' MIRZA VIQAS RAUF, J.---The petitioners have assailed the judgment and decree dated 8-10-2011, passed by the learned Additional District Judge Gujranwala, whereby, the appeal filed by the petitioners against the order dated 28-2-2011, passed by the learned Civil Judge Gujranwala, was dismissed.
2. Precisely the facts necessary for adjudication of instant petition are that the petitioners filed an application under Section 38 read with Section 47 of The Code of Civil Procedure (V of 1908) before the learned Civil Judge Gujranwala against the respondents. In the application the petitioners asserted that though the judgment and decree dated 3-11-1985 passed by the learned Additional District Judge had become inexecutable due to afflux of time but the Revenue Authorities illegally implemented the same and sanctioned Mutation No.27508 dated 23-7-2002. The application was resisted by the respondents and resultantly the same was dismissed by the learned Civil Judge vide order dated 28-2-2011.The petitioners, feeling aggrieved from the said order filed an appeal before the learned Additional District Judge Gujranwala, which was also dismissed vide judgment and decree dated 8-10-2011.
3. Learned counsel for the petitioners submitted that the basic judgment and decree dated 3-11- 1985 passed by the learned Additional District Judge decreeing the suit for pre-emption filed by the respondents, became inexecutable with the afflux of time. He added, that the respondents, without filing any formal execution petition got it implemented from the revenue hierarchy which is illegal and unlawful. Learned counsel added that the procedure adopted by the respondents for implementation of judgment and decree defeated the process of law. Learned counsel argued that both the Courts below have totally misconceived the law and the impugned judgments are not tenable. In support of his contentions he placed reliance on the case of "Mirza Akbar Ali v.
National Bank of Pakistan" (1986 SCM R 321) and "Riaz Hussain and others v. Muhammad Akbar and others" (2003 SCM R 181).
4. Conversely learned counsel for the respondents submitted that the judgment and decree in favour of the respondents was executable and the same remained operative even with the afflux of time. Learned counsel contended that the judgment of both the courts below are in accord with the settled principle of law and no illegality has been committed by either of the courts below. In support of his contentions the learned counsel placed reliance on the case of "Ali Ahmad and another v. Muhammad Fazal and another" (1972 SCM R 322), "Shahra and others v Member, Board of Revenue, Punjab and others" (2004 SCM R 117), and "Mirza Akbar Ali v. National Bank of Pakistan"
(1986 SCM R 321) and "Riaz Hussain and others v. Muhammad Akbar and others" (2003 SCM R 181).
5. I have heard the learned counsel for the parties and also perused the record with their assistance.
6. The matter in issue primarily revolves around two questions, firstly as to whether with the afflux of time and after the lapse of limitation period the decree in the suit for pre-emption cannot be implemented in the revenue record and secondly whether the application under Section 38 read with Section 47 of The Code of Civil Procedure (V of 1908) is not maintainable before the learned Civil. Judge in the circumstances?
7. In the first instance I would like to dilate upon the question No.
1. Order XX, Rule 14 of The Code of Civil Procedure (V of 1908), deals with the decree for preemption suit and the same reads as under:--
(1) Where the Court decrees a claim to pre-emption in respect of a particular sale of property and the purchase-money has not been paid into Court, the decree shall
(a) Specify a day on or before which the purchase-money shall be so paid, and
(b) direct that on payment into Court of such purchase-money together with the costs (if any) decreed against the plaintiff, on or before the day referred to in clause (a), the defendant shall deliver possession of the property to the plaintiff, whose title thereto shall be deemed to have accrued from the date of such payment, but that, if the purchase-money and the costs (if any) are not so paid, the suit shall be dismissed with costs.
(2) Where the Court has adjudicated upon rival claims to pre-emption, the decree shall direct,-
(a) and in so far as the claims decreed are equal in degree, that the claim of each pre-emptor complying with the provisions of sub-rule (1) shall take effect in respect of a proportionate share of the property including any proportionate share in respect of which the claim of any pre-emptor failing to comply with the said provisions would, but for such default, have taken effect; and
(b) If and in so far as the claims decreed are different in degree, that the claim of the inferior preemptor shall not take effect unless and until the superior pre-emptor has failed to comply with the said provisions.
' It is manifestly clear from the above that the decree holder on deposit of decreetal amount becomes the absolute owner of the suit property and such ownership would remain operative and intact even if such decree was not put to execution. The Revenue Officer is always under statutory obligation to implement such decree in the Revenue Record, even if its execution petition has become time barred. Reference in this respect can be made to "Sher Muhammad through Legal Heirs v. Member (Judicial-1) Board of Revenue and 4 others (2010 M LD 187), "Munshi Muhammad through L.Rs. And others v. District Officer (Revenue), Gujranwala and 2 others" (2009 CLC 1285) and "Shahra and others v. Member, Board of Revenue, Punjab and others" (2004 SCM R 117).
8. Thus in view of well-settled principle of law noted above no cavil left that on deposit of pre- emption money in terms of Order XX Rule 14 of The Code of Civil Procedure (V of 1908), the preemptor/decree-holder becomes absolute owner of the subject land and sanction of mutation could be made on the basis of said decree without resorting to Execution proceedings. The Executing Court in such matters would only be involved in case the judgment debtor fails to deliver the possession of the land in pursuance to such decree and in such case the Executing Court will be required to deliver the same by issuance of warrant of possession.
9. Now while adverting to the second limb of the in matter in issue, it is observed that initially the suit for pre-emption filed by the respondent No.3 was dismissed vide judgment and decree dated 16-7-1985. However, in appeal the learned Additional District Judge, while setting aside the said judgment and decree of the learned Civil Judge allowed the appeal and decreed the suit. The said judgment and decree was then assailed in Civil Revision No.12-D of 1986 before this Court, which was initially dismissed for non-prosecution on 23rd of April 1986. However, on the application of the petitioners, the same was restored vide order dated 3rd of November, 2003. During this interregnum period respondent No.3 moved an application for implementation of judgment and decree dated 3rd of November 1985, to the respondents Nos.1 and 2, which resulted into sanction of mutation No.27508 dated 23rd of July, 2002. The petitioner in the first instance filed Writ Petition No.84084/2008 challenging the sanctioning of mutation, which was dismissed vide order dated 12th of May, 2009. The said order was assailed in C.P.No.1101-L/2009, but the same was withdrawn.
Later on a review petition was filed against the said order before the Hon'ble Supreme Court of Pakistan which was decided vide order dated 11th July, of 2011 on the following terms:-- "The petitioners seek review of the order of this Court dated 16-5-2011. Learned counsel for the petitioners states that he had withdrawn the petition (Civil Petition No.1101-L of 2009) reserving his clients' right to challenge the execution proceedings. The petitioners' grievance is that the respondent got the land mutated in his favour without the intervention of the executing Court, therefore, he had no option but to file an objection petition under section 47, C.P.C. With the learned executing Court which was dismissed and against the said order of dismissal, the petitioners have filed an appeal which is pending adjudication before the learned Additional District Judge, Gujranwala. Learned counsel for the petitioners does not press this petition provided a direction is made to the learned Additional District Judge, Gujranwala to consider the law, laid down by this Court in the case reported as "Riaz Hussain and others. v. Muhammad Akbar and others (2003 SCM R 181)" while deciding the appeal. Order accordingly.
2. This review petition is dismissed as having not been pressed with the above observations."
' It is evident from the above, that while passing the above said order the Hon'ble Apex Court has directed the learned Additional District Judge Gujranwala to keep into consideration the law laid down in the case of "Riaz Hussain and others v. Muhammad Akbar and others"(2003 SCM R 181), while deciding the appeal. Strangely enough, the learned Additional District Judge did not take into consideration the above noted observations, while deciding the appeal. For the purpose of convenience, the relevant extract from the above referred judgment is reproduced below:--
6. The only question for decision in this appeal is whether an objection petition filed by a judgment- debtor under section 47, C.P.C. Is maintainable when there exists no application for execution of the decree. The question was answered in the affirmative in the impugned judgment mainly on the strength of the judgment of the Supreme Court of India reported as M.P. Shreevastava v. Veena (AIR 1967 SC 1193) wherein an identical controversy was resolved in favour of the judgment-debtor with the following observations:-- "The principle of section 47, C.P.C. Is that all questions relating to execution, discharge or satisfaction of a decree and arising between the parties to the suit in which the decree is passed, shall be determined in the execution proceeding, and not by a separate suit; it follows as a corollary that a question relating to execution, discharge or satisfaction of a decree may be raised by the decree holder or by the judgment-debtor in the execution department and that pendency of an application for execution by the decree-holder is not a condition of its exercise. "
7. The above view is unexceptionable and while agreeing with the rationale and reasoning thereof we would like to add that the scope of section 47, C.P.C. Is very wide inasmuch as the objection petition filed there under by a judgment-debtor is akin to a suit and for that very reason it contains an in-built provision empowering the Court to treat the objection petition as a suit subject to certain conditions. The view tends to advance the object of the legislature and provide an opportunity to the judgment-debtor to make an objection petition even if the decree-holder withholds the execution petition and gets the decree satisfied through some other mode. A contrary view would certainly limit the scope of section 47, C.P.C. And thus militate against the object and intention of the Legislature. It will also take the judgment-debtor to a point where he is left with no remedy and forum of the redressal of his grievance as has happened in the present case. The respondent has been left high and dry due to non-filing of an execution petition by the decree-holder. The right to file an objection petition conferred on the judgment-debtor by the Code of Civil Procedure is a vested right which cannot be denied by blowing the expression "desires", used in Order XXI, rule 10, C.P.C. Out of proportion or raising a hypertechnical ground that non-filing of an execution petition is a bar to the maintainability of an objection petition. Lastly, the view is in line with the well-known principle of interpretation of statutes that a statute should be interpreted in a manner which suppresses the mischief and advance the remedy. It is also supported by the observations made in Manager, Jammu and Kashmir State Property v. Khuda Yar (PLD 1975 SC 678) that mere technicalities unless offering any insurmountable hurdle should not be allowed to defeat the ends of justice and the logic of words should yield to the logic of realities.
8. Adverting to the leave granting order we feel no hesitation in holding that pendency of an application for execution of the decree is not condition precedent for filing of an objection petition under section 47, C.P.C. The objection petition in question is, therefore, maintainable.
9. For the foregoing reasons, the appeal is dismissed. Parties to bear their own costs.
In view of above noted principles, no cavil left that the pendency of an application for execution of the decree is not a sine qua non for filing the objection petition under Section 47 of The Code of Civil Procedure (V of 1908). I feel no hesitation to hold that both the Courts below have acted mechanically, while dismissing the application filed by the petitioner. This is a clear case of illegal exercise of jurisdiction, which calls for interference by this Court in terms of Section 115 of The Code of Civil Procedure (V of 1908).
10. For what has been discussed above, the instant petition is allowed and the judgment and decree dated 8th of October, 2011 passed by the learned Additional District Judge is set aside and the case is remanded back to the learned District Judge Gujranwala, where the appeal shall be deemed to be pending. The learned District Judge shall either decide the same by his own or entrust it to any other competent Court of jurisdiction. The parties are directed to appear before the learned District Judge Gujranwala on 23-5-2015. Where after the appeal shall be decided afresh, after hearing both the sides in the light of above noted observations preferably within one month from the date of receipt of this order. Office is directed to transmit the copy of this order to the learned District Judge, Gujranwala for compliance.