' MUHAMMAD ALI MAZHAR, J.--- This constitution petition has been preferred against the order dated 11-5-2006, passed by the IIIrd learned Additional District Judge, Khairpur in Civil Revision Application No,9 of 2002, whereby the order dated 13-6-2002 passed by the learned Civil Judge Kotdiji in Execution Application No,8 of 2002 was set aside and the execution application was dismissed.
2. Succinctly, the facts as alleged in the memo of petition are that Sikni Plot C.S.No, 30 is owned by the petitioner while another Plot C.S.No,26 is being used as passage leads to National Highway. It is further contended that the Plot C.S.No, 31 was purchased by the respondent, which is adjacent to Plot C.S.No,26. In the year 1972 petitioner's ancestor Haji Muhammad Siddique had filed a Civil Suit No, 50/72 against the respondent and some other persons for declaration and injunction with the prayer to eject the occupant from illegal possession and also restrained them from constructing the wall over the plot or to close the passage. The aforesaid suit was decreed vide judgment dated 31-10-1974 with the observation that the parties have admitted that the 'Plot C.S.No, 26 belongs to Municipal Authority Khairpur.
3. Being aggrieved by the aforesaid judgment and decree, the ancestors of the present respondent preferred a Civil Appeal No,15/76, but it was rejected vide order dated 21-6-1977 on the ground that Sindh Public Property (Removal of Encroachment) Act, 1975 has been promulgated, therefore, the appeal was abated with the directions that the aggrieved party may seek their remedy under sections 12 and 13 of the said Act in which a Tribunal was also constituted. After rejection of appeal, the ancestors of the respondent did not challenge the order before any forum and the matter attained finality. Record further shows that the present petitioner along with three other petitioners had filed a F.C.S.No, 244 of 1986 for declaration, damages and permanent injunction against one Abdul Majeed, Municipal Committee and National Highway Department, in which the order dated 21-2-1985, passed by the defendant No,2 in favour of the defendant No,3 was challenged along with the relief of permanent injunction. This suit was dismissed vide judgment dated 3-3-1991 on the ground that the plaintiff was not owner of Plots Nos.27, 38 and 30, therefore, he could not claim the right of easement over the government plot. This judgment was assailed by the petitioner by way of Civil Appeal No,33 of 1991, which was dismissed on 14-9-1995 with the observation that the petitioner had filed the suit in the wrong Court, therefore, the suit could not be decreed but this judgment and decree will not take away their rights of easement granted to them by the decree of Civil Judge in Civil Suit No,50 of 1972. Against this concurrent finding, the same petitioner had filed a Civil Revision No,65 of 1995 in this Court but did not find favour and vide order dated 10-12-1997, the revision application was also dismissed. The petitioner ultimately filed a Civil Petition for leave to Appeal No,27-K of 1998 in the honourable Supreme Court, which was also dismissed vide order dated 6-7-1998 with the observation that the judgment and decree in favour of petitioner/plaintiff in Suit No,50 of 1972, however, did not justify grant of relief claimed in Suit No,244 of 1986, which was rightly declined by the courts below. Since the right acquired by the petitioner under the decree of Civil Court in Suit No, 50 of 1972 has been fully reserved/protected while dismissing their Suit No,244 of 1986, the learned single Judge rightly declined to interfere with the judgment and decree passed by the trial Court which was affirmed by the first appellate Court.
4. It is further contended that in the year 1986, the respondent again attempted to close the passage leading from Plot C.S.No,26, therefore, the petitioner filed a Suit No,8 of 1997 (Old No,228/1986), for permanent injunction in the Court of Civil Judge, Kotdiji. The defendant Lal Bux had filed written statement and vide judgment dated 11-12-1997, the suit was decreed and as a result thereof, the defendant was directed to remove the wall constructed by him on Plot C.S.No,26 within thirty days.
5. The learned counsel for the petitioner argued that the Civil Suit No,8 of 1997 was decreed but no appeal was filed by the respondent, assailing the aforesaid judgment and decree in any court of law, therefore, the aforesaid judgment and decree had attained finality. Consequently, the petitioner had filed execution application for satisfaction of decree. Notice was issued and the judgment-debtor/ respondent had also filed his objections, however, vide order dated 13-6-2002, the execution application was allowed by the trial Court with the direction to the judgment-debtor to remove the wall constructed by him within thirty days. It was further averred by the learned counsel that after allowing the execution application, the executing court issued a writ for the removal of the wall and in view of that, wall was removed and decree was fully satisfied. Against the aforementioned order, the respondent filed a Civil Revision No,9 of 2002 in the Court of IIIrd Additional District Judge, Khairpur and vide order dated 11-5-2006, the learned appellate Court allowed the revision application on the ground that the cases between the parties went up to the High Court and Supreme Court and the matter was decided in favour of the applicant and it was held that Abdul Razzak and others are in illegal possession. It was further observed in the impugned order that in view of the orders passed by the High Court on 10-12-1997 and the honourable Supreme Court on 6-7-1998, the respondent Abdul Razzak has been declared encroacher, therefore, the execution was not maintainable, consequently the revision application was allowed and the execution application was dismissed. The learned counsel further contended that after satisfaction of decree, there was no lawful justification to allow the revision and dismiss the execution application which was already allowed and disposed of and the disputed wall was also removed. He further contended that in the year 1986 the suit was filed only for restraining the respondent not to construct the wall and it was not for any declaration as to the title but the suit for permanent injunction was filed in order to safeguard the easement rights already protected vide judgment dated 14-9-1995 passed in the Civil Appeal No,33 of 1991 which right was further affirmed by the honourable Supreme Court in its order dated 6-7-1998. Since in the year 1986, the respondent again attempted to raise the wall, therefore, keeping in view the exigency in the matter, fresh suit for permanent injunction was filed.
6. Conversely, the respondent Lal Bux appeared in person and he simply supported the impugned order and argued that the present petitioner has no right and authority either to file the suit for permanent injunction or to move execution application for the satisfaction of decree. He however, did not controvert the right of easement granted to the petitioner Haji Muhammad Siddique, consequent to Suit No,50 of 1972.
7. After hearing the pros and cons, we have reached to the irresistible conclusion that the present petitioner had filed a Civil Suit No,8 of 1997 for permanent injunction with the prayer that the respondent Lal Bux be restrained from raising construction over the Plot No,26. The respondent/defendant had filed his written statement and after recording evidence, the suit was decreed. Nothing available on the record to show that the respondent No,1 ever challenged or assailed the aforesaid judgment and decree before any court of law. So in our view for all intent and purposes, the controversy has attained finality. Consequentially, the petitioner had filed execution application, which was allowed after hearing objections of the respondent and writ was also issued for removing the wall sonstructed on Plot No,26 and according to the learned counsel, the decree was fully satisfied.
8. In the impugned order, the only reason for dismissal of execution application is nothing but the orders passed by this court on 10-12-1997 in Civil Revision No,65 of 1995 and the order passed by the honourable Supreme Court on 6-7-1998 in C.P.L.A. No,27-K of 1998 and the learned appellate Court went on to hold in the impugned order that the High Court and the honourable Supreme Court in the aforesaid orders have declared the respondent as encroacher.
9. We have conscientiously examined both the judgments but unable to find out any adverse declaration by which the petitioner was allegedly declared encroacher. In fact, the honourable Supreme Court has safeguarded and protected the easement rights granted earlier in the favour of petitioner's ancestors in Suit No,50 of 1972. Had the respondent aggrieved by the judgment and decree which was validly passed by a competent Court of law on merits and after providing ample opportunity to the parties, he should have preferred an appeal assailing the judgment and decree which he failed to do so and the judgment and decree attained finality. The objections filed to the execution application were ought to be considered keeping in view section 47 of the C.P.C., which provides that all questions arising between the parties of the suit in which, the decree was passed relating to execution, discharge or satisfaction of the decree, shall be determined by the court executing the decree and not by a separate suit. There is no cavil that the executing court in this case allowed the execution application with proper application of judicial mind and passed the order within the parameter and premise of jurisdiction so vested in an executing court.
10. It is clear beyond any shadow of doubt that section 47 of C.P.C. Does not bar the remedy but only regulates forum for enforcement of rights relating to the execution, discharge or satisfaction of the decree. The executing Court is only empowered to exercise its jurisdiction on the matters concerned with the execution, discharge or satisfaction of an A existing decree between the same parties, the function of the executing Court is to execute the decree as it is Neither it can go behind it nor can, reopen matters which have been heard and decided in the proceedings in which, the decree has been passed.
11. At this juncture, we would like to refer to a judgment of honourable Supreme Court reported in 2007 SCM R 818 (Muhammad Tariq Khan v. Khuwaja Muhammad Javad Asami), in which the settled law was reiterated that the decree is executable in the light of the terms and conditions mentioned in the decree and the executing Court has to confine its deliberation within the purview of the decree and not beyond that. It is the duty and obligation of the Court to dispose of the objections filed by the objectors in the light of the terms and conditions of decree. In another judgment reported in 2003 SCM R 1202 (Allah Ditta v. Ahmed Ali Shah), the honourable Supreme Court has held that this is an established rule that the executing Court cannot extend its jurisdiction to go behind the decree and question of its correctness except in a case in which decree is silent that what property was subject-matter of the execution. The executing Court can look into the judgment in order to find out that property brought for the satisfaction of decree actually belonged to the judgment-debtors but cannot entertain an objection relating to the dispute of title and its determination which may change and alter the terms of decree.
12. The learned appellate court passed the impugned order in a manner and approach as if he was hearing an appeal. It is palpably manifesting from the impugned order that the appellate Court has decided the issues and the rights of the parties beyond the scope of the terms of the decree passed by the trial Court. The outcome and end result of the impugned order tantamount to set aside the judgment and decree for which an appropriate remedy was available to the respondent/J. D. To file an appeal which was his statutory right but this B vested right was not exercised or availed and instead of challenging the validity of judgment and decree, the respondent/J.D. Only filed revision application against the order of the executing court which does not seem to be rational or appropriate remedy.
13. The powers conferred upon the revisional Court under section 115 of the C.P.C. Are confined to the conditions and eventualities where it appears that the subordinate court has exercised jurisdiction not vested in it or has failed to exercise the jurisdiction so vested or has acted in exercise of its jurisdiction illegally or with material irregularity.
' If the court has jurisdiction it has jurisdiction to decide one way or the other, and erroneous conclusion of law and fact can be corrected in appeal, but revision will not be competent. Section 115, C.P.C. Applied only to cases involving illegal assumption, non-exercise or the irregular exercise of jurisdiction. It cannot be invoked against conclusion of law or fact which do not in any way affect the jurisdiction of court. Revision and appeal are two different fields. Appeal is the continuation of original suit and the appellate Court has got ample power to thrash out the entire evidence and scrutinize the available documents in the light of arguments advanced by the respective parties.
On the other hand, scope of revision is limited to some illegality, material irregularity or jurisdictional defect in the impugned judgment. A bare perusal of section 115, C.P.C., clearly shows that scope of revision is limited. Reference can be made to 2009 SCM R 589 (GuI Rehman v. Gul Nawaz Khan).
14. Normally, this court in its constitutional jurisdiction does not exercise its powers to interfere with revisional order but such rule is not absolute, but subject to exceptions. Impugned order, if based on gross misreading or non-reading of evidence and the reasons given are absolutely perverse, not supported by law or evidence or the material available on record, such order cannot be merely termed as erroneous on facts or law rather such order shall be an order without lawful authority.
Judicial forum in the dispensation of justice has no authority to decide the rights of the parties according to its whims, caprice or imagination. In performing the essential and primary obligation of doing justice, the courts of law are supposed and duty bound to read, consider and conceive the evidence of the case, available on the record accurately. Court has to apply the correct law and to justly administer the rights and the remedies of the citizens which duty is fundamental to and enshrined in the concept of the administration of justice.
15. The upshot of this discussion is that this constitution petition is admitted to regular hearing and allowed. Consequently, the impugned order passed by the IIIrd learned Additional District and Sessions Judge, Khairpur on 11-5-2006 is set aside. However, if the respondent feels aggrieved by the judgment and decree passed in Suit No,8 of 1997 and due to some tangible reasons or bona fide grounds, he was prevented or precluded to file appeal, the respondent may seek appropriate remedy in accordance with law. The petition is disposed of accordingly along with listed- application.