MUHAMMAD FAHEEM WALI, J.- This order is directed to dispose of the petition filed by petitioner under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, against impugned order passed the learned Additional District Judge-V, Haripur, whereby the learned Additional District Judge-V, Abbottabad, while setting aside the order dated 18.03.2021, passed by the learned Civil Judge-I, Haripur/executing Court, held that the execution petition filed by the respondents was maintainable.
2. Briefly, the facts leading to filing of instant petition are that parties to the instant petition along with others were joint owners in the property which was privately partitioned through family settlement and mutation No. 4940 was attested on 02.12.1990 in respect of partition. Later, respondent/defendant No. 1 gifted certain portion of his property to his son/defendant No. 5.
Petitioner assailed mutation No. 4940 as well as subsequent mutations No. 5146 attested on 08.08.1992 and 5455 attested on 13.12.1995 through civil suit before the learned Civil Court concerned. The respondents herein contested the suit, and the suit was dismissed by the learned civil Court. The judgment and decree passed by the learned Civil Court was upheld up to this Court and has attained finality. Thereafter, respondents filed execution petition before the learned Civil Judge-I/ Executing Court, Haripur for possession of the property, falling in their ownership pursuant to mutation No. 4940 attested on 02.12.1990. The petitioner filed objection over the execution petition, on the ground that no decree has been passed in favour of respondents/defendants, therefore, their execution petition was not maintainable. Learned executing Court accepted the objection raised by the petitioner/plaintiff and dismissed the execution petition vide order dated 18.03.2021. The respondents assailed order of learned executing Court through Civil Revision before the learned Additional District Judge-V, Haripur. The learned Revisional Court, vide judgment dated 05.01.2022, accepted the revision and while setting aside order passed by the learned executing Court, held the execution petition maintainable. Feeling aggrieved, petitioner approached this Court through instant constitutional petition.
3. I have heard arguments of learned counsel for the parties and perused the record.
4. Perusal of record reveals that the petitioner/plaintiff sought declaration to the effect that mutation No. 4940 dated 02.12.1990 was wrong, illegal and ineffective upon his rights and therefore was liable to cancellation. Similarly, subsequent mutations No. 5146 dated 06.08.1992 and 5455 dated 13.12.1995 were also liable to cancellation. He also sought possession of the suit property. The plaintiff, however, failed to substantiate his claim up to this Court and it was held that partition mutation No. 4940 dated 02.12.1990 was rightly entered and attested. Thereafter, the respondents filed execution petition before the learned executing Court, seeking possession of their share pursuant to mutation No. 4940 dated 02.12.1990. Now the question for determination before this Court is "whether execution petition filed by the respondents, who were defendants in main suit, was maintainable?
5. No doubt, the decree as defined under Section 2 (2) of the Civil Procedure Code, 1908 is a formal expression of adjudication by the Court, determining the rights of parties, with regard to all or any of the matters in controversy in a suit and therefore, defendants could also be included in the definition of a decree holder. Guidance in this respect may be sought from the case of "Mst.
Rehmat Sahiba V. Said Akbar Shah" (PLD 1961 W.P. Peshawar 6) and "Saif ur Rehman Vs. Ijaz and another" (2023 SCMR 2133). Whenever, a decree conclusively determines a right in favour of defendant, which could not be taken to a logical end without filing of an execution petition, the defendant would not be precluded to file an execution petition, but for that purpose, the right determined in favour of defendant should be conclusive and there must be an express executable decree in the judgment passed by the Court. For this purpose, careful scrutiny of Section 2(2) of the Civil Procedure Code, 1908 would be essential, as such the same is reproduced hereunder; "2(2) "decree" means the formal expression of an adjudication, which, so far as regards the Court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit and may be either preliminary or final. It shall be deemed to include the rejection of a plaint [the determination of any question within section 144, and an order, or rules 60, 98, 99, 101 or 103 of Order XXI] but shall not include- a) any adjudication from which an appeal lies as an appeal from an order, or b) any order of dismissal for default.
Explanation.---A decree is preliminary when further proceedings have to be taken before the suit can be completely disposed of. It is final when such adjudication completely disposes of the suit. It may be partly preliminary and partly final:"
6. The aforementioned definition of decree, provided in the Civil Procedure Code, 1908, reveals that the decree must conclusively determine the rights of the parties. When a suit is decided in favour of either party and the expression of the Court in the shape of judgment or order, conclusively determines some right in his favour, he may approach the Court for its execution, but the dismissal of a suit would not always be an expression of the Court, conclusively determining rights of the defendant and therefore, would not always amount to be an executable decree in favour of defendant, when the rights of defendant have not conclusively been determined in that very suit.
7. In the instant case, the plaintiff challenged partition mutation No. 4940 attested on 02.12.1990 and subsequent mutations No. 5146 dated 08.08.1992 and 5455 dated 13.12.1995, on the ground that he was kept in the dark, when partition mutation No. 4940 was attested. His suit was contested by the defendants/ respondents and it was finally determined by the courts that the mutation No. 4940 had rightly been attested. Such an expression of the Court, though conclusively determines the issue regarding attestation of mutation and as per mutation, certain rights may have accrued in favour of the respondents/ defendants, but other issues that how much land was transferred to respondents, how much land was in their possession, what was kind of that land, where it had been located and what boundaries were set at the time of attestation of mutation etc., required determination of the Court and without such determination, the defendant could not be given his actual share, which fell in his ownership pursuant to partition mutation. Moreover, it cannot be determined from the available record that when the cause of action accrued to him and whether he was dispossessed after attestation of partition mutation or the possession had never been handed over to him despite attestation of mutation. The decree passed in the suit can only considered a decree for declaration to the extent of partition mutation, but the consequential reliefs have neither been sought nor determined or granted by the courts, therefore, such a decree would not be termed as an executable decree in favour of respondents/defendant. The respondents could have filed an execution petition, when the decree might have conclusively determined their rights, which is not the case here, therefore, the execution petition filed by the respondents was not maintainable.
8. This Court also cannot lose sight of the bar contained in Section 11 of the Civil Procedure Code, 1908 which precludes the parties to file fresh suit in respect of same subject matter. The situation here is, however, somewhat different. The respondents/defendants were though party to the suit and remained successful in getting a decision in their favour through dismissal of the suit, but the issues regarding dispossession of the respondents/ defendants or less possession than their entitlement, have never been directly or substantially in issue before the Courts, during former suit.
In view of the peculiar circumstances of the lis, the respondents who cannot be left in the lurch without having recourse to any remedy, and since the respondents were precluded from filing a counter suit under a false legal impression, regarding final conclusive determination of their rights at the end of trial, therefore, to meet the ends of justice, the respondents/defendants are given the liberty to approach appropriate forum/court for their desired relief, in accordance with law, within a period of two month from the date of announcement of this judgment, if so advised, and in case such proceeding is initiated by the respondents/ defendants within the stipulated period, then the forum/ court concerned shall proceed with the same and they shall not be non-suited merely on the grounds of res-judicata or limitation.
9. This writ petition stands disposed of in the above terms.