' ABDUS SATTAR ASGHAR, J.---This First Appeal is directed against the Order dated 29-6-2011 passed by learned Senior Civil Judge, Sargodha/Executing Court whereby objection petition lodged by the appellant in the petition for execution of the judgment and decree dated 3-6-2010 was dismissed.
2. Brief facts leading to this appeal are that Ejaz Ahmad respondent No,1 lodged a suit for specific performance on 23-2-2010 on the basis of agreement to sell dated 6-4-2004 against respondents Nos.2 and 3 which was resisted by the respondents admitting the agreement to sell dated 6-4- 2010, but contended that out of the agreed consideration amount of Rs,58,00,000 only an amount of Rs,33,00,000 was paid on the date of agreement to sell and balance payment of Rs,25,00,000 was not made up till 5-4-2007; that the agreement to sell dated 6-4-2004 stood automatically cancelled and the amount of Rs,33,00,000/- was forfeited. The suit was decreed by the learned Civil Judge vide judgment and decree dated 3-6-2010. The respondent No,1 filed execution petition to get the decree dated 3-6-2010 implemented. With the process of the court a sale deed was also got registered in his favour and the respondent obtained possession of the suit-land through warrants of possession dated 7-2-2011.
3. The appellant being aggrieved lodged objection petition on 9-2-2011 alleging that he has already filed a suit for specific performance, wherein his application for ad interim irjunction was dismissed by the learned trial Court vide order dated 13-1-2006; that against the said order the appellant lodged F.A.O. No,13 of 2006. This Court vide order dated 24-1-2006 admitted the FAO for regular hearing, issued notice to the respondents and also passed an order on C.M. For interim relief as under:-- "Subject to deposit of Rs,25,00,000 (Rupees twenty-five lac) by the petitioner within one week with the trial Court, alienation of the property in dispute by respondents is restrained. Status quo qua possession shall also be maintained. Copy Dasti."
' In the objection petition the appellant further alleged that respondents Nos.2 and 3 with collusion of respondent. No,1 during the pendency of the appellant's suit and in presence of injunctive order dated 24-1-2006 instituted a suit for specific performance on 23-2-2010 on the basis of forged agreement to sell dated 6-4-2004 and obtained impugned decree dated 3-6-2010; that the respondents secretly got prepared sale deed and issued warrant for possession and during night of 7-2-2011 forcibly occupied the disputed property; that the impugned decree dated 3-6-2010 was collusive and obtained without notice to the appellant. The objection petition was resisted by the respondent/decree-holder contending that the appellant was neither in possession of the suit property nor he has any title therein; that the alleged agreement to sell dated 23-9-2004 did not create any title in favour of the appellant in the suit property; that respondents Nos.2 and 3 had executed agreement to sell dated 6-4-2004 in his favour for Rs,58,00,000 and received Rs,33,00,000 as earnest money and under the decree he deposited Rs,25,00,000 which were drawn by respondents Nos.2 and 3 on 6-7-2010; that during execution proceedings the sale deed was got attested, mutation was recorded and possession of the suit land was obtained through process of the Court. Objection petition was dismissed by the learned trial Court through the impugned order dated 29-6-2011 in the following manner:-- "6. The decree dated 3-6-2010 obtained by Ejaz Ahmad has nowhere been challenged by the judgment-debtors i,e, Muhammad Sadiq or Gul Nawaz. Rather this decree has income final and under the decree sale deed and mutation stand attested and admittedly possession is also with the decree-holder. By such, the decree has been implemented and the execution proceedings stand materialized. Now nothing is to be performed under the decree dated 3-6-2010.
7. Now the question is maintainability of objection petition. Admittedly, the decree holder, Ejaz is not a party to the sale agreement dated 23-9-2004, executed by Muhammad Sadiq and Gul Nawaz through attorney, Mazhar Ali in favour of the objector, Rai Muhammad Nawaz. The present decree- holder is also not a party to the suit of specific performance of the said agreement instituted by Muhammad Riaz. Although, Muhammad Sadiq and Gul Nawaz were a party to the suit of objector and there was an injunctive order against them. But it is nowhere the stance of Muhammad Riaz that the defendants ever disclosed the pendency of his suit before the court which decreed the suit of Ijaz Ahmad. If they concealed the facts of pendency of that suit, for that fault, the present decree-holder cannot be penalized. The decree-holder is not to suffer for the follies and wrongs committed by the judgment-debtors. At the most, the objector can proceed against them in his own suit for alleged violation of injunctive order. Now on the basis of decree dated 3-6-2010, the present decree holder has also become a necessary party to the suit of objector and the objector may bring under attack the decree dated 3-6-2010 while impleading Ijaz Ahmad as party to his suit which is still pending adjudication.
8. For what has been discussed above, the execution petition mentioned at serial No,1 as having been materialized, is filed and objection petition mentioned at serial No,2 is rejected. File be consigned to the Record Room after its due completion."
4. It is argued by learned counsel for the appellant that the impugned order is passed by the learned trial Court on wrong premises of law and facts; that the learned trial Court miserably failed to appreciate that the decree was obtained during pendency of the suit of the appellant and it is hit by the doctrine of lis pendens and that the appellant has a right to protect his possession under section 41 of the Transfer of Property Act, 1882; that the objection petition of the appellant has been rejected by the learned trial Court through the impugned order on flimsy grounds on the basis of surmises and conjectures without framing necessary issues and having recourse to evidence therefore the impugned order is liable to set aside.
5. On the other land, it is resisted by the learned counsel for the respondents on the grounds that respondent No,1 was a necessary party in the suit for specific performance lodged by appellant; that agreement to sell dated 6-4-2004 executed by respondents Nos.3 and 4 in favour of respondent No,1 Ejaz Ahmad was prior in date as against agreement to sell dated 23-9-2004 alleged by the appellant; that the appellant never challenged the decree on the basis of fraud or misrepresentation under section 12(2), C.P.C.; that on the basis of the decree in his favour respondent No,1 has also got possession of the suit-land through process of the court; that the objection petition of ,the appellant was rightly dismissed by the learned trial Court through the impugned order dated 29-6-2011 which does not suffer from any jurisdictional error or illegality therefore the appellant has no case to invoke the jurisdiction of this Court under Orders XLIII and XLI of the Code of Civil Procedure, 1908.
6. Arguments heard. Record perused.
7. It is evident on the record that the respondents Nos.2 and 3 while filing written statement in the suit for specific performance lodged by the appellant had not disclosed any agreement to sell between the respondents. Bare reading of the contents of the objection petition transpires that the appellant categorically alleged that he was in possession of the suit-land as part performance of agreement to sell dated 23-9-2004 and has alleged his dispossession through process of the court without notice or granting an opportunity of hearing on the basis of a collusive decree. It is therefore obvious that the parties were at variance on the question of fact. In the attending circumstances it was incumbent upon the learned Executing Court to frame an issue to have recourse to evidence to resolve the factual controversy between the parties. Needless to say that an objection petition relating to execution of a decree could be decided only after framing of issues and recording of evidence. It is duty of the court to ensure safe administration of justice keeping in view the substantial, right, of the parties. At this juncture, it may be expedient to reproduce section 47 of the Code of Civil Procedure, 1908, which reads as below:- "47. Question to be determined by the Court executing decree.---(1) 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 abjection as to limitation or jurisdiction, treat a proceeding under this section as a suit or a suit as a proceeding and may, if necessary, order payment of any additional court-fees.
(3) Where a question arises as to whether any person is or is not the representative of a party, such question shall for the purposes of this section, be determined by the Court.
' Explanation-- For the purposes of this section, a plaintiff whose suit has been dismissed and a defendant against whom a' suit has been dismissed, are parties to the suit."
Above provision requires that pleas of the parties are to be ascertained and adjudicated upon by framing of issues and recording of evidence to do substantial justice. Objection petition is akin to the suit and the court executing the decree was saddled with the responsibility of framing the issues and recording evidence to resolve the question of possession between the parties. Certainly separate suit in this regard is specifically barred under Order XXI, Rules 100 and 103 of the Code of Civil Procedure, 1908 and the question pertaining to the possession is to be decided by the Executing Court. Therefore objection petition lodged by the appellant raising the plea of possession was very much competent. Learned Executing Court was highly misconceived while holding that the objection petition was not maintainable for the reason that he was not a party to the suit. It is evident on the record that Ejaz Ahmad respondent filed the suit for specific performance and obtained the decree as well as possession during the pendency of the suit of the appellant without notice. Appellant's plea is that he was in possession of the suit land in part performance of agreement to sell dated 23-9-2004 therefore has right to protect the possession in terms of section 41 of the Transfer of Property Act, 1882, could not be discarded summarily. Needless to say that Doctrine of lis pendens is alive to protect the appellant's rights. With the dismissal of the objection petition an order of final nature has been passed qua the appellant without providing a fair opportunity of hearing violative to the fundamental right of fair trial and due process protected under. Article 10-A of the Constitution of Islamic Republic of Pakistan, 1973. Such a disposition of the matter leaving she appellant with no remedy and forum cannot sustain in the eye of law, therefore liable to set aside. D Reliance is placed upon Riaz Hussain and others v. Muhammad Akbar and others (2003 SCM R 181).
9. . For the above reasons, this appeal is allowed and the impugned order dated 29-6-2011 passed by the learned Executing Court is set aside. The objection petition shall be deemed pending before the learned Executing Court for decision afresh in accordance with law after framing necessary issues and recording evidence of the parties.