AHMAD NADEEM ARSHAD, J. Through this Civil Revision, petitioners assailed the vires of judgment dated 21.10.2016, whereby the learned appellate Court, while accepting the appeal of respondent No.3 set-aside the order dated 21.05.2015 of learned Executing Court with regard to dismissal of petitioner's objection petition and restored the execution petition filed by legal heirs of respondent No.3.
2. Shorn of unnecessary details, respondent No.3 namely Mst. Naseem Fatima (deceased) instituted a suit for specific performance of an agreement to sell dated 02.10.1989 against petitioner Mst. Iqbal Bibi (deceased) which was dismissed by the learned trial Court vide judgment and decree dated 17.07.1994. Mst. Naseem Fatima preferred an appeal and during pendency of said appeal, the parties entered into compromise and in the light of compromise deed Exh.C-1 the appeal was partially accepted vide judgment and decree dated 24.12.1998. Legal heirs of respondent No.3 filed an execution petition on 23.04.2014 against the legal heirs of Mst. Iqbal Bibi/present petitioners for the satisfaction of judgment and decree dated 24.12.1998. The petitioners filed an objection petition on 19.09.2014 with the contention that the execution petition is badly time barred and the same is liable to be dismissed. The learned execution Court after obtaining its reply allowed the objection petition and dismissed the execution petition vide order dated 21.05.2015 being barred by time. Feeling aggrieved, respondent/ legal heirs of respondent No.3 preferred an appeal which was allowed and the order passed by the learned executing Court was set-aside and the case was remanded to the learned executing Court with the direction to decide the execution petition in acdordance with law vide judgment dated 21.10.2016, hence, this Civil Revision.
3. Learned counsel appearing on behalf of the petitioners maintains that predecessor of respondent No.3 namely Mst. Naseem Fatima prepared a false and baseless agreement to sell and instituted the suit which was rightly dismissed by the learned trial Court vide judgment and decree dated 17.07.1994 but was partially decreed vide judgment and decree dated 24.12.1998 and thereafter predecessor of respondent No.3, on the basis of compromise, received back the consideration amount of Rs.28,000/- on 20.05.1999 in presence of witnesses and agreed not to file any execution petition; that after the death of decree holder Mst. Naseem Fatima, her legal heirs filed the execution petition which is totally against the compromise entered into between Naseem Fatima and Iqbal Bibi and barred by time; that the learned appellate Court wrongly set aside the order dated 21.05.2015, dismissed the objection petition and restored the execution petition. He lastly prayed for acceptance of this Civil Revision and setting-aside the impugned judgment dated 21.10.2016.
4. Conversely, learned counsel for the respondents Nos.3(i) to 3(iv) supported the judgment dated 21.10.2016 and while relying upon case laws cited as "Mst. Kaham Bibi Bibi through L.Rs v. Khushi Muhammad through L.Rs" (2007 SCMR 983), "Mst. Budhan Bibi and 8 others v. Khushi Muhammad and 8 others" (2010 YLR 1436[Lahore]), "Atta Ullah and 2 others v. Akbar" (2014 YLR 1034[Lahore]), "Syed Hakeem Shah (deceased) through LRs and others v. Muhammad Idrees ,and others" (2017 SCMR 316), "Muhammad Baaz v. Halqa Putwari Muza Mathra, Peshwar and another" (2021 CLC 689), prayed for the dismissal of instant Civil Revision.
5. I have heard learned counsel for the parties at length and perused the record with their able assistance.
6. Learned trial Court dismissed the execution petition mainly on the ground that it is barred by limitation, being filed on 23.04.2014 for execution of a decree dated 24.12.1998, after a very long and un-explained period of more than 15 years and 04 months, as per law any fresh execution petition should be filed within a period of 03 years of a decree and subsequent petition can be filed within 06 years, prescribed under section 48, C.P.C.
7. There is no cavil with the proposition that limitation for filing of an execution petition is not provided in limitation law and after enforcement of Law Reforms Ordinance, 1972 (XII of 1972) first application for execution of a decree would be governed by residuary Article 181 of Limitation Act, 1908, which provides period of 03 years. From perusal of Article 181 of the Limitation Act, 1908 read with Section 48 of the C.P.C., it becomes clear that for filing first application for execution, 03 years limitation will apply and any subsequent application will be run by the limitation provided in Section 48, C.P.C. which prescribes period of six years. No other law is relevant or applicable.
8. Peculiar facts of this case have to be looked into before applying the law. It is settled law that each and every case is to be decided on its own peculiar circumstances and facts as laid down by the august Supreme Court of Pakistan in case titled "Trustees of The Fort of Karachi v.
Muhammad Saleem" (1994 SCMR 2213). In present case, predecessor of respondents Nos.3(i) to 3(iv) namely Mst. Naseem Fatima, (deceased) instituted a suit for specific performance of agreement to sell dated 02.10.1989 against predecessor of petitioners Nos.1(i) to 1(v) namely Mst.
Iqbal Bibi which was dismissed by the learned trial Court vide judgment and decree dated 17.07.1994, however, during the pendency of appeal, the parties entered into compromise and in the light of compromise deed Exh.C-1 the appeal was partially accepted vide judgment and decree dated 24.12.1998 in the following terms: - "The parties have entered into a compromise and both the parties have put in appearance today along with their counsel and got their statements recorded, produced compromise deed Ex:C-1. As per compromise, the sale price has been paid and 5ks out of the suit land mentioned in Ex:C-1 is given to the appellant, where-as, the remaining land would remain with the respondent. In these circumstances, the appeal is partly accepted in terms of compromise deed Ex: C-.I and the appellant's suit for specific performance is partly decreed to the extent of 5ks of land as mentioned in Ex:C-1 against all consideration paid. The defendant/respondent shall transfer land as per compromise in favour of the plaintiff/appellant within one month from today, otherwise, decree-holder will be entitled to get- the property transferred through process of the Court."
9. In the present case the controversy is with regard to limitation for filing of execution petition in a suit for specific performance wherein the predecessor of the respondents Nos.3(i) to 3(iv) has already paid the consideration amount and got the possession of the suit property as is evident from the judgment of the learned appellate Court. As the predecessor of respondents Nos.3(i) to 3(iv) had paid the whole consideration amount coupled with the fact that she had taken the possession of the suit property, hence, these facts make this case of its own nature and unique. In somewhat similar circumstances, august Supreme Court of Pakistan has laid down following principles in case titled "Moulvi Abdul. Qayyu m v. Syed Ali Asghar Shah and 5 others" (1992 SCMR 241)
It will be material to bear in mind that a decree in a pre-emption suit is of a peculiar nature, Under Order XX, rule 14, C.P C., the title of the property accrues to the decree-holder on payment in the court of purchase money together with costs, if any. It has not been controverted before us that the requirements of rule 14 have already been complied with by the appellant. Thus, irrespective of the fact whether the possession is delivered-to him or not, title in the property has vested in the appellant and he is owner of the land in dispute. Viewed in this context the respondents' opposition to the execution of the decree becomes all the more ethereal."
10. Rights in property accrued to predecessor of respondents Nos.3(i) to 3(iv) after payment of consideration amount, therefore, it is not fair to deprive them from the benefit of the decree as laid down by the august Supreme Court of Pakistan in case "Syed Phul Shah v. Muhammad Hussain and 10 others" (PLD 1991 SC 1051) the relevant observations are as follow:- "It is also a well-known principle in Islamic justice, that one who succeeds in a litigation unjustly must not retain the benefit. It has been equated with burning charcoal in one's pocket; which, burns and eats away the winner's belongings including the retaining pocket also. Thus, while trying our best to do justice in accordance with law, the principles in our own jurisprudence governing just dispensation shall have to be kept in view. In other words, while adhering to the principle; justice in accordance with law, we will have to keep in mind that it is the birth right of every citizen in an Islamic State to seek and obtain justice. In this exercise of keeping balance between the undiluted justice and justice only in accordance with law, the general directional principles in Islamic come to the aid when, one exerts."
11. The august Supreme Court of Pakistan in case titled as "Mst. Hakam Bibi through L.Rs v. Khushi Muhammad through L.Rs."(2007 SCMR 983) declared that in such like situations there is no need to file execution petition for possession and could be awarded relief under Order XX, Rule 14, C.P.C., in the following manner- "It is a settled law that suit for specific performance is always suit for possession. In the present case as mentioned above the possession has already been with the petitioners since execution of agreement to sell since 1971, therefore, as mentioned above, petitioners do not require to file execution petition for possession of the property in question from the respondents. It is also a settled law that petitioners can file execution petition on the refusal of the respondents for the remaining part of the decree. The basic foundation of the case in hand was not pointed out by the learned counsel for the parties before the High Court as evident from impugned judgment. It was not in the knowledge of the learned High Court that petitioners had deposited the balance amount on 1.10.1986. The judgment of the learned High Court is, therefore, judgment per incurrium on account of failure of counsel for the parties qua the deposit of balance amount within the prescribed period and this fact was also not denied by the learned counsel for the respondents.
The judgment in favour of the petitioners is conditional subject to payment of the balance amount which had been deposited by the petitioners within the prescribed period, therefore; petitioners could be awarded relief in terms of Order XX, rule 14 C.P.C., wherein after specifying the decree qua the payment to the decree-holder is not required to file execution petition."
12. It is also well settled that justice should not be sacrificed. on account of technicalities which did not go to the root of the cause; in so far as the fairness thereof is concerned. It was held in "Syed Phul Shah's case referred supra as under: "Even if there would have been some force in the technical objection of the learned counsel, justice could not have been sacrificed, at least in this court, on the altar of the technicality which does not go to the root of the cause, in so for as the fairness thereof is concerned. The courts in Pakistan combine law and justice under the umbrella of Islamic jurisprudence; which provides harmonious solutions for situations like the present one. One amongst other principles which operates is that an obviously unjust and wrong decision which is also against the substantive law of the country shall be avoided by the Court."
13. Through judgment and decree dated 24.12.1998 suit of respondent No.3 for specific performance was partially decreed on account of compromise. It is evident from the said judgment that sale price of five kanals land was already given and possession had been delivered to her. In this way, first part of the decree was performed and the title of the property accrues to the decree holder.
Now it was the duty of the judgement debtor to perform her part as directed by the Court but she failed to transfer the decreed land as per compromise. Suit for specific performance is always suit for possession and as discussed earlier possession has already been with the decree-holder, therefore, decree holder does not require to file an execution petition for possession of the decretal land. Performance of the second part was upon the judgment-debtor and the decree holder can file execution petition on her refusal for the execution of the remaining part of the decree. There is no cavil with the proposition that one, who succeeds in a litigation, unjustly must not retain the benefit. It is the birth right of every citizen in an Islamic state to seek and obtain justice. The principles in our jurisprudence, governing just dispensation to do justice in accordance with the law shall have to be kept in view. After receipt of the consideration amount and delivery of possession it does not lie to the mouth of judgment debtor to question the maintainability of the execution petition on the point of limitation.
14. In view of above discussion, learned appellate Court has rightly observed and set-aside the order dated 21.05.2015 passed by learned executing Court, while accepting the appeal. Learned counsel for the petitioner has failed to point out any illegality or irregularity in the impugned judgment of learned appellate Court, warranting interference by this Court while exercising revisional jurisdiction.
15. Epitome of above discussion is that instant civil revision being meritless and having no force is hereby dismissed with no order as to costs.