CH. MUHAMMAD IQBAL, J. Through this writ petition, the petitioner has challenged the legality of judgment dated 14.11.2018 passed by the learned Addl. District Judge, Khanewal who accepted the revision petition of respondent No.3 and set aside the order dated 13.06.2018 passed by the learned executing court.
2. Brief facts of the case are that respondent No.3, Mst. Nausheen Ashraf filed suit for recovery of maintenance allowance and dower against the petitio ner. Petitioner filed contesting written statement and also filed suit for restitution of conjugal rights. Both suits were consolidated. Consolidated issues were framed and evidence was recorded. The learned trial court vide consolidated judgment & decree dated 08.05.2017 decreed the suit for recovery of maintenance allowance declaring the respondent No.3 / plaintif f entitled to recovery maintenance allowance @ Rs.3000/- per month since October , 2014 till her legal entitlement with 10% annual increase subject to performance of conjugal rights and also entitled to recover Rs.5000/- and 04-Kanals land as dower or as alternate its price Rs.5,00,000/- whereas suit of the petitioner / defendant for restitution of conjugal rights was also decreed subject to payment of maintenance allowance and dower to the plaintif f/respondent No.3. The decree holder/ Respondent No.3 filed execution petition and the learned executing court made installment of decretal amount directing the petitioner/judgment debtor to pay Rs.50,000/- as first installment and other according to schedule of other payments. Respondent No.3 / execution petitioner raised objection with regard to making installment of the decretal amount and contended that 4 Kanal land be transferred in her favour . This objection of decree holder was overruled by the executing Court vide order dated 13.06.2018. Against the said order , respondent No.3 filed revision petition which was accepted by the learned revisi onal court vide judgment dated 14.11.2018 and set aside the order dated 13.06.2018 of the executing Court. Hence, this writ petition.
3. I have heard the learned counsels for the parties at some length and gone through the record with their able assistance.
4. The learned Judge Family Court while allowing the suit of respondent No.3 passed the following decree; "1. Plaintif f is entitled to recover the maintenance allowance from the defendant @ Rs.3000/- per month from October , 2014 to till her legal entitlement with 10% annual increase subject to performance of conjugal rights.
2. Plaintif f is entitled to recover Rs.5,000/- and 04 kanals land as dower or its alternative price Rs.5,00,000/- from the defendant.
3. Suit of defendant for restitution of conjugal rights is hereby decreed subject to the payment of maintenance allowance and dower to the plaintif f."
The above judgement and decree has not been challenged any further by either side and same has attained finality .
As per law the executing Court cannot go beyond the scope of the decree and has to execute the decree in its letter and spirit. The command of the decree is as mentioned in serial No.2 above [the plaintif f is entitled to recover Rs.5000/- and 4 Kanals Land as dower or its alternate price of Rs.5,00,000/- from the defendant] wherein it is manifestly jotted down the entitlement of the plaintif f which constitute that it is exclusive choice of decree holder lady either to have property or the price whereof whereas the judgement debtor is precluded to adopt the course of his own choosing regarding the satisfaction of the decree rather the avenue given in the decree shall prevail unless expressly modified by the competent forum. As per available record the petitioner/judgment debtor is shown owner of land measuring 04-Kanals situated at Chak No.91/10-R. Thus it is incumbent upon the executing Court to effectively satisfy the decree firstly by giving land to the decree holder but if some insurmountable impediment exist or land is found deficient or not available or property partly available or impartitionable then the alternate mode may be resorted to by the Court directing the judgment debtor to pay the alternate price. It is settled law that executing court cannot go behind the decree rather it is duty bound to execute the decree in letter and spirit as per dictum laid down by the Hon'ble Supreme Court of Pakistan in a case titled as Syed Riaz Ahmad Shan and another Vs. Dayal Singh College T rust Society and another ( 1972 SCMR 237 ) has held as under:- According to well-settled principles of law the executing Court cannot go behind the decree. Therefore, to permit the petitioners to raise the objection will amount to asking the executing Court to go behind the decree which it cannot.
The Hon'ble Apex Court in another judgment reported as Muhammad Ali and others Vs. Ghulam Sarwar and others ( 1989 SCMR 640 ) observed that:- It is, however , submitted that the decree was wrongly drawn up by the Civil Court. But it is well-settled principle that the executing Court cannot go behind the decree and has to execute it as it is unless the decree is patently a nullity which is not the case here. Reference, however , may be made to Brig. (Retd.) 1 Muhammad Aslam Khan V. The Azad Government of the State of Jammu and Kashmir (1983 CLC 1204 ) and Messrs Haji Ahmed and Co. V.
Muhammad Siddique and others (PLD 1965 (W .P.) Kar . 293).
In another judgment title Mst. Naseem Akhtar and 4 others Vs. Shalimar General Insurance Company Limited and 2 others ( 1994 SCMR 22 ), the August Court held as under:- 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 is responsible for the decree against it, even though its liability was limited. It is not open to the responden t 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 fell in error in giving effect to the plea of the respondent No.1 which had not been raised before the learned trial Court which granted the decree to the appellants. It may also be noted that the decree has already been executed. There is no good ground in the circumstances to put the clock back. Therefore, the impugned order is set aside.
In another case titled as Irshad Masih and others Vs. Emmanuel Masih and others (2014 SCMR 1481 ), the August Court held that:- ....there is plethora of case-law on the legal point that the executing Court, under no circumstances can go beyond the decree..... ......This being the undisputed factual position in the present case, as rightly held by the High Court in its judgment dated 11-11-2002, the order of remand passed by the learned Additional District Judge Sahiwal dated 25-1-2001 was not sustainable in law, as the executing Court cannot go beyond the mandat e of the said judgment and thus the present petitioners had no locus standi to seek execution of either the judgments dated 20-1-1969, whereby their predecessor's suit was disposed of without grant of relief prayed for, or the other judgment of the Supreme Court dated 18-6-1995, dismissing their petition and confirming the judgment of the Lahore High Court dated 8-12- 1993. Rather , after the death of Mst. Marg ret in the year 1996, there was nothing in the said judgments which was executable at the request of the present petitioners. If any case-law is needed to fortify the view regarding limited jurisdiction of the executing Court, reference can be made to the following cases:-
(i) Muhammad Ali and others v . Ghulam Sarwar and others ( 1989 SCMR 640 )
(ii) Mst. Naseem Akhtar v . Shalimar General Insurance Company Limited ( 1994 SCMR 22 )
(iii) Province of Punjab through Secretary Industries v . Burewala T extile Mills Limited ( 2001 SCMR 396 )
(iv) Tauqeer Ahmad Qureshi v. Additional District Judge, Lahore (PLD 2009 SC 760) which, respectively lays down as under:- In the case of Muhammad Ali (supra), the Court recognized that it was well-settled principle of law that unless the judgment and decree was patently a nullity , the executing Court could not go behin d the decree and was bound to execute the same as it stands.
In the case of Mst. Naseem Akhtar (supra) it was held that it was an established principle of law that the Court in execution proceedings could not be allowed to embark on an inquiry to determine whether the Court passing the decree had the jurisdiction to do so. The Court emphasized that if such broad discretion was given to executing courts there could be no finality attached to any judgment and decree.
In the case of Province of Punjab v. Burewla (supra) this Court reiterated the above principle by stating that the Executing Court could not travel behind the terms of the decree, nor could it alter the terms or examine its correctness or proprietary .
In the last case of Tauqeer Ahmed (supra), apex Court affirmed that there could be no cavil with the proposition that the executing Court could not go behind the decree and would only be allowed to do so to examine whether the decree or pan thereof was executable or in-executable. It was held that only in such a situation was the Court empowered to refuse execution but that only to the extent of the in-executable part of the decree and was bound to proceed with the execution for the rest.
14. Having discussed the above two legal points involved in this review petition, when we revert to the facts of the case we find that not once, but twice the litigation in respect of the disputed land granted to deceased Arora before his death in the year 1933 had gone up to the level of apex Court and was finally decided in terms of the two judgments of the apex Court dated 10-12-1991 and 18-6-1995. In such circumstances, the order of this Court dated 22-10-2009, regarding which now review has been sought is nothing but a reiteration of the conclusions in the earlier two rounds of litigation. Thus, any request for review in substance will not be a simplicitor request for review of such order , but for the earlier judgments too,' which have been squarely made basis by the Court in its order dated 22-10-2009, as the only ground for dismissal of the appeal. It is important to reiterate that the Court dealing with a review petition and re-examining the order passed during execution proceedings, is constrained not only by the limited scope of exercise of jurisdiction of review , but also by the settled principle of law that the executing court cannot go behind the decree."
Reliance is also placed on the judgment of the Apex Court titled as Muhammad Tariq Khan Vs. Khawaja Muhammad Jawad Asami and others (2007 SCMR 818). And lastly the Islamabad High Court in a judgment titled as Allied Bank Limited Vs. Messrs Fazal V egetable Ghee Mills and others ( 2019 CLD 441 ) has held that:- "14. Following the principles laid down in the Ghulam Muhammad case Supra, the august Supreme Court has consistently held that an executing Court cannot extend its jurisdiction to go behind the decree and question its correctness. Reference may be made to the cases "Syed Riaz Ahmad Shah and another v. Dayal Singh College Trust Society and another" [1972 SCMR 237], "Muhammad Ali and others v. Ghulam Sarwar and others" [1989 SCMR 640], "Mst. Naseem Akhtar and 04 others v. Shalimar General Insurance Company Ltd. and 02 others" [1994 SCMR 22], "Fakir Abdullah and others Vs. Government of Sindh through Secretary to Government of Sindh, Revenue Department Sindh Secretariat and others" [PLD 2001 SC 131], "Allah Ditta v. Ahmed Ali Shah and others" [2003 SCMR 1202 ], "Rehmat Wazir and others v. Sher Afzal and others"
[2005 SCMR 668] and "Muhammad Ali v. Zakir Hussain" [PLD 2005 Lahore 331]. Two judgments have referred to exceptions to the established rule an executing court cannot look beyond the decree or look into the judgment, and the same are as follows:
(i) When the decree is silent regarding what property was the subject matter of execution, then only in such an eventuality the executing court can look into the judgment in order to find the said property . 2003 SCMR 1202 .
(ii) The executability of a decree can be questioned by the executing court if it is satisfied that (a) the decree is a nullity in the eyes of the law, (b) it has been passed by a Court having no jurisdictio n (c) the execution of the decree will not infringe the legal rights 0f the decree holder , if refused to be executed or (d) the decree has been passed in violation of any provision of law . PLD 2001 SC 131 ."
As such straightaway adopting the altern ate mode of satisfying the decree by the learned executing Court has no symmetry with the spirit of the decree and law as such the learned lower Revisiona l Court has rightly interfered with the erroneous order of the executing Court and has rightly passed the order impugned here in this constitutional petition.
5. Learned counsel for the petitioner has not been able to point out any illegality or material irregularity in the impugned judgment passed by the learned trial Court and has also not identified any jurisdictional defect.
6. In view of above, this writ petition is hereby dismissed being devoid of any merits.