1. This appeal is directed against the order dated 29-1-2009 passed by the learned executing Court, whereby the objection petition filed by the appellant was rejected on the ground that the executing Court had no power to review its earlier order, hence this appeal.
2. 2.The precise submission of the learned counsel for the appellant is that the learned executing Court has failed to decide the objection petition of the petitioner, which was not for the review of the earlier order passed by the learned executing Court on the objection petition filed by the incompetent person on behalf of the appellant. Further submits that the earlier order dated 12-11- 2008, passed by the learned executing Court on the objection petition filed by an incompetent person on behalf of the Government of Punjab, was dismissed and that order was challenged in Writ Petition No.17506 of 2008 and the Division Bench of this Court passed the following order: "This petition has been filed by the Sub-Registrar (Urban), Faisalabad, against an order of the Banking Court. Without commenting on the legality or otherwise of the order of the Banking Court, the Sub-Registrar, who is an employee of the State and in his own name, cannot take the initiative by filing this constitutional petition before this Court against another functionary of the State. The present petition has been filed without taking into consideration section 79 of the C.P.C. as well as Article 174 of the Constitution. Hence, this petition is not maintainable and is dismissed.
3. A copy of this petition be dispatched to the Secretary S&GAD Department for taking appropriate action against the petitioner in accordance with law. A copy of this petition be also sent to the Board of Revenue, Punjab, who shall look into the matter and if necessary file an objection petition before the Banking Court. The learned Additional Advocate-General Punjab shall ensure the compliance of this order."
4. The learned counsel for the appellant further submits that as the Bench of this Court had allowed the competent forum to file the objection petition, therefore, it was the legal obligation of the learned executing Court to decide the same in accordance with law instead of dismissing the same on the technical grounds that the review petition was not maintainable against the earlier order of the learned executing Court. The learned counsel for the appellant further submits that the appellant did not file the review petition as it was an independent objection petition which had to be decided on the basis of merits, therefore, the order impugned passed by the learned executing Court is unsustainable at law.
5. 3.On the other hand, the learned counsel for the respondents argued the case on the line of reasoning that the directions/observations given by the Bench of this Court while deciding the Writ Petition No.17506 of 2008, did not provide the remedy to the appellant for filing another objection petition as his earlier objection petition had been dismissed on merits. Further submits that since the order passed by the Bench of this Court was void as it is against the spirit of law, the learned executing Court had rightly held that the review petition after the dismissal of the original objection petition was not maintainable. The learned counsel for the respondent while relying on the judgments of the Hon'ble Supreme Court Inspector General of Police, Punjab Lahore and another v.
6. Muhammad Iqbal (2007 SCM R 1864) and Directorate General Civil Defence, Government of Pakistan, Interior Division, Islamabad v. Mian Abdul Salam (2007 SCM R 1779) further submits that the subsequent objection petition submitted by the Government of the Punjab through DOR was not maintainable, therefore, this, appeal may be dismissed on this ground alone.
7. 4.We have considered the arguments of the learned counsel for the parties and gone through the record of the case.
8. 5.The only moot point worth consideration is that the objection petition filed by the appellant after obtaining the order dated 3-12-2008 in Writ Petition No.17506 of 2008 from the Bench of this Court was review of the earlier order or it was an independent objection petition. The learned executing Court has erred in law to consider the objection petition of the appellant as a review petition, as the objection petition was filed by the appellant, according to the observation undertaken by the Bench of this Court vide order dated 3-12-2008. It was incumbent on the learned executing Court to decide the same after considering all the objections from the respondent in accordance with law.
9. The objection raised here before this Court by the counsel for the respondent relates to the merits of the case, which has not been determined by the learned executing Court, therefore, we are disinclined to answer the objections, as we are of the view that the same ought to have been first determined by the executing Court on the objection petition of the appellant. Therefore, we are of the considered view that the learned executing Court has not decided the objection petition of the appellant. The ratio decidendi of the judgments referred by the learned counsel for the respondent also debar the individuals to file the appeal or defend the government except the competent authorities in view of section 79 read with Order XXVII, Rule 3, C.P.C. as well as Article 174 of the Constitution and this aspect has also not been considered by the learned executing Court, which dismissed the earlier objection petition filed by the incompetent person as to whether the said application was maintainable and what should have been the consequences if any order had been passed on the application of incompetent person and it should also have to be determined by the learned executing court whether the government should suffer for the filing of the earlier objection petition by the incompetent person, which stated to be filed without obtaining the permission from the competent authority. The questions and objections raised required the deeper appreciation which has to be undertaken by the learned executing Court at its first instance.
10. Therefore, we are inclined to accept this appeal. Resultantly, the order impugned passed by the learned executing Court is hereby set aside. In consequence, objection petition filed by the appellant shall be deemed to be pending with the learned executing Court which shall decide the same after considering the objections of the respondent strictly in accordance with law.
11. 6.With this direction, this appeal stands accepted.