RAZA ALI KHAN, J. This appeal has been filed against the order passed by learned District Judge, Bhimber, dated 27.08.2018, whereby, the order passed by the learned Senior Civil Judge, Bhimber, dated 08.08.2018 has been maintained.
Precise facts of the case are that Muhammad Iqbal respondent No.1 filed an application for execution of decree dated 15.12.2006 against appellants herein, in the Court of Senior Civil Judge, Bhimber on 12.04.2018. Appellants herein, filed objections on the application. The learned trial Court after hearing the parties vide order dated 08.08.2018, repelled the objections filed by appellants herein and issued warrant in the name of Collector District Bhimber for handing over possession of the land to the decree holder. Feeling aggrieved, appellants herein, filed a revision petition before District Judge Bhimber on 09.08.2018. The learned District Judge Bhimber after hearing the parties, dismissed the revision petition through impugned judgment dated 27.08.2018, hence, the captioned appeal.
The learned Advocate appearing for the appellants argued that the land in question was sold vide sale deed dated 14.06.1986 for the .consideration of Rs.2,50,000/-, whereupon, Basharat Ali respondent No.8 before the trial Court filed a suit for possession on the basis of right of prior purchase and applicant Muhammad Iqbal also filed suit for pre-emption. The learned Advocate further argued that suit filed by Basharat Ali was decreed subject to payment of consideration amount Rs.2,50,000/- along with expenses of the sale Rs.9,350/- and on depositing such amount the decree stood final in favour of Basharat Ali. The learned Advocate contended that thereafter, Muhammad Iqbal, decree holder filed a suit for possession of the said land on the basis of right of prior purchase against Basharat Ali and others which was decreed on 15.12.2006 subject to payment of Rs.2,50,000/-. He stated that as Muhammad Iqbal was well aware of the fact that earlier suit filed by Basharat Ali was decreed subject to payment of consideration amount Rs.2,50,000/- and the expenses of sale Rs.9,350/-, therefore, it was enjoined upon him to approach the Court for correction in the decree and obtain order for payment of Rs.2,59,350/- as decretal amount. The learned Advocate submitted that the decree dated 15.12.2006 is ab initio void, hence, cannot be executed. The learned Advocate stated that the application is time barred. The learned Advocate in support of his submissions placed reliance on the following case-law:
1. PLD 1982 Supreme Court 42,
2. 2013 SCMR 05 and
3. 2016 MLD 1779.
In PLD 1982 Supreme Court AJK 42, the apex Court of Azad Jammu and Kashmir observed as under: "14. The decree of pre-emption, passed in favour of the respondents was conditional. The condition precedent was that plaintiff-decree-holder shall fulfill the terms relating to payment of the decretal amount within the stipulated time. On failure to comply with the aforesaid condition, the suit shall stand dismissed. The plaintiffs/respondents failed to comply with the terms and conditions of the decree. On lapse of the stipulated period, the decree ceased to operate. The day, execution proceedings were initiated there was no decree in existence. Unless, the decree was subsisting and operative, no execution could be ordered. In the instant case the executing Court as well as the first appellate Court, rightly refused the execution."
The rule of law laid down in the above precedent is not attracted in the case in hand because the decree holder has deposited decretal amount within the stipulated period.
In 2013 SCMR 05 and 2016 MLD 1779, it has been held that the period of limitation of 3 years for filing execution application would commence from the date of accrual of right.
The learned Advocate appearing for the respondents argued that the decree passed by the trial Court dated 15.12.2006 is to be executed in letter and spirit and the appeal has been filed just to prolong the execution of the decree. The learned Advocate further argued that both the Courts below have concurrently decided the controversy, therefore, second appeal is not maintainable on the question of facts. The learned Advocate also stated that there is nothing in this case to record evidence and the decree sought to be executed is quite in accordance of law. The learned Advocate in support of his submissions placed reliance on following case law:
1. 1994 SCMR 22,
2. 1996 MLD 588,
3. PLD 2003 AJK SC 14,
4. 1992 SCR 154 and
5. PLD 1975 SC 624.
In 1994 SCM R 22 referred to and relied upon by the learned counsel for the respondents it has been held that:- "In the execution proceedings, 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 allowed to become final. In these circumstances, the respondent No.1 itself responsible for the decree against it, 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 analyzed 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 PLD 2003 Supreme Court (AJ&K) 14 it has been opined that:- "A decree passed by the Civil (court is either to be challenged the opposite party in case of its finality, is to be acted upon according to the terms conditions laid down in it."
In PLD 1975 SC 624 it has been held that:- "We have already stated that the lower appellate Court has held that the two wakf deeds were executed by Sh. Mellor Din under the undue influence of Mst. Murad Begum. Ordinarily, this has to be regarded as a finding of fact not susceptible to interference by the High Court in second appeal."
In 1992 SCR 154 it has been ruled that:- "It is well settled principle of law that concurrent findings of the Courts below on the question of facts are not open to challenge unless the same are shown to have been without any evidence on the record or suffer from the defect on non-reading misreading of the evidence."
I have heard the learned counsel for the parties, perused the entire material available on record with their able assistance and taken into consideration the case law referred to and relied upon by them.
A perusal of the record reveals that the land in question was sold vide sale deed dated 14.06.1986.
Basharat Ali, appellant No.6 herein, and Muhammad lqbal, respondent No.1 herein, both filed suits for possession of the land on the basis of right of prior purchase. The suit filed by Basharat Ali was decreed on 13.04.1991 and on payment of decretal amount, the decree became final, hence, that litigation became past and closed transaction. Thereafter, Basharat Ali transferred the land in favour of Muhammad Irfan and others appellants Nos.1 to 5 and proforma respondents Nos.2 and 3 herein, vide gift deed dated 11.03.2004. Muhammad Iqbal respondent No.1 herein, filed pre-emption suit stating therein that gift deed dated 11.03.2004 is in fact a sale and the same has been styled as gift deed in order to defeat the right of pre-emption of the plaintiff. At the conclusion of the proceedings, the suit filed by plaintiff/respondent No.1 herein was decreed on 15.12.2006 subject to payment of Rs.2,50,000/- till 15.02.2007. Admittedly, respondent No.1 deposited decretal amount within the stipulated period and the decree has become final up to the Supreme Court. The learned counsel for the appellants tried to interlink the earlier decision dated 16.04.1991 in suit filed by Basharat Ali, appellant No.6 herein, which is a closed and past transaction and has no concern at this stage with the execution of the decree dated 15.12.2006. The contention of the learned counsel for the appellants that it was enjoined upon the Court below to decree the suit subject to payment of consideration amount Rs.2,50,000/- as well as Rs.9,350/- which were paid by appellant No.6 as expenses of sale and in absence thereof, the decree is ab initio void and cannot be executed has no substance. Firstly the appellants herein were aggrieved from the decree, therefore, they should raise this point before the Appellate Court when they challenged the decree but they did not raise this objection during the pendency of the proceedings up to the Supreme Court and secondly, the price of the land was Rs.2,50,000/- and appellants herein, did not execute any sale deed rather executed a gift deed which was treated as sale deed and the suit filed by respondent No.1 was decreed, therefore, the question of expenses of sale does not arise. The case law referred to and relied upon by the learned counsel for the parties is also to the effect that a decree which has attained finality has to be executed in letter and spirit without modification.
By now it is settled rule of law that executing Court cannot as a rule go beyond the decree in pre- emption suit nor can extend its jurisdiction to go beyond the decree and question the correctness of decree. In the case in hand, the objections raised by appellants cannot be considered by the executing Court and the same are beyond the jurisdictional competence of executing Court. My view is supported by the rule of law laid down by the Hon'ble Supreme Court of Azad Jammu and Kashmir in case titled Mst. Hanifa Begum v. Hassan Shaikh and 3 others, reported as PLD 1983 SC (AJ&K) 163, wherein, it has been held as under: "It is well-settled that executing Court is vested with the power to execute a decree in the light of its terms. It cannot travel beyond the limits of decree. At least any question likely to frustrate the decree itself cannot be looked into be executing Court unless, of course, the decree is a nullity.
Again, it may be stated here that a decree is deemed as null and void when it is passed by the Court having no jurisdiction or it is a decree against a dead person. In brief the jurisdictional domain of executing Court spreads over the terms of the decree and the Court, in no circumstances, can transgress the limits of the decree."
Similar observations have been recorded by the apex Court of Pakistan in case titled Allah Ditta v.
Ahmed Ali Shah and others (2003 SCMR 1202) referred to and relied upon by the learned counsel for the respondents, in the following manners:- "This is an established rule that Executing Court cannot extend its jurisdiction to go behind the decree and question of its correctness except in a case in which decree is silent that what, property was subject-matter of execution. The Executing Court can look into the judgment in order to find out that property brought for the satisfaction of decree actually belonged to the judgment- debtor but cannot entertain an objection relating to the dispute of title and its determination which may change and alter the terms of decree."
I have no quarrel with the rule of law laid down in the judgments referred to and relied upon by the learned counsel for the appellants, however, a perusal of the record reveals that the decree dated 15.12.2006, sought to be executed, was challenged before the District Judge Bhimber and District Judge while accepting the appeal set aside the same and on appeal before this Court, the judgment and decree recorded by District Judge Bhimber dated 13.09.2008 was set aside and the decree dated 15.12.2006 was restored- vide judgment dated 10.07.2014 and review petition filed by decree holder was decided by Supreme Court on 29.03.2018, therefore, the date of accrual of right was 29.03.2018 the date of decision of the Supreme Court on review petition filed by decree holder, hence, the application filed for execution of decree dated 15.12.2006 is well within time. The impugned orders passed by the Courts below are quite in accordance with law and no illegality or legal infirmity has been found for interference by this Court.
It is also pertinent to note here that order dated 08.08.2018 passed by the learned Senior Civil Judge, Bhimber/ Executing Court was appealable before the District Judge. The appellants herein, challenged the aforesaid order through appeal/revision petition. The learned District Judge decided the same as revision petition while the proper course for the District Judge was to decide the same as an appeal, however, as this fact does not affect the fate of the proceedings, therefore, the same need not to be discussed in detail.
In view of above the captioned appeal is hereby dismissed having no merits in it. No order as to the costs.