ABDUL HAMEED BALOCH, J. Through this judgment I intend to dispose of above titled revision petition filed by the petitioner against the orders dated 15th November, 2018 and 26th December, 2018 (impugned orders) passed by learned Civil Judge-II, Quetta and learned Additional District Judge-I, Quetta respectively (executing and appellate court), whereby the executing court vide order 25th November, 2018 rejected the application filed by the petitioner for recalling of order dated 25th October, 2018 and appeal filed by the petitioner under Section 104, C.P.C. against the impugned order was also met with the same fate vide impugned order dated 26th December, 2018.
2. Concise facts of the case are that the predecessor in interest of respondents Nos.1 to 7 namely Mumtaz Begum filed a suit for declaration, possession, cancellation of documents, mesne profit and permanent injunction which was ultimately decreed vide judgment' and decree dated 3rd March, 2009 by learned Civil Judge-II, Quetta. Whereafter, the predecessor-in-interest of respondents Nos.1 to 7 filed execution application on 16th July, 2009. During pendency of the execution Mumtaz Begum died, as such her legal heirs i.e. respondents Nos. 1 to 7 were impleaded.
During pendency of the execution the Civil Judge-II, Quetta (Executing Court) on 25th October, 2018 directed the petitioner to handover vacant possession of deereed land or to pay Rs.5,000,000/- to the legal heirs of decree holder late Mumtaz Begum and petitioner put his signatures on order sheet dated 25th October, 2018. Against the order dated 25th October, 2018 the petitioner filed an application for recalling of order which was rejected by the learned executing court on 15th November, 2018. Being aggrieved the petitioner filed appeal before learned Additional District Judge-I, Quetta, but the same was also dismissed vide impugned order dated 26th December, 2018, hence this petition
3. Heard and have gone through the record with the valuable assistance of learned counsel for the parties. The predecessor of respondents Nos. 1 to 7 namely Mst. Mumtaz Begum (plaintiff) filed a suit for declaration, possession, cancellation of document mesne profit and permanent injunction with the prayer: a. To declare that the property bearing inteqal No. 1210, khatooni No. 78/116, khasra Nos. 10, 11, 53, 57, 9 and 12 measuring 31 rods 16 Qitas Mohal Chashma Hudda, Mouza Hudda, Tappa Saddar, tehsil and District Quetta; b. Property bearing inteqal No. 257. khatooni No. 9/12, khasra Nos. 121, 8 ds 32 poles, Mohal Naib Karez, Mouza Shabo, Tappa Saddar, Tehsil and District Quetta; c. Property bearing inteqal No. 698, khatooni No. 43/68, Khasra Nos. 274, 275, 313, 314, 28 rods 34 poles 4 Qitas, Mohal Chashma Habib, Mouza Habib Tappa Saddar Kasi, Tehsil and District Quetta are the ancestral properties of deceased Ghulam Nabi; d. To declare that the plaintiff is entitled to receive her due share from the above noted ancestral properties; e. To declare that the defendant No. 1 and father of defendants Nos. 2 and 5 to 9 and defendant No.2 got transferred the above noted ancestral properties in their names by making mis- statements and putting forged Fatwa concealing the facts that the plaintiff was also one of the co- sharer in these properties before defendant No. 10; f. By canceling the mutation entries in the name of defendant No.1 and father of defendants Nos. 2, and 5 to 9 and defendant No. 2; g. By directing the defendants Nos. 2 and 5 to 9 to pay the due share from the income of the properties as mesne profit from the first day of income of these properties, transferred by defendants Nos.1, 2 and father of defendants Nos. 2 and 5 to 9 in their names fraudulently; h. Directing the defendant No. 16 to restore the possession of the due share of the plaintiff in her name; i. To restrain the defendants Nos. 1, 2 and 5 to 9 permanently not to interfere in the due share of plaintiff.
4. The defendants contested the suit. After recording pro and contra evidence the trial court decreed the suit.
5. The suit was decreed by the court of competent jurisdiction. The executing court is under legal obligation to execute the decree in letter and spirit. Though under Section 47, C.P.C. the executing court can deckle the objections if filed. The executing court has empowered to decide all questions relating to execution, discharge and satisfaction of the decree. It would be appropriate to reproduce Section 47, C.P.C. for ready reference: "47. Questions to be determined by the Court executing decree.----(1) All questions arising between the parties to the suit in which the decree was passed, or their representatives, and relating to the execution, discharge or satisfaction of the decree, shall be determined by the Court executing the decree and not by a separate suit.
(2) The Court may, subject to any objection as to limitation or jurisdiction, treat a proceeding under this section as a suit or a suit as a proceeding and may, if necessary, order payment of any additional court fees.
(3) Where a question arises as to whether any person is or is not the representative of a party, such question shall, for the purposes of this section, be determined by the Court.
Explanation.----For the purposes of this section, a plaintiff whose suit has been dismissed and a defendant against whom a suit has been dismissed, are parties to the suit."
6. Under the above referred Section only the competency of executing court is to execute the decree as it is. The executing court has no authority to go behind the decree. Admittedly the decree attained A finality. Once the decree attained finality the same has to be executed according to decree. The honorable Supreme Court in case Jameela Pir Bukhsh v. Appellate Authority, 2003 SCMR 1524 held: "14. It is often said that delay in justice amounts to denial of justice. There is no fault with the Judicial System. It is its administration which causes that much delay. Litigation has increased manifold but the manpower to tackle the same does not commensurate with the same. Perplexity of technicalities is perhaps one of the major reasons for this delay. Even petty matters linger on for decades to reach their logical conclusions. Such an approach creates great hurdle in the way of the oppressed to get justice within a reasonable time which naturally results in generating frustrations and despondency against the System. The Courts must not shatter the trust reposed by general public in them by involving themselves in procedural technicalities. Their prime duty is to administer substantial justice which should not only be done but also seen to have been done at the earliest. At this juncture it would be appropriate to reproduce the observations of the Judicial Committee of Privy Council made as far back as in the year 1872 in the case titled The General Manager of the Raj Durbhunga, under the Court of Wards v. Maharajah Coomar Ramaput Singh (14 MIA 605 = 17 WR 459 = 10 BLRPC 294 = 2 Suth. PCJ 575 = 3 Sar. PCJ 117 respecting the plight of litigants in this part of the world which are as under:-- "The Right Hon. Sir James Colvile.-These proceedings certainly illustrate what was said by Mr. Doyne and what has been often stated before, that the difficulties of a litigant in India begin when he has obtained a decree. When, whoever, the actual question which is at issue between the appellant and the respondent on this appeal is eliminated from the rest of the record, it does not appear to their Lordships to present any very great difficulty."
We note it with pain that the situation has not improved after the passage of the one hundred and thirty years. It has rather got worsened and the parties suffer agonies of litigation without final determination for generations"
7. It is settled principle of law that the decree can be enforced by any of the mode authorized by the Code of Civil Procedure. It is duty of the executing court to provide assistance to the decree holder for execution of the decree. The executing court while executing the decree has to determine how and in what manner the decree shall be executed.
The court should assist the decree holder to get benefit of the decree. Technicalities should not be hurdle in the way of execution of decree. Reliance is placed on Venkappa's case; AIR 1956 Hyderabad 7 and Muhammad Hussain Shah's case PLD 1943 (sic) Lahore 166. The executing court should to do justice and not allowed technicalities to come in the way of justice and deprive the decree holder from benefit/fruit of the decree. The decree is not mere paper. The executing court is duty bound to execute the decree without delay and used all means for execution of the decree. It appears that execution is made difficult task. It took so long period. It shattered the faith of decree holder from the court. In Muhammad Naeem's case 2013 MLD 9741(sic), this court held: "----The executing court at Quetta rightly arrived to the conclusion that neither it was empowered to set aside the decree, nor can dismiss the execution application, ----"
Further, in case Ahmed Murtaza v Naseera Fatima Sughra, 2021 CLC 400 (Islamabad) it was held: "12. Section 47, C.P.C. provides the scope of jurisdiction of the Executing Court to the extent of determining the questions relating to execution, discharge or satisfaction of the decree between the parties to the judgment and decree, passed by the trial Court as the conclusion in judgment and decree is the outcome of long drawn process of recording evidence on facts. The Executing Court thus, is not authorized to entertain any new question out of the same set of facts and record which was not raised during the course of trial as it would violate the mandate and scope of section 47, C.P.C. This Court, vide judgment reported as "Allied Bank Limited v. Messrs Fazal Vegetable Ghee Mills and others" [2019 CLD 441] while placing reliance on the judgments of the Hon'ble apex Court, has laid down the following principles with regard to the jurisdiction of the learned Executing Court:- "14. Following the principles laid down in the Ghulam Muhammad's case Supra, the august Supreme Court has consistently held that an executing Court cannot extend its jurisdiction to go behind the decree and question correctness. Reference may he made to the cases "Syed Riaz Ahmad and another v. Dayal Singh College Trust Society and another" [1972 SCMR 2371, "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 v. 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 jurisdiction (c) the execution of the decree will not infringe the legal rights of 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, Hon'ble Lahore High Court, vide judgment passed in case titled "Muhammad Khan through Special Attorney v. Naseer Ahmed and others" (2019 YLR 1756) has also observed that:- "It is a settled rule that all questions that pertain to the pre-decretal matters shall be raised in defence during trial and could not be allowed to be raised in execution proceedings. Executing Court cannot go behind or beyond the decree".
In view of above the petitioner failed to point out any illegality in both the impugned orders of the courts below. Therefore, the petition is dismissed. However, the executing court is directed to execute the decree in letter and spirit according to the decree possibly within a period of four months without unnecessary adjournments. No orders as to costs.