Anwaar Hussain, J. The present civil revision lays challenge to the decision dated 24.06.2003 passed by the learned executing court accepting objection petition filed by present respondents No. 47 to 51 (hereinafter "the contesting respondents"), in execution petition filed by predecessor-in-interest of the present petitioners, namely, Bakhsha (hereinafter "the petitioners") for execution of pre-emption decree dated 22.01.1985 (hereinafter "the pre-emption Decree") passed in favour of the petitioners in the suit instituted by the petitioners, pre-empting sale made by one Sohrab (hereinafter "the vendor") in favour of Qadir Bakhsh and Faiz Muhammad (hereinafter "the vendees') and it was held in the impugned decision that pre-emption decree was not executable. The judgment dated 24.06.2003 was upheld in appeal vide judgement dated 24.11.2005. Both the findings have been impugned through the present civil revision.
2. The undisputed facts, necessary for deciding this civil revision, lie in a very narro w yet complicated compass and are required to be succinctly stated at first. As a prelude, it is stated that the petitioners, on 14.02.1970, brought a suit for pre-emption against the vendees, who on 23.02.1969, had purchased the property measuring 196 kanals and 19 marlas (hereinafter "the suit property "), from the vendor and managed to obtain the pre-emption decree where after the execution of the same was sought by filing execution petition, howe ver, the decree was satisfied to the extent of 108 kanals and 17 marlas only and the execution petition in respect of the remaining land could not be effected. The remaining land measuring 88 kanals and 2 marlas forming part of the total suit property is the bone of contention in this post decretal round of litigation inter se the petitioners and the contesting respondents. The execution of this portion of the suit property could not be carried out on the ground that land measuring 88 kanals and 2 marlas did not lawfully belong to the vendor and hence, the petitioners, as decree holders, were not entitled to get the warrants of possession issued in their favour . In fact, prior to partition of the Sub-Continent, the said piece of land was owned by local non-evacuees (Muslim owners) and had been mortgaged with the Hindu evacuees (land measuring 88 kanals and 2 marlas forming part of the suit property is herei nafter referred "the mortgaged property "), therefore, the same had been wrongly mutated in favour of the Central Government as it involved merely an interest of evacuees in the said property to the extent of mortgage. As a flashback, it is stated that after the partition of Sub-Continent, the suit property was mutated in favour of the Central Government and had been allotted to one Hakim Mehboob Ali Khan (hereinafter "the first allottee '), without considering the fact that the same was a mortgaged property owned by the predecessor-in-interest of the contesting respondents. The first allottee sold the suit property to the vendor and thereafter the later sold the same to the vendees. During the pendency of the execution petition of the decree passed in pre-emption suit, the original owners including Noor Muhammad being mortgagors filed an objection petition, who was not party to the main lis (pre-emption suit), on the ground that out of the suit property , the mortgaged property could not have been lawfully sold as the title of the vendor at the time of sale to the extent of mortgaged property was defective, however , the said objection petition was dismissed on 07.05.1985 against which said Noor Muhammad filed an appeal which was also dismissed on 14.01.1987. The said Noor Muhammad also filed a suit for declaration that the mortgaged property could not have been sold but the suit was dismissed as withdrawn on the ground that since the grievance has been redressed by the revenue department, proceeding with the suit was of no use. When the petitioners through second round of execution proceedings, prayed for execution of the pre-emption decree to extent of the mortgaged property , the second objection petition was filed by the contesting respondents in the year 1993, having purchased the mortgaged property from the original owners, namely , Noor Muhammad, after redemption of the mortgaged property and by raising the plea that the mortgaged property could not be the subject matter of the initial sale and subsequent pre-emption suit, more particularly when it has been redeemed.
3. Learned counsel for the petitioners submits that second objection petition is not maintainable on the ground that it was on the same point that part of the suit property had been mortgaged and was finally redeemed as the contesting respondents stepped into the shoes of Noor Muhammad whose objection petition on the same point had already been dismissed and attained finality. Therefore, the second objection petition is not maintainable as the order of learned Additional District Judg e upholding the order of dismissal of the first objection petition by the executing court was never challenged further by said Noor Muhammad, hence, the learned executing court had no jurisdiction to allow the second objection petition. Argues that in-fact, the second objection petition could not have even been entertained on the basis of doctrine of res judicata . The next challenge is thrown on the ground that the fact of the dismissal of the suit filed by the predecessor-in-interest of the contesting respondent, which was withdrawn has also not been taken into account by the learned executing court. Further contends that the second objection petition was time barred having been filed after 8 years of the pre-emption decree passed in favour of the petitioners and places reliance on "Hoshiar Ali v. Ghulam Sabir" (1993 CLC 2476 ) in this regard. Refers case titled "Sardar Ahmad Yar Khan Jogezai and 2 others v. Province of Balochistan through Secretary C&W Department" ( 2002 SCMR 122 ) to conclude that executing court cannot go beyond the decree.
4. Conversely , learned counsel for the contesting respondents submit that the property was mortgaged by father of one Niazi, namely , Bhaga and it was wrongly transferred to the Central Government, vide mutation No.5105 dated 03.08.1965, for which said Niazi filed appeal that was dismissed on 26.09.1966 against which review was filed that was allowed and order dated 26.09.1966 was set aside vide order dated 29.04.1967 by the Additional Commissioner (Revenue), Multan Divisio n, Multan Camp D.G. Khan. Adds that the property was redeemed on 15.12.1970 against which the vendees filed revision petition that was dismissed on 22.01.1976. Hence, the same attained finality . Adds that the vendees also instituted a suit for declaration (Exh.A9) which was decreed on 11.06.1983 against which predecessor-in -interest of the contesting respondents (namely Niazi) filed an appeal in which the predecessor-in interest of the petitioners, namely , Bakhsha filed applicati on under Order I Rule 10, Code of Civil Procedure, 1908, (hereinafter "CPC "), however , on 10.12.1984, the appeal of the predecessor-in-interest of the contesting respondents was accepted to the effect that the suit for declaration filed by the vendees was withdrawn and said withdrawal has attaine d finality as neither any appeal against the withdrawal of the suit nor any independent proceedings in this regard were initiated by predecessor-in-interest of the petitioners and therefore, now the petitioners, being a substitute of the vendees in a pre-emption case cann ot be on better footing than the said vendees. Further contends that vendor of the suit property was not the owner to the extent of mortgaged property and hence, no question of pre emption arises. Also contends that before passing of pre-emption decree on 22.01.1985, the redemption in favour of the predecessor-in-interest of the contesting respondents was implemented in the revenue record, on 19.01.1985, vide mutation No.2150, hence, in this way, the way forward for the pre-emptors was locked to get any execution to the extent of the mortgaged property as the decree to that extent had reached a dead end of in-executability; that doctrine of res judicata is only applicable on suits and not on execution petitions and the petitioners are estopped by their own conduct inasmuch as they purchased part of the mortgaged property , through various mutations brought on record, clearly acknowledging the rightful ownership of Niazi and his successors-in-interest, which includes the contesting respondents; and the second execution petition was time barred. Finally , subm its that there are concurrent findings of fact, which are not open to interference in the revisional jurisdiction.
5. In rebuttal, learned counsel for the petitioners submits that his right of pre-emption was clearly available at the time of purchase during pendency as well as at the time of decree of the suit since pre-emption suit was filed on 14.02.1970 whereas the redemption was done on 15.10.1970, hence, the suit was instituted well before the redemption took place. The per-emption proceedings culminated into decree on 22.01.1985 and predecessor-in- interest of the contesting respondents were well aware of the proceedings in the pre-emption suit, however , they never joined the proceedings by filing any application under Order I Rule 10, CPC. Moreover , in view of their knowledge about the pre-emption suit, they have not challenged the decree dated 22.01.1985 and only through objection petition in the execution proceedings, they intend to circumvent the execution of the pre-emption decree which holds the field. Concludes that the courts below have travelled beyond the decree which has never been challenged by the respondents, therefore, the impugned decisions are against the law .
6. Respondents No. 1(a), 1 (b), 2, 3, 8 to 34, 35(a) to 35 (c), 36, 37, 38 (a) to 38 (f), 39 to 44, 52 to 55 have already been proceeded against ex parte vide order dated 24.01.2012 and despite repeated calls today , none has tendered appearance on behalf of respondents No. 45, 46, 57, 58, therefore, they are also proceeded against ex parte .
7. Arguments heard and record perused with the able assistance of the learned counsel for the parties.
8. While multi-facet attacks have been laid to the concurrent findings of the courts below , in nutshell answer to the following legal questions can resolve the issue: i. Whether a pre-emption decree in favour of the petitioners could be executed when their vendor was not owner of the mortgaged property on account of defective vesting of the said property in Central Government and the subsequent allotment thereof? ii. Whether the redemption of mortgaged property forming part of a pre-emption decree puts a clog on the executability of the decree passed in the pre-emption suit particularly when the same was passed subsequent to the redemption? iii. Whether the pre-emption decree, in favour of the petitioners, is executable to the extent of the mortgaged property more particularly when the petitioners themselves have started purchasing part of the same after the redemption was ef fected in the revenue record without challenging the order of the redemption?
9. The above referred questions, though appear to be simple but are by no means easy of solution. Admittedly , the mortgaged property was owned by non-evacuee local Muslim owners, which was mortgaged to non-Muslim evacuees before independence and hence, was wrongly treated as evacuee property and allotted thereafter and further sold by the allottee to the vendor who, in turn, sold it to vendees that triggered the pre-emption proceedings.
Identical question fell for adjudication before the august Supreme Court in case reported as "M.A. Hafeez Khan and 9 others vs Riaz Ahmed Mehra and 3 others" (1983 SCMR 803), wherein the august Supreme Court held as under: "Anyway, the first two contentions have been rightly resolved by a reference the principle enunciated by this court in Muhammad khan's case wherein in respect of evacuee land mortgage with possession to locals it was held that the interest of the mortgagee locals could be acquired by the government under section 4 of the Displaced Persons (Land Settlement) Act, 1958, that notwithstanding the words "free form all encumbrances" in that section the mortgagee locals were entitled to retain possession of land until the mortgage was redeemed and it was not necessary for the mortgage in order to safeguard his rights to have sought a declaration under section 22 of the Act, XII of 1957. Relying on the rule laid down in Muhammad Khan's case, another division bench of the Lahore High Court, in Writ Petition No. 458/R-of 1976, decided 05-07 1977 in respect of an urban property also situate in the City of Lahore, had held that only the evacuee interest of the evacuee mortgagee had vested in the Custodian which had come to the compensation pool and was available to the settlement authorities for disposals, that anything in excess of it did not vest on the Custodian or constitute the compensation pool or could be transferred by the Settlement Authorities and that the non-evacuee mortgagor's right to redeem the mortgage "did not ever come to be extinguished". As according to the finding of the Deputy Custodian recorded on 24-10-1960, the mortgage debt had stood fully discharged, Riaz Ahmed was entitled to the restoration of the property by way of redemption. That being so, the transfers made in favour of the petitioners could not stand." (Emphasis supplied )
The dicta laid down in M.A. Hafeez Khan case supra was approved and upheld by another reported judgment of the august Supreme Court in case titled "Rashida Begum and others v. Saadi Baig and others (2003 SCMR 1456 .) Thus, it has become settled position of law that only the interest to the extent of evacuees could have vested in the Custodian Authorities and the right of the predecessor-in-interest of the contesting respondents to redeem the mortgaged property always remained in field and could not have been taken away or extinguished.
10. Having examined so, it is imperative to note that where a pre emptor brings a suit for pre-emption, he must ex- necessitate accept the title of the vendor as it is and it is actually on that basis that he claims his superior right of purchase. Decision of a Division Bench of Haryana High Court in "Dugar Mal v. Gobind Saroop" (AIR 1950 EP 74) is referred in this regard. Such a pre-emptor can neither object to the defect in title of the said vendor nor claim a better title than that of his vendor. In the instant case, the title of vendor was defective inasmuch as he purchased the suit property from one Hakim Mehboob Ali Khan to whom the mortgaged property was allotted by the Central Government on the wrong premise that the mortgaged property was evacuee property, which in fact was not and later on proved to be so when the redemption was allowed. In this manner, title of predecessor-in- interest of the vendor of the sale in respect of which the petitioners exercised their right of pre-emption was defective from day one and it is settled principle of law that no one can transfer a better title than he himself has.
Needless to mention that it is fundamental principle relating to the exercise of the preemptive right that it cannot be enforced upon a sale which is invalid and can take no effect, but that it can be enforced when, under a valid sale, and according to the rules of law, the owner has been divested of the proprietary title and the purchaser invested with it. A valid and perfected sale is a condition precedent for the exercise of the pre-emptive right and in the absence of the same, consequences would follow. In this very case, supposing there was no suit for pre- emption instituted, the vendees would have no title under the sale to enable them to recover possession more particularly when the redemption was allowed by the court of competent jurisdiction in favour of predecessor-in- interest of the contesting respondents. The right of pre-emption being only a right of substitution, the successful pre emptor's title is necessarily the same as that of the vendee, and if the vendee took nothing under the sale, the pre-emptor can take nothing either; and it follows that if the vendee could not get the property or part of it pre- empted, the pre-emptor could not do so either, because in both cases the question would necessarily arise whether the sale was valid in the sense of transferring the ownership. The above discussion clearly indicates that the mortgaged property was wrongly acquired and allotted to the displaced claimant, namely, Hakim Mehboob Ali Khan since the same was mortgaged and as per settled principle of law, only the right and/or interest of the evacuee could be transferred to Custodian Authorities and/or the Central Government and the right of non- evacuee mortgagor always remained in existence and could not have been extinguished. It is settled principle of law that 'once a mortgage is always a mortgage and nothing but a mortgage' and the Muslim owners sought redemption of their property from the court of Collector, Dera Ghazi Khan, in accordance with provisions of West Pakistan Redemption & Restitution of Mortgaged Lands Act, 1964, which was allowed and the mortgaged property forming part of the suit property was redeemed and reverted to the original owners/mortgagers vide order of Additional Commissioner (Revenue) dated 15.12.1970 against which the vendees/judgment debtors filed revision petition that was dismissed on 22.01.1976 by the Member Board of Revenue and in this manner pursuant to the redemption orders qua the mortgaged property, mutation in the name of the original owners/mortgagers was effected vide mutation No.2150 dated 19.01.1985 when the pre-emption decree was not passed yet. It is also settled legal proposition that if initial action is not in consonance with law, all subsequent and consequential proceedings would fall through for the reason that illegality strikes at the root of the order. In such a fact-situation, the legal maxim "sublato fundamento cadit opus", meaning thereby that foundation being removed, structure/work falls, comes into play and applies to the present case on all scores. Even otherwise, the vendees, whom the petitioners substituted under the pre-emption, challenged the redemption orders by instituting a regular civil suit, which was decreed by the trial court, however, the said decree was assailed by way of filing of appeal by the predecessor-in interest of the contesting respondents before the learned District Judge, D.G. Khan in which the petitioners/decree holders filed application for being impleaded as party, but the appeal was allowed by the learned District Judge, D.G. Khan to the effect that the suit of the vendees of the petition ers was withdrawn and consequently , application of the petitioners under Order I, Rule 10, CPC was dismissed on 10.12.1984. Admittedly , the petitioners being the decree holders did not further agitate the matter at any forum by way of appeal, revision or review and in this manner too, the redemption of mortgaged property attained finality regarding which the execution petition was not even maintainable. As a natural corollary , the mortgaged property having been rightly redeemed, was taken out of the sale in favour of vendees before the pre-emption suit was even decreed in favour of petitioners. Since the right of pre-emption is a mere right of substitution for one of the parties to the transaction, the defect in the title of the vendor or the vendee will be transferred to the pre-emptor along with the subject of sale, the necessary consequence of which would be that the pre-emptor 's right can be defeated in the same manner in which vendee' s right can be defeated by a person having locus standi to challenge the same. Law laid down by the Hon'ble Supreme Court in case "Haji Rustam Khan (through legal heirs) v. Dilbar Khan and others" (PLD 1983 SC 212 ) is referred in this regard.
11. It has been argued with much vehemence that the impugned judgments passed by the courts below in accepting the objections of the contesting respondents amounts to navigating beyond the decree which flies in the face of the settled principle that the executing court cannot go behind the decree which the courts below have ventured to in the instant case. It is observed that there is no cavil to the proposition that the executing court cannot go beyond the decree and it is obligated to adhere to the decree as it comes before it for execution but this rule is not an absolute and invariable rule of law rather the same is subject to certain exceptions as expounded by the superior courts. The august Supreme Court in case titled "Islamic Republic of Pakistan v.
Muhammad Saeed" (PLD 1961 SC 192) held that even in execution proceedings questions relating to the executability of an order or decree can be raised and it is open to the party against whom it is sought to be executed to show that it is null and void or had been made without jurisdiction or that it is incapable of execution.
The august Supreme Court in case titled "Habib Bank Limited v. Mst. Parveen Qasim Jan and others" (2014 SCMR 322), analysed the catena of judgments and deducted the exceptions to the general principle that the executing court cannot go behind the decree by holding as under: "From a perusal of the above judgments, it becomes clear that in the proceedings of the execution of decree, the executing court while exercising jurisdiction under section 47, C.P.C. can question the executability of a decree if it is satisfied that the decree is a nullity in the eyes of law or it has been passed by a court having no jurisdiction or the non-execution of the decree would not infringe the legal rights of the decree holder or the decree has been passed in violation of any provision of law , only then the executing court can refuse to execute the decree."
Thus, it becomes too obvious to be stressed that the issue of the in executability could have been validly raised in the execution proceedings as the pre-emption decree to the extent of so much of the land as fell in the ownership of predecessor-in-interest of the contesting respondents could not have been passed and was null and void to that extent as the same never fell in the ownership of the vendees. Concomitantly, the execution of the decree passed in a pre-emption suit has been rightly refused to the extent of the land redeemed by the contesting respondents and not in the ownership of the vendees to which right of pre-emption could have been exercised.
12. The argument that after dismissal of the first objection by the predecessor-in-interest of the contesting respondents (original owners) the second objection petition is barred under doctrine of res judicata is completely misconceived inasmuch as the first objection petition was not dismissed on merits of the case and simply on the ground that the original owners failed to become party of the pre-emption suit. Similarly, argument of learned counsel for the petitioners that predecessor-in interest of the contesting respondents after withdrawal of his suit relinquished his rights in the mortgaged property is also of no help to the petitioners as the said withdrawal was on account of the fact that order of the redemption of mortgaged property in their favour was given effect vide mutation No.2150 dated 19.01.1985 before passing of the pre emption decree and in this way, keeping the suit pending was a fruitless exercise. In-fact , admittedly , the vendees/judgment debtors whom the petitioners have substituted after pre-emption decree laid challenge to the redemption order and remained unsuccessful.
13. The matter can be examined from another angle which addresses the third legal question formulated hereinabove. It is admitted feature of the case that one of the petitioners/decree holders namely, Sultan Mahmood son of Bakhsha (petitioner No.2) has purchased a part of the mortgaged property, during pendency of the objection petition, from respondents No.32 and 33, namely, Yousaf and Noor Muhammad, both sons of Imam Bakhsh, vide mutation dated 08.12.1999 brought on record as Exh. A-18, meaning thereby that the petitioner side admits the contesting respondents as the rightful owners and also exclusion of the mortgaged property from the suit property. Learned counsel for the petitioners could not deny this fact. Hence, by way of independent purchase from the few of the contesting respondents, the petitioners are estopped now to lay any claim on the same.
14. As a sequel to the above discussion, this Court finds no merit in this civil revision and the same is accordingly dismissed . Parties to bear their respective costs.