CH. MUHAMMAD IQBAL, J. Through this constitutional petition, the petitioner has challenged the validity of the order dated 11.05.2023 passed by the learned Civil Judge/Executing Court., Faisalabad who dismissed the objection petition of the petitioner and also assailed the judgment and decree dated 17.04.2024 passed by the learned Addl. District Judge, Faisalabad who dismissed the appeal of the petitioner.
2. Brief facts of the case are that respondent No.1/plaintiff filed a suit for possession through specific performance against the petitioner and respondents Nos.2 to 4/defendants in respect of Plot No.2076 measuring 03-Marlas (20X40) situated in Tipu Sultan Labour Colony Jaranwala Road Khurianwala, District Faisalabad. Respondent No.2/Muhammad Jameel allottee of the suit plot sold the property to respondent No.3/defendant No.4 through agreement to sell dated 09.03.2020 after receiving total consideration. Respondent No.1 purchased the property from respondent No.3 through agreement to sell dated 13.04.2021 against consideration of Rs.3,00,000/-. Respondent No.1 time and again requested the respondents to perform their part of contract but they refused, hence the suit. Petitioner/defendant No.2 filed contesting written statement whereas respondents Nos.2 and 3/defendants Nos.3 and 4 filed conceding written statement. Respondent No.4/ defendant No.1 was proceeded against ex-parte on 13.09.2021. As per divergent pleadings of the parties, issues were framed and evidence was recorded. The trial court vide judgment and decree dated 21.03.2022 decreed the suit of respondent No.1.
Respondent No.1 filed an execution petition in which the petitioner filed an objection petition contending therein that the decree is not executable. The executing court after taking reply of respondent No.1 dismissed the objection petition of the petitioner vide order dated 11.05.2023. The said order was assailed by the petitioner through an appeal which was also dismissed by the appellate court vide judgment and decree dated 17.04.2024. Hence, this writ petition.
3. Arguments heard. Record perused.
4. Admittedly, petitioner and respondents Nos.2 to 4 respondents Nos.2 to 4 was party in the main suit. Petitioner/defendant No.2 filed written statement and his right to produce evidence was closed on 12.02.2022. The judgment and decree dated 21.03.2022 passed by the learned Civil Judge was not challenged by the petitioner through an appeal, thus the same had attained the status of finality and had become past and closed transaction. Reliance is placed on the case cited as Pakistan International Airlines Corporation v. Aziz-ur-Rehman Chaudhary and another (2016 SCMR 14).
5. As far as objection petition filed by the petitioner in execution petition that the suit property is not transferable according to Labour Department Policy is concerned, suffice it to say that the petitioner did not challenge the vires of judgment and decree dated 21.03.2022 which are still intact and filing of instant objection petition by the petitioner is amounting to seeking review of judgment and decree regarding which the executing court has no jurisdiction to annul/set aside/modify the judgment and decree. It is settled law that the executing court cannot go behind the decree rather it is duty bound to execute the decree in letter and spirit as per dictum laid down by the Hon'ble Supreme Court of Pakistan in case titled as Syed Riaz Ahmad Shan and another v. Dayal Singh College Trust Society and another (1972 SCMR 237) as under: According to well-settled principles of law the executing Court cannot go behind the decree.
Therefore, to permit the petitioners to raise the objection will amount to asking the executing Court to go behind the decree which it cannot.
The Hon'ble Apex Court in another judgment titled as Muhammad Ali and others v. Ghulam Sarwar and others (1989 SCMR 640) observed that:- It is, however, submitted that the decree was wrongly drawn up by the Civil Court. But it is well- Settled principle that the executing Court cannot go behind the decree and has to execute it as it is unless the decree is patently a nullity which is not the case here. Reference, however, may be made to Brig. (Retd.) I Muhammad Aslam Khan v. The Azad Government of the State of Jammu and Kashmir (1983 CLC 1204) and Messrs Haji Ahmed and Co. v. Muhammad Siddique and others (PLD 1965 (W.P.) Kar. 293).
In another judgment cited as Mst. Naseem Akhtar and 4 others v. Shalimar General Insurance Company Limited and 2 others (199 SCMR 22), the August Court held as under:- In the execution proceedings, it was not open to the respondent No.1 to take up the plea which he had not taken before the learned trial Court during the course of the hearing of the suit which was ultimately decreed and the decree allowed to become final. In these circumstances, the respondent No.1 itself is responsible for the decree against it, even though its liability was limited. It is not open to the respondent No.1 judgment-debtor now to contend that its liability has not been correctly assessed or determined. If it were permissible, there will be no end or finality to the judgment and decree which had become final. Precedents noted and analysed above make quite clear that once a decree is passed it has to be executed in its terms and it is not open to the executing Court to go behind it and re-determine the liability of the parties. In this view of the matter, there is no option but to allow this appeal and hold that the learned Judge in the High Court fell in error in giving effect to the plea of the respondent No.1 which had not been raised before the learned trial Court which granted the decree to the appellants. It may also be noted that the decree has already been executed. There is no good ground in the circumstances to put the clock back. Therefore, the impugned order is set aside.
In another case title Irshad Masih and others v. Emmanuel Masih and others (2014 SCMR 1481), the August Court held that:- ....there is plethora of case-law on the legal point that the executing Court, under no circumstances can go beyond the decree ....This being the undisputed factual position in the present case, as rightly held by the High Court in its judgment dated 11-11-2002, the order of remand passed by the learned Additional District Judge Sahiwal dated 25-1-2001 was not sustainable in law, as the executing Court cannot go beyond the mandate of the said judgment and thus the present petitioners had no locus stanch to seek execution of either the judgments dated 20-1-1969, whereby their predecessor's suit was disposed of without grant of relief prayed for, or the other judgment of the Supreme Court dated 18-6-1995, dismissing their petition and confirming the judgment of the Lahore High Court dated 8-12-1993.
Rather, after the death of Mst. Margret in the year 1996, there was nothing in the said judgments which was executable at the request of the present petitioners. If any case-law is needed to fortify the view regarding limited jurisdiction of the executing Court, reference can be made to the following cases:-
(i) Muhammad Ali and others v. Ghulam Sarwar and others (1989 SCMR 640)
(ii) Mst. Naseem Akhtar v. Shalimar General Insurance Company Limited (1994 SCMR 22)
(iii) Province of Punjab through Secretary Industries v. Burewala Textile Mills Limited (2001 SCMR 396)
(iv) Tauqeer Ahmad Qureshi v. Additional District Judge, Lahore (PLD 2009 SC 760) which, respectively lays down as under:- In the case of Muhammad Ali (supra), the Court recognized that it was well-settled principle of law that unless the judgment and decree was patently a nullity, the executing Court could not go behind the decree and was bound to execute the same as it stands.
In the case of Mst. Naseem Akhtar (supra) it was held that it was an established principle of law that the Court in execution proceedings could not be allowed to embark on an inquiry to determine whether the Court passing the decree had the jurisdiction to do so. The Court emphasized that if such broad discretion was given to executing courts there could be no finality attached to any judgment and decree.
In the case of Province of Punjab v. Burewla (supra) this Court reiterated the above principle by stating that the Executing Court could not travel behind the terms of the decree, nor could it alter the terms or examine its correctness or proprietary.
In the last case of Tauqeer Ahmed (supra), apex Court a alarmed that there could be no cavil with the proposition that the executing Court could not go behind the decree and would only be allowed to do so to examine whether the decree or part thereof was executable or in-executable. It was held that only in such a situation was the Court empowered to refuse execution but that only to the extent of the in-executable part of the decree and was bound to proceed with the execution for the rest.
14. Having discussed the above two legal points involved in this review petition, when we revert to the facts of the case we find that not once, but twice the litigation in respect of the disputed land granted to deceased Arora before his death in the year 1933 had gone up to the level of apex Court and was finally decided in terms of the two judgments of the apex Court dated 10-12-1991 and 18- 6-1995. In such circumstances, the order of this Court dated 22-10-2009, regarding which now review has been sought is nothing but a reiteration of the conclusions in the earlier two rounds of litigation. Thus, any request for review in substance will not be a simplicitor request for review of such order, but for the earlier judgments too, which have been squarely made basis by the Court in its order dated 22-10-2009, as the only ground for dismissal of the appeal. It is important to reiterate that the Court dealing with a review petition and re-examining the order passed during execution proceedings, is constrained not only by the limited scope of exercise of jurisdiction of review, but also by the settled principle of law that the executing court cannot go behind the decree. "
Reliance is also placed on the judgment of the Apex Court titled as Muhammad Tariq Khan v.
Khawaja Muhammad Jawad Asami and others (2007 SCMR 818). And lastly the Islamabad High Court in a judgment titled as Allied Bank Limited v. Messrs Fazal Vegetable Ghee Mills and others (2019 CLD 441). has held that:- "14. Following the principles laid down in the Ghulam Muhammad case Supra, the august Supreme Court has consistently held that an executing Court cannot extend its jurisdiction to go behind the decree and question its correctness. Reference may be made to the cases "Syed Riaz Ahmad Shah and another v. Dayal Singh College Trust Society and another" 11972 SCMR 237], "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."
6. Learned counsel for the petitioner has not pointed out any illegality or material irregularity in the impugned order and judgment passed by the courts below and has also not identified any jurisdictional defect. The concurrent findings of facts are against the petitioner which do not call for any interference by this Court in absence of any illegality or any other error of jurisdiction. Reliance is placed on the case titled as Zulfiqar Ali v. Judge, Family Court and 7 others (2007 MLD 1710).
7. In nutshell, as the petitioner did not challenge the judgment and decree dated 21.03.2022 despite the fact that he contested the suit and now the execution petition is pending and the executing Court cannot go behind the decree as such this writ petition is dismissed in limine being devoid of any force.