RASAAL HASAN SYED, J. --- Judgment/order dated 27.03.2014 of the learned Addl. District Judge, Gujranwala whereby the appeal of the respondents was partially allowed and the case was remanded to the learned Executing Court for execution of a decree to the extent of delivery of symbolic possession of the shop roof, has been assailed in this revision petition by the petitioner/decree-holder .
2. Facts out of which this revision petition emerges are that the petitioner filed a suit for possession of the roof of a shop inter alia alleging that he had purch ased the said roof through a registered sale-deed, dated 17.1.2009, he was also owner of the shop by virtue of a separate registered sale-deed in his favour and that the respondents had no right or entitlement to possession of the roof in question and that the petitioner being entitled to the possession thereof, a decree be passed accordingly .
3. Respondent No, 1 filed written statement, wherein it was alleged that the petitioner had no cause of action, the petitioner approached the Court with unclean hands and that the plaint was liable to be rejected under Order VII, Rule 1 1, C.P .C. On facts, evasive denial was made and no defence, counter-claim or set-of f was claimed.
4. After evidence, the learned Civil Judge decreed the suit of the petitioner vide judgment and decree dated 28.1.2010 holding that the petitioner was absolute owner and entitled to the possession of the suit property and also entitled to the decree for its possession.
5. Respondents filed appeal to assail the decree dated 28.1.2010 that was dismissed by the learned Addl. District Judge Gujranwala vide judgment and decree dated 12.7.2012. Civil Revision No, 2888/2012 was tiled to assail the judgment and decree of the two Courts below which too was dismissed by this Court on 01.10.2012. It was observed in para-5 of the judgment that the pivotal issue of the case was issue No, 1 whereby the petitioner was required to prove exclusive ownership of the suit property , the three documents, Ex.P3 to Ex.P5, proved the ownership of the petitioner in the shop as also the roof It was observed that the petitioner was, therefore, proved to be owner and as such was entitled to claim possession of the property . It appears that the respondents did not further assail the three judgments. Resultantly judgment and decree of the learned Civil Judge attained finality .
6. Petitioner 'filed an execution petition for delivery of possession of the roof through the process of the Court.
Respondents at this stage filed an objection petition claiming that over the roof of the shop construction existed and that there being no specific order for the delivery of the possession of the constr uction over the roof, the decree could not be executed. It was claimed that actual possession could not be delivered only symbolic possession could be given and that the execution petition for the delivery of the possession was incompetent.
7. The learned Civil Judge dismissed the objection petition vide order dated 30.10.2012 observing that the matter/grounds raised in the objection petition having been decided against the judgment-debtor by the competent Court through judgment dated 28.1.2010 had attained finality . The executing Court could not re-adjudicate the same nor could it move beyond the decree and that the subject-matter raised being pre-decretal in nature, could not be entertained or adjudicated by the learned Executing Court through the objection petition.
8. Respondent filed an appeal against the order of rejection of objection petition dated 30.10.2012, which was partially allowed vide impugned judgment/order dated 27.3.2014 in terms whereof the case was remanded to the learned Executing Court for limited execu tion of the decree to .the extent of delivery of symbolic possession instead of physical possession. It is this judgment/decree of the learned Addl. District Judge, which has been impugned in the present revision petition.
9. Learned counsel for the petitioner vehemently submitted that the Appellate Court committed material illegality , the petitioner was entitled to the roof alongwith all appurtenances and that the respondent having failed to raise the plea of construction in his written statement nor ever attempted to challenge the judgment of the learned Civil Court on the plea of existence of any alleged construction in appeal or in revision before this Court, the objection could not be agitated in execution proceedings where the Executing Court was supposed to execute the decree as it was. It was added that the respondent being person in possession was bound by the decree in terms of Order XXI, Rule 35(1), C.P.C. being in actual possession of the roof in question, of which the decree for possession was granted in a case wherein they were party , the respondent could not be allowed to expect alteration or modification of the decree in the execution proceedings nor the learned Executing Court had any authority in law to treat the decree for actual possession as decree for symbolic possession. It was also contended that the impugned judgment suffers from serious jurisdictional error as the Executing Court travelled beyond its authority permissible, in law .
10. To the contrary learned counsel for the , respondent supported the Impugned judgment and re-agitated the same submission which prevailed with the learned Addl. District Judge for modification of the order of objection and for treatment of the decree as decree for symbolic possession.
11. Points raised and submissions made by learned counsel for the parties have been duly analyzed and considered in the light of the material annexed with this revision petition inclusive of the impugned judgment, objection petition, original pleadings of the suit, the evidence therein, the decree pissed by the Court, the decree of the Appellate Court and also the Order of this Court upholding the decree, and it is observed that for the reasons hereafter the order under appeal cannot sustain and that the learned Addl. District Judge committed serious error of law and travelled beyond its jurisdiction while modifying the order of the Executing Court or ,converting the decree in a decree for symbolic possession.
12. It is manifest from the plaint that the petitioner clearly asserted therein that he was the owner of the roof by virtue of a sale-deed Ex.P3 and that he purchased the shop vide sale-deed Ex.P4 and that the respondents did not have any right to decline possession of the roof to the petitioner . In this backdrop a decree for possession of the roof was claimed. Importantly ., the respondent, in the written statement though raised certain legal objections regarding cause of action and the conduct of the petitioner ,: yet on merits responded in an evasive manner . The perusal of the written statement reveals that it was nowhere claimed that the respondent had raised any alleged construction over the roof of the shop and that the suit was not maintainable in its existing form. So much so the respondent did not claim any compensation for the structure, if any. There was.no counter-claim, counter-defence or any set of pleadings in the written statement. Respondent No, 1 appeared as D.W.1 and simply deposed that in the division of the property , the roof did not fall to his share. tie claimed that by virtue of an iqrar-nama the shop had been given in his share and that the suit was false and groundless. In his stateme nt the respondent did not claim any construction nor he had raised any 'objection on such plea although this was one of the basic pleas that could be taken in the written statement. Respondent produced D.W.2 who too did not depose about any alleged construction over the roof of the shop but only deposed that the roof was not sold to the petitioner .
13. In this backdrop, the learned Civil Judge while returning findings on issue No, 1 to the effect as to whether the petitioner was exclusive owner of the suit property , declared that the petitioner was the lawful owner of the shop as also the roof; and was entitled to the possession of the roof. Another noticeable factor is that in the grounds of appeal against the decree which has been appended with the revision petition as Annexure "E", the respondent did not raise any plea of construction nor challenged the decree on any such alleg ed plea. So much so if in the judgment of the Appellate Court whereb y the decree of the Trial Court. was affirmed, it is observed that the respondent never raised the plea. of any alleged construction. Same is the case with the grounds of revision petition (C.R. No, 2888/2012) and final judgment of this Court observing that no such plea was ever raised. In this view of the matter , it is obvious that throughout the trial and till its final decision upto the stage of this Court, the respondent never raised the objection which was being attempted to be raised through objection petition. The learned Executing Court, therefore, rightly concluded that the grounds taken by the judgment-debtor No, 1 in the objection petition could not be raised at the stage of execution as the subject-m atter thereof was a pre-decretal matter which could have been entertained and adjudicated in the suit and not through the execution petition where the decree has to be executed as it is.
14. In the impugned judgment of Appellate Court, the learned Addl. District Judge modified the order of the learned Executing Court and assumed. that desp ite the fact the decree was for possession of roof, the construction over the roof of shop could not be demolished , and that only symbolic possession could be given. In other words, the learned Addl. District Judge modified the decree which was for physical possession, to a decree for symbolic possession in the execution proceedings. The order passed by the learned Addl. District Judge suffers from serious error of law .
15. It is a settled rule that all questions that pertain to the pre-decretal matters shall be raised in defence during trial and could not be allowed to be raised in execution proceedings. Executing Court cannot go behind or beyond the decree. In a similar case "Mst. Naseem Akhtar and 4 others v. Shalimar General Insurance Limited and 2 others" (1994 SCMR 22) wherein a decree for recovery of money granted in a suit against insurance company as well as the truck driver in an accident case, the Civil Court granted decree against both of them jointly and severely for the suit amount. In the execution proce edings an objection was raised that the liability of the insurance company was limited to the extent of Rs, 16,000 /- and therefore, the decree pertaining to insurance company with full decretal amount of Rs, 400,000/- was without jurisdiction and impermissible. The objection sustained at the High Court level but the order was set aside by the august Supreme Court on the ground that the executing Court could not go beyond the decree, and that pre-decretal matters/questions could not be agitated in execution proceedings.
The operative part of the judgment for facility of guidance is reproduced hereunder:-- "After hearing the learned counsel for the parties at length and perusing the recor d and the precedents we are of the view that no doubt that the liability of the appellants was limited under the relevant statute. In the suit filed by the appellants, the respondent No, I filed the written statement. It did not take the plea of limited liability . It produced its Manager as D.W.1, however decree was passed in favour of the appellants and against the respondents. The respondent No, 1 filed an appeal but did not prosecute it and it was dismissed for non-prosecution. The respondent No, 1 then filed an application for restor ation but did not prosecute. This too, was dismissed. Thus, the decree became final. In the execution proceeding s, it was not open to the respondent No, 1 to take up the plea which he had not taken before the learned Trial Court during the course of the hearing of the suit which was ultimately decreed and the decree was allowed to become final. In these circumstances, the respondent No, 1 itself is responsible for the decree against. It is pertinent to mention here that even though its liability was limited it is not open to the respondent No, 1 judgment-debtor now to contend that its liability has not been correctly assessed or determined. If it were permissible there will be no end or finality to the judgment and decree which had become final. Precedents noted and analysed above make quite clear that once a decree is passed it has to be executed in its terms and it is not open to the executing Court to go behind it and re-determine the liability of the parties. In this view of the matter there is no option but to allow this appeal and hold that the learned Judge in the High Court jell in error in giving effect' d the plea of the respondent No, 1 which had not been raised before the learned, Trial Court which granted the decree to the appellants...."
16. In the present case too, whether or not there was any construction on the roof, and if there was, whether the respondent had to remove the same or to claim compensation could, have been raised through the written statement. The respondent neither 'objected to the maintainability of the suit on this account nor challenged the decree on account of any alleged deficiency . So much so that no claim for compensation of structure, if any, was ever made in the written statement or in the deposition of respondent or even at the stage of appeal or revision against the decree passed in favour of the petitioner . In result, the decree became final whereafter the respondent could not during execution be allowed to raise pre-decretal matters.
17. Insofar as the reliance of the learned counsel for the respondent on the case of "Mst. Razia Bibi v. Muhammad Sharif and others " (PLD 2011 Lat. 450) the facts of the said case are distinguisha ble inasmuch in the said suit, no decree was passed against the objector , the construction was raised as a purchaser and after gutting sanction; but is the present case, the decree having been passed against the respondent in a suit which was filed against them for the delivery of the vacant possession. Under Order XXI, Rule 35(1), C.P.C. the respondent/judgment-debtor being in possession is bound to restore the same to the petitioner . The objection as to- the demolition of structure or its removal by the judgment-debtor is totally misconceived. In "Noor Muhammad Khan v. Haji Muhammad All Khan and 24 others" (PLD 1973 SC 218 ) it was ruled by the august Supreme Court as follows:--- "... In Section 13 of the Urban Rent Restriction Ordinance, the word used is "eviction" and the "eviction" would include the removal of superstructure also"
18. The learned Addl. District Judge by directing Executing Court to execute the decree of possession as a decree for symbolic possession, had virtually modified the terms of the decree, which was beyond -the purview of the executing Court. In "Sardar Ahmad Yar Khan Jogezai and 2 others v. Province of Balochistan through Secretary C&W Department" (2002 SCMR 122 ), it was ruled by the august Supreme Court that:-- "An in-depth scrutiny of the entire record would reveal that judgment/decree passed by learned 'High Court on 04.11.1985 had attained finality and furthermore the modification as allowed vide said judgment/decree was free from any ambiguity and accordingly the question of any clarification by the exec uting Court does not arise. The learned executing Court has modified the decree which had already attained finality by means of order , dated 13.4.1989 ... A bare perusal would reveal that "simple interest at the rate of 6% per annum from the date of decrees" as awarded by the learned High Court vide judgment/decree dated 04.11.1985 was substituted by holding that "the decree-holders are entitled to the awarded amount, work plus interest awarded added thereto from 1960 to the date of application with the rate of interest given in the award and till the date of the decrees dated 21.5.1977 and thereafter till them realization of the whole decretal amount at 6% per annum with simple interest". The said substitution or drastic amendment could not have been made by the learned Executing Court which in fact amounts to a futile attempt to frustrate the object of judgment and decree dated 4.11.1985 which had already attained finality and thus the order dated 13.4.1989 passed by the learned District Judge, Loralai (executing Court) is arbitrary , capricious and corum non judice. It worth mentioning that executing Court could not go beyond the decree. It is well-settled by now that "when decree passed attained finality it had got to be executed even if it was erroneously passed. Executing Court cannot rectify any mistake in decree which would tantamount to going behind decree" ... A Court executing a decree cannot go behind the decree; it must take the decree as it stands, for the decree, is binding and conclusive between the parties to the suit..."
19. In the instant case, the decree was not for symbolic possession, rather , it mandated delivery of physical possession of property . The respondent was bound to comply with this directive. Such afterthought claim of construction could not be entertained during proceedings for execution of decree, as the Executing Court is bound to execute the decree strictly in the terms provided therein. Even otherwise pre-decretal questions, if not raised during the trial or in the appeal till the stage of High Court, could not be permitted to be urged as objection to the execution of decree as the conduct of judgment-debtor will preclude him from doing so. The learned Addl. District Judge committed serious error of law in modifying the order passed by the learned Executing Court. In result, the impugned order being without jurisdiction and suf fering from serious legal error , cannot be approved.
20. Therefore, this revision petition is allowed , order of the learned Executing Court dated 30.10.2012 is restored and that of the learned Addl. District Judge dated 27.3.2014 is set aside.