The above titled appeal has been preferred against the order passed by the learned Additional District Judge, Dadyal, on 29.01.2008.
2. The facts forming the background of the instant appeal are that the plaintiffs/respondents filed a suit for declaration along with possession regarding land 4 Kanals 19 Marlas bearing Khasra No, 1908 Khawat No, 252 situated in village Surakhi Tehsil Dadyal District Mirpur in the Court of Civil Judge Dadyal. After hearing the parties, the learned Civil Judge Dadyal issued a decree in favour of plaintiffs /respondents. It is alleged that against the said judgment and decree the appellants/defendants have filed no appeal, therefore, the judgment & decree has attained finality. It is further alleged that the decree holders/respondents filed an application for execution of decree. The learned Civil Judge after hearing the parties issued warrant of possession of suit land vide order dated 03.12.2007. The appellants filed an appeal before the Additional District Judge Dadyal against the execution order as well as warrant which was also dismissed, hence this second appeal.
3. Arguments were advanced by the learned counsel for the parties. Kh. Shoukat Hussain Ganai Advocate, the learned counsel for the appellants reiterating the grounds as taken in the pleadings argued that both the learned Courts below have failed to appreciate the evidence and also misconstrued the law on the point. The learned counsel argued vehemently that the decree in dispute has become ineffective and un-executable for the reason that decree execution pertains to right of Arakdari and the matter has been contested between the parties before the revenue Court and now is pending before this Court at Circuit Bench Mirpur, hence the decree is not executable and prayed for cancellation of impugned order of the learned trial Court. Lastly, the learned counsel craved for acceptance of the appeal.
4. Conversely, Syed Nazir Hussain Shah Kazmi, the learned counsel for the respondents maintained that the findings recorded by the learned trial Court have also been concurred by the 1st appellate Court and no miss-reading and non-reading of record, evidence or any misconstruction of law has been pointed out by the appellants. Finally, the learned counsel craved for dismissal of the appeal with costs and referred the following case law.
PLD 2003 Supreme Court AJK 14 2008 SCR 300
5. I have heard the learned counsel for the parties and gone through the record of the case.
6. Without discussing the detailed fads of the case, it is found . That the finality of the decree being executed is not disputed between the parties and the impugned order for execution of Court including impugned warrant dated 3.12.2007 has been kept intact by the 1st Appellate Court, hence, the impugned order/warrant is a result of concurrent findings. It is concluded that the pendency of a writ petition before this Court, pertains to correction of entries of some revenue record, which has nothing to do with this final decree. Moreover, bare reading of the memo. Of appeal, it is obvious that the decree and judgment of the trial Court dated 15.7.2005 has been challenged in the memo.
Of appeal whereas the decree and judgment has attained finality. As far as the stance of the learned counsel for the appellants that due to litigation of right of Arakdari which is pending before this Court, hence, decree cannot be executed, has been taken consideration and gone through record made available with the file. It is noted with sorrow that the instant appeal is pending for the last 7 years, whereby the execution of final decree is still awaiting execution. It is settled principle of law that once the decree has attained finality. The same has to be executed in its true spirit.
Despite detail scrutiny of all the record, I am unable to find any reason to differ with both the Courts below. The above view is also fortified by PLD 2003 SC AJK 14, 2008 SCR 300, relevant observations of the reports are reproduced, hereunder: 2003 SCR 14 "Section 47, CPC, Execution of decree.--A decree passed by the Civil Court is either to be challenged by the opposite party or in case of its finality, is to be acted upon according to the terms and conditions laid down in it.
2008 SCR 300
(e) Practice and Procedure. Unfortunately this is common phenomenon that implementation and execution of a decree and order the Court is defeated by procrastination and filing of applications and raising technical objections. When specific provision of the Code provides for doing a thing in a prescribed manner, it cannot be frustrated through filing applications or suits on technical grounds and objections. Once a decree has been passed by a Court having jurisdiction and the same having attained finality it has to be executed in letters and spirit. In a case reported as Jameela Pir Bukhsh & others Vs Appellate Authority & others (2003 SCM R 1524) the proposition before the Supreme Court of Pakistan was in respect of execution of the order of the Court for possession to the petitioner. While discussing the principle of administration of justice it was held in Para 14 as under:
14. It is often said that delay in justice amounts to denial of justice. There is no fault. With the judicial The Right Hon. Sir James Colvile... There proceedings certainly illustrate that was said by. Mr. Doyne and what system. Litigation has increased manifold but the manpower to tackle the same does not commensurate with the same. Perplexity of technicalities is perhaps one of the major reasons for this delay. Even petty matters linger on for decades to reach their logical conclusions. Such an approach creates great hurdle in the way of the oppressed to get justice within a reasonable time which naturally results in generating frustrations and despondency against the system. The Courts must not shatter the trust reposed by general public in them by involving themselves in procedural technicalities. Their prime duty to administer substantial justice which should not only be done but also seen to have been done at the earliest. At this juncture it would be appropriate to reproduce the observations of the Judicial Committee of Privy Council made as far Manager of the Raj Durbhunga, under the Court of Wards V. Maharajah Coomar Ramaput Singh (14 MIA 605 = 17 WR 459 =1.0 BLRPC 2942 Suth. PCJ 575 = 3 Sar. PCJ 117 respecting the plight of litigants in this part of the world which are as under:-- The Right Hon. Sir James Colvile There proceedings certainly illustrate that was said by Mr. Doyne and what has been often stated before that the difficulties of a litigant in India begin when he has obtained a decree. When whoever, the actual question which is at issue between the appellant and the respondent on this appeal is eliminated from the rest of the record, it does not appear to their Lordships to present any very great difficulty."
7. In the above scenario the Court notes it with great pain that the situation has not been improved even after a span of above seven decades of our liberation/independence. It has rather got worsened and the litigates suffered agonies of litigation without final determination for generation.
8. The view of above, I cannot entertain any second thought except of dismiss the instant second appeal with costs. Order announced.