MUHAMMAD NOOR MESKANZAI, CJ.--- This petition calls in question the propriety and legality of order dated 30.04.2016 passed by Civil Judge-IV, Quetta and order dated 19.07.2017 passed by Additional District Judge-III, Quetta respectively whereby the execution application and appeal filed by the petitioners were dismissed.
2. Learned counsel for the petitioners contended that the petitioners filed a civil suit for declaration, permanent injunction and cancellation of mutation entries before the District Judge, Quetta which was later on transferred to the file of Civil Judge-IV, Quetta. The suit was decreed on 23.07.2010. The petitioners on their own tried to approach the respondents time and again for implementation of the decree but on one pretext or the other they deferred the matter and subsequently to implement the decree. Learned counsel contended that the claim of petitioners was admitted by the respondents; therefore, the executing Court could not have ignored this position. The decree passed in favour of petitioners was liable to be executed as even before the executing Court the respondents have stated that if cost of the property at present market rate is paid, the judgment- debtors are ready to mutate the property in the name of petitioners. Therefore, the executing Court was required to have asked the petitioners for depositing the price of the property according to the demand of judgment-debtor. He maintained that the Appellate Court also erred in law by dismissing the appeal because after admission of the rights of petitioners the dismissal of execution application is beyond comprehension.
3. I have considered the arguments so put forth. The perusal of execution application reveals that it has been filed after lapse of more than five year's and, therefore, prima facie appears to be barred by time. I am conscious of the legal proposition that a decree passed by a Court requires to be satisfied and till its satisfaction a number of execution applications could be filed provided the first application is filed within the span of three years after the passage of decree or final order sought to be executed. In case of filing of first application within the stipulated period as contemplated by Article 181 of Limitation Act and thereafter, successive applications can be filed by a decree-holder within the period of six years in order to get the decree satisfied and executed. Order XXI, Rule II sub-rule (2) provided for filing of application either oral or written. According to sub-rule (2) of Order XXI, Rule 11 clause (f) CPC an applicant is required to furnish detail of previous application (if any) with date and result. However, the application filed by the petitioners reveals that no previous application was filed. For the sake of convenience relevant column of application drafted in Urdu is hereby reproduced:-- {{URDU TEXT}} According to applicant, it is the first application filed by the petitioners for execution of decree and if it is so the application is hopelessly barred by time, as admittedly it has been filed after the lapse of 05 year 06 months and 25 days. However, the perusal of record reveals that the petitioners had filed an application on 02.09.2010 which was finally disposed of by the executing Court vide order dated 30.03.2011. The executing Court found the decree inexecutable and dismissed the application on such ground by passing a speaking and well-reasoned order, if the application is treated as a second application conversely and deemed to have been filed within time as contemplated by Section 48 of CPC then it is hit by the principle of res judicata as the previous application was dismissed on merits by declaring the decree inexecutable. In fact Execution Application No, 27 of 2010 was filed by the petitioners on 2nd September, 2010. The executing Court heard the arguments, considered the contentions, perused the report of patwari and held that the decree is inexecutable. So the Execution Application No, 27/2010 was dismissed with following observations:-- "As according to report the defendants against whom decree has been passed they were died long before and after that the property in quest was transferred against their legal heirs ands sequently they sold out the same to different persons though (sic) different mutations which are annexed with the report. Apart of it the property in question is not situated in Sultan Karez, but the same is situated in Mahal. Chashma Thirkah, while the decree of this Court has been passed against the property which is situated in Karez Sultan. Since the Decree has been passed against the persons who died long before, their legal heirs of were not associated in the suit, and after that the legal heirs of deceased who further sold out the property to other persons they were also not associated in the case, therefore the decree of the Court is not executable in its present form, therefore, instant application which is filed for execution of judgment/decree dated 23.07.2010 is not maintainable which is dismissed accordingly."
It appears that the petitioners remained satisfied with the order dated 30.3.2011 which has attained finality and therefore, any subsequent application shall be barred by the principle of res judicata The law stands settled on the subject that principle of res judicata applies on the execution application also. By holding the view I am fortified with the dictum laid down in the following citations:--- (a)1990 CLC Peshawar 1208 titled as 'Dauran Khan and another v. Mst. Shamim Akhtar'. "I must, therefore, hold that these two questions, namely, of tenancy and of co-sharership which are now being re-agitated by the petitioners in these execution proceedings are barred as res judicata. This bar would operate not only qua the subsequent suits but also qua any other legal proceedings including the execution proceedings." (c) 2010 M LD Lahore 187 titled as "Sher Muhammad through Legal Heirs v. Member (Judicial-I), Board of Revenue and 4 others'.
"6.By means of Ordinance No, XX of 1972, limit of 12 years prescribed for presentation of fresh application has been reduced to six years. There is no fetter on the decree-holder to present another number of application to satisfy the decree but the principle of res judicata, has to be observed." The impugned order is silent about previous application and its dismissal, the reason is quite clear and known because the petitioners did not disclose t factum of filing of previous application and its result despite Me fact that it was a legal requirement as contemplated by Order XXI, Rule 11, sub- rule 2 clause-(f), CPC. It is painfully observed that the suit the second execution applications and instant petition were filed by the same learned Counsel but the factual position was never disclosed. The learned Advocates being officer of the Court are under legal obligation to peace the facts before the Court in order to enable the Court to arrive at a just conclusion, but regrettably there is failure on the part of learned counsel so far the discharge of this legal obligation is concerned. I feel no difficulty in holding that it was a collusive suit and a collusive decree was passed and this position was very rightly perceived/judged by my learned brother Hon'ble Mr. Justice Naeem Akram Afghan while hearing preliminary arguments at Katcha Peshi stage by observing as under:-- "After hearing learned counsel for the petitions, (sic) I have perused the annexed record which reveals that it was a collusive suit filed by the petitioners, wherein the respondents conceded about the maintainability of the suit and also conceded for decreeing the suit subject to further payment to the respondents for the suit and according to the prevalent market rate." In the light of above discussion, I don't find any merit in the instant petition, which is dismissed in limine with no order as to costs.