MUHAMMAD NAEEM ANW AR, J.----This order in the instant petition / C.O.0 No.679-P/2018 shall also decide C.O.0 No.852-P/2018 not because that parties in both the petitions / applications are same but also arising out of the decision in Civil Revision No.683-P/2003.
2. Through this C.O.0 No.679-P/2018, the petitioner seeks the initiation of contempt of Court proceedings against respondent No.1 for not obeying the order / direction of this Court, rendered in Civil Revision No.683-P/2003. The background of said Civil Revision was that a suit for perpetual injunction, instituted by Noor Wazir Khan and others against Muhammad Azam and another , was dismissed by the learned trial Court, against which, the appeal was allowed and suit was decreed. When the judgment and decree of the learned appellate Court was assailed before this Court through Civil Revision No.683 -P/2003, this Court on 15.09.2003, dism issed the revision petition, the operative part of judgment is as under:- "Accordingly with the consent of the parties with the modification that none of the parties shall make any substantial alteration, improvements in the joint land including the suit land by way of construction or otherwise till the time of official partition take place according to law, the decree of appeal Court is maintained and this petition is dismissed with no order as to costs".
3. Later-on, in the year 2013, the applican t has filed an application for initiating the contempt of Court proceedings against respondents, in COC No.33-P/2013, the respondents were summoned, on their appearance, a statement of one Mukaram Khan was recorded wherein he stated that they have made construction in another property which was purchased by them in the year 1975. So, C.O.0 No.33-P/2013 was disposed of on 28.10.2013. However , on 17.01.2014, an application / CM No.10- P/2014 in C.O.0 No.33-P/2013 was filed by the petitioner . A commission was appointed for spot inspection and to apprise the Court for correct situation. The local commission submitted his report on 05.10.2015. This Court disposed of C .0 .C with the following observations: - "The Court directs that concerned Tehsildar and Station House Officer of the Police Station to ensure that the illegal construction mentioned above is removed. The identification of illegal construction mentioned above be made by Shah Faisal Ilyas, Advocate High Court, the commission, who had reported the said illegal construction to this Court. The needful be done on 12.10.2015 at 10:00 a.m. and report of the worthy Tehsildar duly signed by the concerned SHO and Shah Faisal Ilyas, Advocate, the commission, be sent to the learned Additional Registrar (Judicial) of this Court".
4. In compliance with the directions of this Court, the illegal construction was removed and the report, duly signed by Tehsildar , Shah Faisal Ilyas, Advocate, Girdawar Circle, Patwari Halqa and SHO, Pabbi was submitted before this Court on 12.10.2015.
5. Once again the applicant / petitioner came to this Court complaining the disobedience of the Court order by respondents through this C.O.C No.679-P/2018.
6. The background of Civil Miscellaneous No.852- P/2018 is that an application was filed for implementation of the Court order , by. Umar Nazir , to Deputy Commissioner Nowshera on 28.12.2017. The office of Deputy Commissioner through letter No.360-66/ADC/P A (encroachment) NSR/2018 dated 02.01.2018 requested the District. Police Officer, Nowshera for making necessary security arrangement through SHO for implementation the order of the Court. In order to get rid of the directions of police and applications of Umar Nazir , Mukaram Khan filed a CM No.153-P/2018 for initiating contempt of Court proceedings against Muhammad Nazir , however , his application was dismissed for non-prosecution on 12.10.2018, hence this Application No.852-P/2018.
7. Arguments heard and record perused.
8. It appears from record that in the year 2003, when the Civil Revision No.683-P /2003 titled "Muhammad Azam and another v. Noor Wazir Khan and 5 others" was dismissed, the decree for perpetual injunction passed by the appellate Court was maintained, which being not challenged has attained finality . So for implementing the decree, the law has provided a mechanism for execution and the forum before which the application for execution of the decree shall be filed which according to Section 37 of the Code of Civil Procedure, 1908, which reads as: - "37. The expression "Court which passed a decree" or words to that effect, shall, in relation to the execution of decrees unless there is anything repugna nt in the subject or context, be deemed to include, - (a) Where the decree to be executed has been passed in the exercise of appellate jurisdiction, the first instance, and (b) Where the Court of first instance has ceased to exist or to have jurisdiction to execute it, the Court which, if the suit wherein the decree was passed was instituted at the time of making the application for the execution of the decree, would have jurisdiction to try such suit"
9. As the decree for perpetual injunction was passed by the first appellate Court, thus the application for execution should have been filed in the Court of first instance i.e. civil Court and for execution of decree in case for injunction the procedure has been provided in Order XXI, Rule 32, which reads as:- "32. EXECUTION OF DECREES AND ORDER (1) Where the party against whom a decree for the specific performance of a contract, or for restitution of conjugal rights, or for an injunction, has been passed, has had an opportunity of obeying the decree and has willfully failed to obey it the decree may be enforced [ in the case of a decree for restitution of conjugal rights by the attachment of his property or, in the case of a decree for the specific performance of a contract or for an injunc tion] by his detention in prison, or by the attachment of his property , or by both.
(2) Where the party against whom a decree for specific performance or for an injunction has been passed is a corporation, the decree may be enforced by the attachment of the property of the corporation, or with the leave of the Court, by the detention in prison of the directors or other principal officers thereof or by both attachment and detention.
(3) Where any attachment under sub-rule (1) or sub-rule (2) has remained in force for one year if the judgement debtor has not obeyed the decree and the decree-holder has applied to have the attached property sold, such property may be sold; and out of the proceeds the Court may award to the decree -holder such compensation as it thinks fit, and shall pay the balance (if any), to the judgment-debtor on his application..
(4) Where the judgment-debtor has obeyed the decree and paid all costs of execut ing the same which he is bound to pay, or where, at the end of one year from the date of the attachment, no application to have the property sold has been made, or if made has been refused, the attachment shall cease.
(5) Where decree for the specific performance of a contract or for an injunction has not been obeyed, the Court may, in lieu of or in addition to all or any of the processes aforesaid, direct that the act required to be done may be done so far as practicable by the decree-holder or some other person appointed by the Court. At the cost of the judgment debtor , and upon the act being done the expenses incurred may be ascertained in such manner as the Court may direct and may be recovered as if they were included in the decree"
10. Insofar as the application under Order XXXIX, Rule 2(3) is concerned, that deals with the matters of Temporary Injunction and Interlocutory orders , which reads as: - "2. (1) In any suit for restraining the defendant from committing a breach of contract or other injury of any kind whether compensation is claimed in the suit or not, the plaintif f may, at any time after the commencement of the suit, and either before or after judgment, apply to the Court for a temporary injunction to restrain the defendant from committing the breach of contract or injury complained of or any breach of contra ct or injury of a like kind arising out of the same contract or relating to the same property or right.
(2) The Court may by order grant such injunction, on such terms as to the duration of the injunction keeping an account giving security or otherwise, as the Court thinks fit.
(3) In case of disobedience, or breach of any such terms, the Court granting an injunction may order the property of the person guilty of such disobedience of breach to be attached, and may also order such person to be detained in prison for a term not exceeding six months, unless in the meantime the Court directs his release"
11. Therefore, without going into the details of temporary injunction and perpetual injunction, suffice it to say that in the instant matter the provision of Order XXXIX, Rule 2(3) would not be applied being not the subject of temporary injunction or interlocutory order , thus seeking the remedy by initiating the proceeding under Order XXXIX, Rule 2(3) is misconceived as no proceeding could be initiated under the Rule 2(3) of Order XXXIX, C.P .C.
12. Furthermore, whether the decision of this Court while exercising the powers under Section 115, C.P.C., could be considered a subject for "contempt of Court" under the provision of Contempt of Court Ordinance, 2003, for which the Section 2(a) of the Ordinance is relevant, which is reproduced as under: - "2(a)"civil contempt" means the willful flouting or disregard of: - an order , whether interim or final, a judgment or decree of a Court; a writ or order issued by a Court in the exercise of its Constitutional Jurisdiction; an undertaking given to, and recorded by , a Court; the process of a Court.
13. In the matter in hand, this Court has dismissed the civil revision and affirmed the order of the appellate Court, so it was a simple matter for execution of decree as provided under Order XXI, Rule 32, C.P .C.
14. Apart from the above, the copy of memorandum of Civil Revision No.683-P/2003 is available which shows that Mukaram Khan was even not party in revision petition either in the panel of petitioners or in the respondents.
Though Mukaram Khan is the son of Ghabi Khan, but he himself was not the party to the suit. By that decree in Civil Revision No.683-P/2003, the then plaintif fs had prayed that till official partition no alteration should be made in the property , which, admittedly was joint property of both the parties but none of the parties for considerable period have opted for partition, when they were seeking that others may not change / alter the nature of the property till official partition, they should have moved for partition.
15. Another significant aspect of the matter is that the petitioner himself being plaintif f filed a suit for perpetual injunction by arraying Mukaram Khan as party , bearing No.41/1 was instituted on 04.08/2010, similarly another suit No.15/1 was also pending before civil Court and both were dismissed as withdrawn,-when the learned Civil Court passed the following order: - "02.1 1.2013. Parties present as before. The plaintif f through his counsel, submitted an application for the withdrawal of his suits bearing No.14/1 and 16/1. According to the application, the plaintif f is satisfied from the statement recorded by the defendant No.1 and 2 before august Peshawar High Court, Peshawar on 28.10.2013 and order dated 28.10.2013, by the august Court and in the light of the said statements of the defendants and the order , the plaintif f requested for the withdrawal of the said suits. Statement of the plaintif f, Umar Nazir , recorded and is placed in file No.14/1. Whereas, copy of the application along with the attested copies of the record of august Peshawar High Court, Peshawar placed in connected case No.16/1.
Defendant No.1, who is special attorney of the plaintif fs in the connected suit bearing No.15/1, also present. He also stated at bar that he wants to withdraw the connected suit bearing No.15/1. His statement recorded and placed in the connected Suit No.15/1.
In the light of the statements of the plaintif f and defendant Mukaram Khan, the main suit and the two connected suit are dismissed as withdrawn with no order as to cost. Be consigned to the record room after necessary compilation"
16. Now what was the statement of Mukaram Khan, which was recorded on 28.10.2013, in CM No.10-P/2014, which is reproduced as under:.- "I and my brother Muhammad Tariq, respondent No.1, who is presently abroad in U.K, hereby undertake that we have not made any construction on the disputed one kanal ten marlas. However , we have made construction on a. separate property , which we have purchased in the year 1975. We further undertake that we shall not make any construction on one kanal ten marlas of the disputed property . However , we may be allowed to renovate the path passing through the same"
17. The statement was clear that he would not make any construction in 01 Kanal and 10-Marlas property , however , when through a local commission, who visited the spot and submitted his report, on the basis of which, the illegal construction was not only removed but the decree was implemented in letter and spirit, thus, this Court disposed of CM No.10-P/2015 on 05.10.2015. Neither in the application any specif ication was given with reference to any particular construction nor the same was given in the plaint, in which the decree was passed, be that as it may, the decree passed by the appellate Court and maintained by this Court could , be executed under Order XXI, Rule 32, C.P .C. Therefore, this application stands dismissed, being without merit.
18. Turning to CM No.852-P/2018, by which, the petitioner (Mukaram Khan) has sought the prayer for initiating contempt of court proceedings against Umar Nazir for dragging him in frivolous litigation. Record reveals that order of Court in CM No. 10-P/2015 was imple mented / executed on 13.10.2015, when the report was submitted by the Tehsildar , therefore, no such, application could be submitted by Umar Nazir to Deputy Commissioner , Nowshera and no further process could be initiated / launched against Mukaram Khan. In this view of the matter , this petition too is disposed of in term of directing' the Deputy Commissioner , DPO, Nowshera and SHO not to proceed further on the application filed by Umar Nazir and his application be filed forthwith. Likew ise, Umar Nazir is also directed not to submit frivolous application against Mukaram Khan, however , both the parties are at liberty in seeking proper redressal under Order XXI, Rule 32, C.P .C., save in accordance with law .