ABDUL HAMEED BALOCH, J.---- The petitioners filed instant constitutional petition with the prayer: "Keeping in view the above mentioned facts and circumstances, it is respectfully prayed that the impugned order dated 20.04.2019, passed by Additional district Judge-WI Quetta in Civil Appeal No. 68/2018 may kindly be set aside in the interest of justice, equity and fairplay ."
2. Facts of the instant petition are that the petitioners filed a suit bearing No. 49 of 2009 for declaration and permanent injunction in the court of Senior Civil Judge-II, Quetta, which was decreed on the basis of compromise vide order dated. 28th March, 2013. Whereafter , the petitioners/decree holders filed execution application bearing No. 19 of 2014 before the Executing Cour t i.e. Senior Civil Judge-II, Quetta. The Executing Court directed Tehsildar to execute the judgment in letter and spirit of the decree vide order dated 10th February , 2016, who submitted report on 25th February , 2016. Meanwhile on the compromise effected between the parties on the basis of Arbitration dated 22nd November , 2016 the petitioners/ decree holders withdrawn his execution application on 8th March, 2017. During pendency of first execution application filed by the decree holders the judgment debtors Nos.
1 to 3 filed another execution application bearing No. 3 of 2017 on 15th February , 2017. The decree holders and judgment debtors Nos. 4 and 5 filed objections on the execution application of judgment debtors Nos. 1 to 3. The learned Executing Court vide order dated 19th October , 2017 dismissed the execution application No. 3 of 2017 being barred by time. Being aggrieved from the impugned order the judgment debtors Nos. 1 to 3 filed appeal before appellate court under Section 104 Civil Procedure Code (C.P.C.), which was accepted by learned Additional District Judge-VII, Quetta, vide order dated 24th April, 2019 and matter was remanded to the Executing Curt for satisfaction of the decree.
3. The learned counsel for the petitioners argued that the respondent/ judgment debtors Nos. 1 to 3 filed execution application on 15th February , 2017, whereas the decree was passed on 28th March, 2013. Under Article 181 of Limitation Act, 1908, the period provided for filing first application is three years. The judgment debtors Nos. 1 to 3 filed application beyond the provided perio d. The Executing Court has rightly dismissed the execution application of judgment debtors Nos.1 to 3.
4. The learned counsel for the respondents Nos. 1 to 3 strongly opposed the contention of the petitioner and supported the order of the appellate court. The learned counsel contended that the petitioners have withdrawn their execution application on the basis of compromise. The respondents Nos.1 to 3 neither signed any compromise, nor the Executing Court noticed them. In this regard the order of the Executing court is patently illegal. The appellate court has rightly remanded the matter with direction to satisfy the decree.
5. Heard the learned counsel for the parties and perused the record. It appears that the petitioners filed Suit No. 49 of 2009 before the court of Senior Civil Judge-II, Quetta, which was decreed on the basis of terms of compromise vide order dated 28th March, 2013. Thereafter , the petitioners filed execution Application No. 19 of 2014. The Executing court vide order dated 10th February , 2016 directed Tehsildar Saddar for execution of the decree dated 28th March, 2013 in letter and spirit. In response thereof Tehsildar submitted his report on 25th February , 2016. It would be relevant to reproduce relevant order sheet of the Executing Court: {{URDU TEXT}}
6. All the questions arising between the parties shall be determined by the Executing Court. the provisions of Section 47, C.P.C. make no distinction between a "decree holder" and "judgment debtor". Any of the party can invoke the jurisdiction of Executing Court. Normally the decree holder approached the court for execution of the decree. There is no bar on judgment on filing objection petition or initiating execution proceeding. Reliance is placed' on Industrial Development Bank of Pakistan v. Messrs Crystal Chemicals Limited PLD 2009 Lah.
176. It was held: "Section 47, C.P.C. makes no distinction between a decree holder and a judgment debtor when it comes to the invocation of jurisdiction of the executin g Court. Generally it is a decree holder who comes to the Court for execution of his decree against a judgment debtor . However , there is no bar against a judgment debtor filing an objection petition and initiating execution proceedings. Reference in this regard may be made to Riaz Hussain v.
Muhammad Akbar (2003 SCMR 181), where it was held that "Object of Legislature is to provide an opportunity to 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 limits the scope of S. 47, C. P.C. and thus militates against the object and intention of the legislature." Restriction on filing an objection petition under S. 47, C.P.C. in the absence of an execution application would have placed the judgment debtors in the unenviable position of having no remedy and forum for redressal of their grievance. Similarly in erusappa Mudallar v. Commercial and Land Mortgage Bank Limited (1899 Madras series Vclume 23), it was held that "Court executing a decree includes proceedings initiated by decree holder and by judgment debtor ."".
7. The decree dated 28th March, 2013 was passed on the basis of compromise effected between the parties. Each party's share has been determined in the compromise deed and the suit was decreed on the basis of terms and conditions of compromise. The record reveals that the Executing Court vide order dated 10th February , 2016 directed Tehsildar Saddar to execute the decree in letter and spirit. It was the duty of the Executing court to implements its own order passed on 10th February , 2016.
8. Admittedly the petitioners filed Execution Application No. 19 of 2014 and during pendency of the execution application the judgment debtors Nos. 1 to 3 have also filed execution application. It is pertinent to mention here that both the applications were filed in same court. It was the responsibility of the Executing Court to consolidate both the execution applications and implement its order dated 10th February , 2016. The decree holders filed execution application for execution of the decree which has already been determined by he trial court. It is not question that which party filed execution application. The court should execute the decree according to the decree.
9. The learned counsel for the respondents Nos. 1 to 3 pointed out that as per compromise deed the share mentioned in para 4 and para 6 has not been handed over to them. At this juncture the learned counsel for the petitioners contended that the referred to property has not been mutated in the record of rights in the names of petitioners. For determining actual position it is requires to call for revenue record. This court in constitutional jurisdiction could not go through factual controversy .
10. The order passed by the appellate court is speaking one and well reasoned. The petitioners have failed to point out any illegality or irregularity in the order of the appellate court calls for interference by this court.
In view of the above, the instant consti tutional petition being void of merit is dismissed and the order of the appellate court (Additional District Judge-VII, Quetta) dated 20th April, 2019 is upheld. No orders as to costs.