' AMIN-UD-DIN KHAN, J.---Learned counsel for respondents Nos.2 and 3 i.e. Counsel representing judgment debtors has sent written request for adjournment on the ground that he is out of city for some personal emergency. Learned counsel for respondent No.1 has prayed for hearing the arguments and stated that even a warning was issued to respondents Nos.2 and 3 to appear in person but neither they are present nor any one is present to represent them. Learned counsel further stated that these respondents are in league with the appellant. At this juncture, learned counsel for the appellant states that he is ready to argue the case, as respondent No.1 is contesting. Respondent. As the appellant and respondent No.1 are contesting parties and request for adjournment sent by learned counsel for respondents Nos.2 and 3 is not appreciable, therefore I feel better to hear the contesting parties and decide the appeal.
2. Through this appeal, appellant has challenged the order dated 12-4-2011 passed by learned Addl: District Judge, Lahore, whereby in execution of a money decree filed by respondent No.1 the objection petition filed by the appellant has been dismissed.
3. Learned counsel for the appellant argues that the appellant purchased the suit plot through registered sale deed registered on 3-1-2006 from Mst. Razia Begum and he has constructed a house and is residing therein; that no one informed the appellant about any litigation with regard to the suit house nor any litigation was in the knowledge of appellant; that no one has resisted when he has raised construction over the suit plot; that as per knowledge of appellant neither the property was mortgaged nor attached in any proceedings of the suit; that when the proceedings of attachment of property were initiated by the learned Executing Court, he came to know about the pendency of execution petition, therefore he has filed objection petition before the trial court.
Further states that learned Executing Court without framing any issue and inviting the parties to produce evidence has summarily dismissed the application; that there were many questions of law as well as fact involved in the objection petition and the impugned order passed by learned Executing Court without framing the issue and receiving evidence, is nullity in the eye of law.
Learned counsel prays for acceptance of this appeal and remand of the case to learned Executing Court.
4. On the other hand, learned counsel for respondent No.1/decree holder states that even he has filed the complete documents with C.M. No.2-2012 and interim order sheet; that previously respondent No. 1/decree holder filed a suit for permanent injunction against Mst.Razia Begum/respondent No.3 in Civil Court, whereby the stay order was granted and during the stay order property was sold to the appellant; that afterwards the said suit was dismissed for non- prosecution; that the impugned order passed by learned Executing Court whereby the objection petition has been dismissed, is in accordance with law.
5. I have heard the learned counsel for the parties at length and gone through the record appended by learned counsel for the parties with this appeal as well as the impugned order.
6. Though learned counsel for the parties have tried to go into the minute details of facts as well as law applicable therein. I have noticed that both the parties have produced voluminous documents with this appeal to substantiate their claim. So far as the objection of respondent No.1 and findings of learned Executing Court that the objection petition has been filed under wrong provision of law are concerned, I am clear in my mind that when the application has been filed before the proper forum, mentioning of wrong provision of law does not make any difference, as it is settled that citing the wrong provision of law at the caption of suit/petition does not bar the court to exercise jurisdiction vested in it by law under the right provision of law.
7. So far as the facts of case as well as law applicable thereto are concerned, it is also settled that law is applied on the basis of burden of facts admitted between the parties or proved by the parties. In this case, the facts of case are not simple, therefore the same require evidence and then the law can be applied upon those facts. Therefore, I refrain myself from discussing in detail the facts and documents annexed with this appeal, so that no one should be prejudiced. As in my view the proper course for determination of lis is to remand the case to the learned Executing Court to decide the same after framing of issues and recording the evidence of parties. In this view of the matter, I accept this appeal and set aside the impugned order dated 12-4-2011 and remand the case to learned Executing Court to frame issues and after recording the evidence of parties decide the same in accordance with law.