsel for the petitioner further contended that objection petition was moved by the respondent decree-holder under section 47, C.P.C.
Because all disputes between the parties can be resolved during the execution proceedings.
Section 47 of C.P.C. Is read as under:- "Questions 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."
7.
The contention of respondent is wrong, incorrect rather illegal on two scores, firstly, that the execution court cannot re-determine or go beyond the decree. Executing court is bound by the decree and has to execute as per terms and conditions of the decree. Second point for consideration is whether on the basis of report of bailiff executing court can alter or determine the improvement assessed by the local commissioner which was upheld by the Supreme Court. So far as the first point is concerned, the bare reading of the section 47 of C.P.C., it is clear that executing court can only decide the dispute arising out of the decree passed, but not beyond the decree. It has been held in a case by the august Supreme Court in case titled Province of Punjab v. Burewala Textile Mills reported in 2001 SCMR 397, wherein the executing court had changed the decree and it was held that executing court cannot modify the decree passed by the trial court and executing court is only bound to execute the decree as it is. In another case, reported in 2001 SCM R 405 titled Iltaf Hussain v. Nawaz, in that case, the executing court on application of decree-holder modified the decree and deducted the mortgage amount from the pre-emption money and after deduction of mortgage money from pre-emption amount; the remaining amount was ordered to be deposited in the court as per sweet will of the decree-holder. It was held that executing court has gone beyond the terms and conditions of the decree and has modified it, for which court was not competent, hence suit was dismissed. The same dictum was adopted in case Dr. Ilyas v. N.L.C.
Reported in 2002 CLC 1609. In another case of Muzaffar v. Ali Khan reported in 1989 CLC 2342 wherein, decree-holder instead of depositing Rs,2368.16, deposited Rs,2368.12 only short of four paisa and decree was set aside and suit of pre-emption was dismissed.
8. In the present case, the bailiff was appointed in the absence of the judgment-debtor who visited the spot in absence of the petitioner/judgment-debtor. Bailiff did not record the statement of any other person at the time of spot inspection. Most important aspect of the case is that neither the bailiff was examined by the court nor his report was exhibited in the court. The executing court has illegally based its decision on report of bailiff which was neither produced by the bailiff nor it was exhibited hence, such a document has na evidentiary value in the eye of law. Moreover, on the basis of such report, report of local commissioner cannot be set aside because the local commission report was upheld up-to the Hon'ble apex Court. The executing court wrongly and illegally has modified the decree regarding the improvement granted by the trial court. The respondent decree-holder had deposited the decretal amount of Rs,47,845 regarding the improvement along with Rs,13530 as District Council and mutation fee before the executing court.
After the ex parte report of bailiff respondent-decree-holder had drawn the amount of Rs,33,605 after deducting the said mutation fee Rs,13530 and Rs,710 assessed by the bailiff from the amount of Rs,47845 which was deposited on the basis of decree. Respondent has withdrawn Rs,13530 which was assessed as District Council and mutation fee in the light of 'decree for which respondent had no authority to withdraw, hence respondent violated the terms of decree and had not complied with as per direction of court which was essence of the decree. In case "Ishar Singh v. Pashawari Rai" reported in 1924 AIR (Lahore) 384, the such-like controversy was resolved and in that decree due to non-compliance of the decree, the suit was dismissed. In the present case, the amount of Rs,33605 has been withdrawn on 14-2-2007. After withdrawal of amount by illegally modifying the decree the very decree passed has been ceased to exist.
9. As the respondent/decree-holder has violated the terms and conditions of decree, the withdrawal of amount deposited for mutation fee and illegally modifying and altering the decree, the suit stood dismissed therefore, the subsequent mutation executed by respondent/decree- holder, after passing of the decree also stands cancelled.
10. As the suit of the respondent has been dismissed as the decree is ceased to exist therefore, the contention of petitioner regarding enhancement of District Council fee, mutation fee and other expenditure incurred on the suit/sale mutation becomes immaterial.
11. For the abovesaid legal and factual position of the case, the instant writ petition is allowed as prayed for.