ALI BAIG, C.J. The instant civil revision petition is directed by the petitioner against the impugned order dated 24-05-2022 passed by the learned District Judge, Ghizer in CFA No.04/2022, whereby the learned 1st Appellate Court Ghizer has dismissed the civil first appeal of the present petitioner by maintaining the order dated 04.12.2021 passed by the learned Executing Court Gupis/Yasin in Execution Petition No.14/2021.
2. Briefly stated facts of the case giving rise to the filing of the instant Civil Revision Petition are that the present respondents had instituted a civil suit in the Court of learned Civil Judge Gupis/Yasin and the same was decided on the basis of compromise effected between the parties, vide compromise decree dated 18.08.2020. In the aforesaid compromise, the compromise deed was made rule of Court by the learned trial court.
3. On 15.07.2021, the present respondents had filed an execution petition before the learned Senior Civil Judge Punial/Ishkoman for execution of compromise decree, which was later on transfer to the learned Executing Court Gupis/Yasin as the compromise decree was exclusively executable by the learned Executing Court Gupis/Yasin, vide order dated 23.10.2021.
4. During pendency of the execution petition before the learned Executing Court, Gupis/Yasin, the present petitioner had filed an objection petition under - section 47, C.P.C. before the learned Executing Court, Gupis/Yasin and the learned Executing Judge after hearing arguments on behalf of both the parties, had dismissed the objection petition of the present petitioner, vide order dated 04.12.2021.
5. Feeling aggrieved and dissatisfied with the aforesaid order of the Executing Court Gupis/Yasin, the present petitioner had preferred a civil 1st appeal before the learned District Judge, Ghizer and the learned 1st Appellate Court Ghizer after hearing pro and contra arguments of the parties, has also dismissed the civil 1st appeal of the present petitioner, vide order judgment/order dated 28.05.2022.
6. Again feeling aggrieved and discontented with the aforesaid impugned judgment/order of the learned 1st Appellate Court Ghizer, the petitioner has filed the instant civil revision petition before this Court.
7. The learned counsel for the petitioner argued that the learned Courts below have not followed the mandatory provisions of law and procedure as such both the impugned orders of lower Courts are not maintainable and liable to be set aside. The learned counsel for the petitioner further argued that the present respondents have filed the execution petition before the Executing Court Gupis/Yasin beyond the scope of compromise decree dated 17.08.2020, but the learned Courts below have erroneously ignored this fact and have wrongly dismissed the objections of the petitioner, hence both the impugned orders are not sustainable in the eye of law and liable to be set aside. The learned counsel for the petitioner further argued that as per compromise decree the petitioner is owner of 10 marla land and the said piece of land is still in possession of the petitioner, as such the impugned orders are against the fact of the case which are liable to be set aside.
Lastly, the learned counsel for the petitioner argued that the concurrent findings of the learned courts below are result of misreading and non-reading of record of the case, therefore, the orders of both the courts below are liable to be set aside by accepting the instant civil revision petition.
8. Conversely, the learned counsel for the respondents controverted the arguments advanced by the learned counsel for petitioner and supported the impugned orders passed by the learned lower courts by contending that the petitioner is trying to encroach the adjacent lands in addition to 10 marla decretal land, and this act of the petitioner is contrary to the terms and conditions of compromise deed, hence both the orders passed by the learned Courts below are result of correct appreciation of facts on record. The learned counsel for the respondents further contended that the respondents have sought execution of the compromise decree in its true letter and spirit whereas the petitioner is trying to linger on the matter without any legal justification, hence both the learned Courts below have rightly passed the impugned orders as such the instant revision petition is not maintainable and the same is liable to be dismissed in the interest of justice.
9. I have heard the arguments advanced by the learned counsel for the parties and have also perused the record available on file with the able assistance of the learned counsel for the parties.
10. From perusal of record it transpires that on the basis of compromise deed dated 17-08-2020 effected between the contesting parties a compromise decree has been passed by the learned Trial Court by making compromise deed as rule of the court vide order dated 17-08-2020. After attaining finality of compromise decree the present respondents had filed an execution petition before the executing court Gupis. The present petitioner had filed objections against the execution petition before the trial/ executing court and the learned trial court after hearing arguments on behalf of both the parties has dismissed the objections filed by the present petitioner vide impugned order dated 17-08-2020, which was maintained by the learned 1st Appellate Court.
11. Perusal of order dated 14-12-2021 passed by the learned Trial Court reveals that the learned Executing Court has dismissed the objections of the present petitioner on the presumption that the judgment debtor / present petitioner is violating the terms and conditions of consent decree and is interfering in the property of the present respondents/ decree holders. In this connection neither the learned executing court has recorded any evidence regarding violation of terms and conditions of consent decree by the present petitioner nor the learned; executing/trial judge has carried out site inspection of the disputed property. How the learned executing court has come to the conclusion that the present petitioner is violating terms and conditions of compromised decree. According to the mandate of law the court is bond to record reasons for its order on the basis of evidence.
12. After hearing arguments of advanced by the learned counsel for the parties and going through the record of the case, I am of the firm view that the learned trial court as well as the learned 1st Appellate court have failed to apply its judicious -mind while passing the impugned judgments / orders and rather have passed the aforesaid impugned judgments / orders in a hasty manner.
Hence, the impugned orders could not be termed as fair rather passed in disregard to the provisions of law and resulted into complete failure of justice.
13. For what has been discussed above, this civil revision petition is allowed and both the impugned orders / judgments of both courts below are hereby set-aside and the case/ matter is remanded to the learned civil court/ executing court Gupis / Yasin with direction to decide the execution petition afresh after inspecting the disputed site in person or recording evidence, regarding violation of terms and condition of compromise deed / decree by the present petitioner and hearing arguments on behalf of both the parties. Parties are left to bear their own costs. File.