AAMER FAROOQ J:---- Respondent No.1 filed a suit for specific performance and declaration against the appellant as well as respondents Nos.2 to 24 with respect to land measuring 111 kanal , 7 marla located in Khewat Nos.30, 31, 32, 36, 37, 55/165/166, 72, 79, 80, 95, 110, 290 and 291 Mouza Village Lunda Mastal, Tehsil and District Islamabad as well as land measuring 10 kanal 10 marla situated in Mouza Chehan, District Islamabad. The said suit was decreed in favour of plaintif f/respondent No.1, after the defendants excep t the appellant, made conceding statements. The suit was decreed on 07.04.2018. The appellant did not file appeal against said judgment and decree, however , in the execution proceedings filed by respondent No.1, the appellant filed objection petition to the extent that decree cannot be executed inasmuch as the suit land was acquired by Capital Development Authority in 1968 and entire formalities, with respect thereto, were completed. The said objection petition was dismissed vide order dated 25.04.2019, hence the appeal.
2. Learned counsel for the appellant inter alia contended that question regarding executability of the decree is to be determined by the court executing the decree. It was submitted that a decree cannot be executed inasmuch as land was acquired by CDA in 1968; that no decree for specific performance can be passed in light of section 32 of Capital Development Authority Ordinan ce, 1961. It was submitted that at best, respondents can claim compensation however even the same is not possible, as compensation was paid to predecessor-in-interest of respondent No.l. In support of his contentions, learned counsel placed reliance on cases reported as 'Muhammad Latif Khan v. Mst. Nayab Begum' (PLD 1968 Karachi 758), 'Fakir Abdullah and others v. Government of Sindh through Secretary to Government of Sindh, Revenue Department, Sindh Secretariat, Karachi and others' (PLD 2001 Supreme Court 131), 'Habib Bank Limited v. Mst. Parveen Qasim Jan and others, ' (2014 SCMR 322 ) and `Islamic Republic of Pakistan v . Muhammad Saeed' (PLD 1961 Supreme Court 192).
3. Learned counsel for respondent No.1 inter alia contended that court executing the decree cannot go behind the decree and the same is to be executed in letter and spirit. It was submitted that appellant is bound to execute the decree; that the appellant was present before learned trial court and did not file any appeal against judgment and decree.
4. Learned counsel for respondent No.3 supported the arguments by learned counsel for respondent No.1.
5. Arguments advanced by learned couns el for the parties have been heard and the documents, placed on record, examined with their able assistance.
6. It is pertinent to note that respondent s Nos.2 and 13 to 24 since did not appear hence were ordered to be proceeded ex parte.
7. Admittedly the land, in question, was acquired by Capital Development Authority in 1968, as the said fact is also mentioned in the plaint of suit filed by respondent No. 1. The appellant though was party to the proceedings and also was represented before learned trial court and did file written statement as well as confirmed the fact that the land is an acquired one, however , did not file any appeal against judgment and decree. The learned court, executing the decree, dismissed the objection petition primarily on the basis that it cannot go behind the decree. It is an established principle that executing court cannot go behind the decree, however , said principle/rule is not absolute and is subject to exceptions.
8. Moreover , all matters, arising out of judgment and decree between parties to the suit and relating to the execution, discharge or satisfaction of the decree, are to be determined by the court executing the decree under section 47 of Code of Civil Procedure. In this behalf, the case law relied upon by learned counsel for the appellant, is instructive. In case reported as 'Islamic Republic of Pakistan v. Muham mad Saeed' (PLD 1961 Supreme Court 192), the Hon'ble Supreme Court of Pakistan held that questions relating to the executability of an order or decree can be raised even in execution proceedings and it is open to the party against whom it is sought to be executed to show that it is null and void or had been made without jurisdiction or that it is incapable of execution.
Similar views were expressed by the Hon'ble Supreme Court of Pakistan in case reported as 'Habib Bank Limited v. Mst. Parveen Qasim Jan and others ' (2014 SCMR 322 ) in the following manner:- "In the proceedings of the execution of decree, the executing Court, while exercising jurisdiction under section 47, Cr.P.C., can question the executability of a decree, if it is satisfied that the decree is a nullity in the eyes of law or it has been passed by a Court having no jurisdiction or the non-execution of the decree would not infringe the legal rights of the decree-holder or the decree has been passed in violation of any provision of law, only then executing court can refuse to execute the decree".
Likewise, in case reported as 'Fakir Abdullah and others v. Government of Sindh through Secretary to Government of Sindh, Revenue Department, Sindh Secretariat, Karachi and others' (PLD 2001 Supreme Court 131), the principle laid down in case reported as 'Islamic Republic of Pakistan v. Muhammad Saeed' (PLD 1961 Supreme Court 192 ) supra, was af firmed.
9. In view of referred case law, it is clear that the questions, relating to execution or executability of a decree, can be raised and agitated before the court which is executing the decree. As noted above, the land in question was acquired by Capital Development Authority in 1968 and all formalities, in this behalf, were completed inasmuch as the order for acquisition was passed on 21.11.1968 by the Chairman, Capital Development Authority and other formalities were completed by way of notification dated 03.12.1968. Under section 32 of Capital Development Authority Ordinance, 1961, *the land in question now vests with CDA and respondents Nos.2 to 24 had no title in the same, so could not have entered into any agreement with respondent No.1 or could have made a statement regarding acceptance of the suit,. Since respondents Nos.2 to 24 had no title hence decree for specific performance could not have been passed ; at best, if compensation has not been paid to respondents Nos.2 to 24 or the previous owners, respondent No.1 would stand in the shoes of, respondents Nos.2 to 24 with respect to issue of compensation. In view of foregoing, judgment and decree dated 07.04.2018 is not executable in its present form, hence order dated 25.04.2019 is not tenable.
10. For what has been stated above, instant appeal is allowed; order dated 25.04.2019 is set aside; consequently , objection petition filed by the appellant is allowed. However , learned trial court, executing the decree, shall examine, whether the previous owners have received compensation for the land acquired by CDA and if not, whether same can be paid to respondent No.l. In case, compensation already stands paid, respondent No.1 may agitate appropriate proceedings against the previous owners of the suit property , as the execution proceedings shall fail inasmuch as the judgment and decree passed in his favour shall not be executable.