SHAKIL AHMAD, J.: Instant petition essentially requires to be decided along with connected Civil Revision Nos. 479 & 480 of 2020 for the reason that facts forming background for the filing of all three petitions under section 115 of Code of Civil Procedure, 1908 ("CPC") are same besides the same are to impugn order dated 20.07.2019 and judgment dated 04.09.2020 passed by learned Civil Judge 1st Class, Hasilpur and learned Additional District Judge, Hasilpur, respectively, whereby objection petition filed by Muhammad Mushtaq (hereinafter referred to as respondent No.1) was allowed, and appeals filed by Ghulam Mustafa, Muhammad Ashraf and Muhammad Amin (hereinafter Muhammad Ashraf and Muhammad Amin would be referred to as petitioners) challenging order dated 20.07.2019 were dismissed. Similarly, Crl. Org. No.11-W of 2021 in Civil Revision No.390 of 2020 filed by petitioner Ghulam Mustafa is also being decided through this single judgment.
2. Necessary facts, relevant for the decision of above hinted petitions, in brief, are that Mst. Suraiya Bibi instituted suit seeking declaration to the effect that she being legal heir of Ali Muhammad was owner in possession to the extent of her share over land measuring 12-Kanal falling in Khewat No.40, Khatooni Nos.241 to 246 and had been receiving share of produce from her brothers. As per contents of plaint, Mst. Suraiya Bibi was minor when her brothers got sanctioned inheritance mutation No.169 dated 14.11.1958 fraudulently, thereby depriving her and her mother of their legal shares from the legacy of her father, hence inheritance mutation No.169 dated 14.11.1958 and subsequent mutations No.407 dated 09.05.1990, 395 dated 27.02.1989 and 403 dated 10.04.1990 were ineffective upon her rights and were liable to be corrected. Respondent No.1 and one Faqir Muhammad appeared and contested the suit by way of filing separate written statements. In view of divergent pleadings of the parties, learned trial court farmed as many as eight issues including that of relief. Both the parties led their respective oral as well as documentary evidence and the learned trial court finally proceeded to decree the suit vide judgment & decree dated 05.05.2015.
Being dissatisfied, respondent No.1 preferred appeal before learned Additional District Judge.
During pendency of the appeal respondent No.1 appeared before the learned Additional District Judge and got recorded his statement on 28.10.2016 to the effect that he accepts the right of his mother Mst. Rehmat Bibi and sister Mst. Suraiya Bibi and thus raised no objection if they were given their due share in the legacy of his father. He further agreed to transfer land measuring 05-K & 01- Marla to Mst. Suraiya Bibi through gift. Mst. Suraiya Bibi accepted the offer of respondent No.1 and stated that she had no objection in case the original inheritance mutation No.169 dated 14.11.1989 regarding legacy of her father and mutations No.407 dated 09.05.1990, 315 dated 27.02.1989 and 403 dated 10.04.1990 were directed to remain intact to the extent of 1/2 share. Learned Additional District Judge in view of the statements of respondent No.1 and Mst. Suraiya Bibi, proceeded to dispose of the appeal vide order dated 28.10.2016 with the observation that parties would be bound by their statements. Of late, when respondent No.1 did not fulfil his undertaking, Mst. Suraiya Bibi filed contempt petition before learned Additional District Judge with the assertion that neither respondent No.1 was complying with his statement recorded on 28.10.2016 nor the concerned ADLR was sanctioning mutation in view of the decree passed in her favour. The said petition was contested by respondent No.1 and Faqir Muhammad by way of filing written reply. Learned Additional District Judge after hearing learned counsel for the parties proceeded to dismiss the petition being not maintainable, vide order dated 08.05.2017. Thereafter, Mst. Suraiya Bibi approached ADLR, Record Center, Hasilpur who sanctioned mutation No.799 dated 14.10.2017 in her favour. Being dissatisfied, petitioners Muhammad Ashraf and Muhammad Ameen preferred appeal under section 161 of the Land Revenue Act, 1967 before Assistant Commissioner/Collector, Sub- division, Hasilpur. The appeal was allowed vide order dated 29.12.2017 with the direction to ADLR, Hasilpur to cancel mutation No.799 dated 14.10.2017 as well as mutations No.169 dated 14.11.1958 and subsequent mutations No.395 dated 27.02.1989, 403 dated 10.04.1990 and 407 dated 09.05.1990 in compliance of decree dated 05.05.2015 with the further direction that petitioners Muhammad Ashraf & Muhammad Ameen and Mst. Suraiya Bibi being legal heirs of Ali Muhammad (deceased) be given their legal shares out of land measuring 132-Kanal. In backdrop of these facts, respondent No.1 filed objection petition before learned Civil Judge 1st Class, Hasilpur with the assertion that ADLR, Hasilpur & official of Service Center, in view of decree dated 05.05.2015 were bound to transfer the land to Mst. Suraiya Bibi only to the extent of her legal share i.e. 10-Kanal & 02-Marla, however, while setting aside basic inheritance mutation No.169 dated 14.11.1958 and subsequent mutations (whereby Muhammad Ashraf sold out his entire share of 22-Kanal to him and Muhammad Amin initially transferred 20-Kanal land in favour of Faqir Muhammad and that land was also purchased by him from said Faqir Muhammad through mutation No.403 dated 17.03.1990 and subsequently remaining 02-Kanal land was also purchased by him from Muhammad Amin and in this way he purchased total land from the share of Muhammad Amin and Muhammad Ashraf which was transferred to them in pursuance of inheritance mutation No.169), revenue officials entered and sanctioned mutation No.817 dated 20.01.2018, in connivance with Muhammad Ashraf and Muhammad Amin wrongly cancelled all the mutations whereby his property was returned to his brothers namely Muhammad Ashraf and Muhammad Amin depriving him of his vested and valuable rights particularly in the backdrop of fact that both Muhammad Amin and Muhammad Ashraf or even Faqir Muhammad did not ever challenge correctness and validity of those mutations through which entire land of his brothers namely Muhammad Ashraf and Muhammad Amin was transferred to him and more particularly where suit was decreed only to the extent of the claim of Suraiya Bibi. It was further averred in the objection petition that after passing of mutation, Muhammad Ashraf transferred land measuring 04-Kanal & 06-Marla through mutation No.837 dated 18.09.2018 in favour of Ghulam Mustafa and Muhammad Amin transferred land measuring 20-Kanal & 06-Marla through mutation No.831 dated 17.08.2018 in favour of Ghulam Mustafa. As per respondent No.1, revenue authorities having been connived with Muhammad Ashraf and Muhammad Amin proceeded to implement decree against its spirit and in consequence whereof land owned by respondent No.1 was practically returned to Muhammad Ashraf and Muhammad Amin who with the mala fide intentions further transferred of some portion of land to Ghulam Mustafa against the facts and record as both Ashraf and Amin had already transferred their land through earlier mutations to respondent No.1 and they have no concern whatsoever with the said property and they never ever challenged correctness and authenticity of earlier mutations whereby they transferred their land to respondent No.1 and Faqir Muhammad. Objection petition was contested by Ghulam Mustafa, Muhammad Ashraf and Muhammad Ameen by way of filing separate written replies. Learned Civil Judge 1st Class, Hasilpur after hearing learned counsel for the parties proceeded to allow objection petition vide order dated in the following terms: - "......The mutation No.831 is to be canceled in toto, whereas mutation No.837 is to be cancelled only to the extent of share of respondent No.3 (4-K 6-M) and allowed to remain intact to the extent of share of Mst. Suraiya (6-K 15-M) therein. Both the mutations are cancelled accordingly. The respondent No.5 may avail his legal remedy for the return of sale price alongwith damages, if so advised, against the respondents No.3 & 4.
14. Instant objection petition is hereby allowed in above terms. The revenue authorities concerned after deducting excess property from the petitioner shall restore the remaining property to him by restoring his aforesaid mutations (to the extent of remaining property) by way of Sehat Indraj accordingly..."
Petitioners Ghulam Mustafa, Muhammad Amin and Muhammad Ashraf being dissatisfied by order dated 20.07.2019 preferred three separate appeals before learned Additional District Judge, however, the same were dismissed vide judgment dated 04.09.2020, hence above hinted revision petitions. Ghulam Mustafa, one of the petitioners filed Criminal Original No.11-W of 2021 in C.R No.390 of 2020 stating therein that respondent No.1 and others in connivance with revenue officials forcibly dispossessed him, as such violated status quo order dated 26.10.2020 passed by this Court in C.R No.390 of 2020.
3. Heard learned counsel for the parties. Record perused.
4. Learned counsel for the petitioners have laid much stress on the point that objection petition filed by respondent No.1 was not maintainable at all as no execution petition was pending before the executing court. According to them, where decree was implemented in the revenue record and the decree was satisfied to the extent of decree holder and she did not move any application for the execution of decree, petition filed by respondent No.1 was misconceived and in turn not maintainable. According to them, court of first instance not only wrongly entertained the petition but also committed jurisdictional error while allowing the same and learned appellate court proceeded to ditto the findings of learned trial court without adverting to the vital and legal aspect of the matter. This stance of petitioners has been opposed by learned counsel for respondent No.1.
According to him, all questions relating to an execution can be resolved and decided only by the executing court in terms of section 47 of CPC. The moot point that needs to be decided initially is that whether a party to the suit which has finally been decreed can move any application before the court for resolution of a question arising out of execution of the decree where no execution petition was filed by the decree holder. Before dilating upon the point in issue, it seems appropriate to reproduce hereunder section 47 of CPC: - "47. Questions to be determined by the Court executing decree. -
(1) All questions arising between the parties to the suit in which the decree was passed, or their representatives, and relating to the execution, discharge or satisfaction of the decree, shall be determined by the Court executing the decree and not by a separate suit.
(2) The Court may, subject to any objection as to limitation or jurisdiction, treat a proceeding under the section as a suit or a suit as a proceeding and may, if necessary, order payment of any additional court-fees.
(3) Where a question arises as to whether any person is or is not the representative of a party, such question shall, for the purposes of this section, be determined by the Court."
(emphasis supplied)
In view of the provisions of section 47 of CPC all questions arising between the parties to the suit after passing of the decree relating to execution, discharge or satisfaction of decree shall be determined by the court executing the decree and not by a separate suit. Two essential prerequisites are to be satisfied so as to avail of the remedy provided under section 47 of CPC.
Firstly, the question/controversy should relate to either execution, discharge or satisfaction of the decree and secondly, the conflict/question should have been arisen between the parties to the suit in which decree was passed. Provisions of section 47 of CPC enjoin that all questions relating to execution shall be resolved by the executing court. So, all questions that arise between parties or their representatives having nexus with the execution, discharge or satisfaction of the decree must be decided under section 47 of CPC. The words "all questions arising" should be read to denote as "all questions directly arising". These words only mean that the questions must be such that they relate to or affect the rights of the parties to the suit during the course of execution of decree. The expression "relating to execution" has not been defined elsewhere in the Code of Civil Procedure probably with the intention of leaving it flexible, vividly with the purpose to include any question that either hinders or affects the rights of any of the parties and it would even apply to a dispute arising in relation to execution of a decree after it had been executed as it would be a dispute relating to the execution of a decree before it had been executed. The question as to deficient or flawed execution essentially is one relating to the execution of a decree, therefore, such question must also be answered and resolved by the executing court as per the provisions of section 47 of CPC. Similarly, the words "the court executing the decree" in no way restrict the applicability of section 47 of CPC only to the proceedings initiated by the decree holder. This section would also be applicable to the proceedings initiated by the judgment debtor in case of flawed execution of decree. Therefore, filing of an application by one of the judgment debtors even in the absence of any execution petition before the court could not be objected to on the ground that no execution petition was filed by the judgment debtor for the execution of the decree particularly when the right of judgment debtor has been affected by the wrong implementation of decree. Similar sort of objection was taken up, dealt with and resolved by the Supreme Court of Pakistan in case Riaz Hussain and others v. Muhammad Akbar and others (2003 SCM R 181) in the following terms: - "6. The only question for decision in this appeal is whether an objection petition filed by a judgment-debtor under section 47, C.P.C. is maintainable when there exists no application for execution of the decree. The question was answered in the affirmative in the impugned judgment mainly on the strength of the judgment of the Supreme Court of India reported as M.P. Shreevastava v. Veena (AIR 1967 SC 1193) wherein an identical controversy was resolved in favour of the judgment-debtor with the following observations:- "The principle of section 47, C.P.C. is that all questions relating to execution, discharge or satisfaction of a decree and arising between the parties to the suit in which the decree is passed, shall be determined in the execution proceeding, and not by a separate suit; it follows as a corollary that a question relating to execution, discharge or satisfaction of a decree may be raised by the decree holder or by the judgment-debtor in the execution department and that pendency of an application for execution by the decree-holder is not a condition of its exercise. "
7. The above view is unexceptionable and while agreeing with the rationale and reasoning thereof we would like to add that the scope of section 47, C.P.C. is very wide inasmuch as the objection petition tiled thereunder by a judgment-debtor is akin to a suit and for that very reason it contains an in-built provision empowering the Court to treat the objection petition as a suit subject to certain conditions. The view tends to advance the object of the legislature and provide an opportunity to the judgment-debtor to make an objection petition even if the decree-holder withholds the execution petition and gets the decree satisfied through some other mode. A contrary view would certainly limit the scope of section 47, C.P.C. and thus militate against the object and intention of the Legislature. It will also take the judgment-debtor to a point where he is left with no remedy and forum of e redressal of his grievance as has happened in the present case. The respondent has been left high and dry due to non-filing of an execution petition by the decree-holder. The right to file an objection petition conferred on the judgment-debtor by the Code of Civil Procedure is a vested right which cannot be denied by blowing the expression "desires", used in Order XXI, rule 10, C.P.C. out of proportion or raising a hyper-technical ground that non-filing of an execution petition is a bar to the maintainability of an objection petition. Lastly, the view is in line with the well-known principle of interpretation of statutes that a statute should be interpreted in a manner which suppresses the mischief and advance the remedy. It is also supported by the observations made in Manager, Jammu and Kashmir State Property v. Khuda Yar (PLD 1975 SC 678) that mere technicalities unless offering any insurmountable hurdle should not be allowed to defeat the ends of justice and the logic of words should yield to the logic of realities.
8. Adverting to the leave granting order we feel no hesitation in holding that pendency of an application for execution of the decree is not condition precedent for filing of an objection petition under section 47, FC.P.C. The objection petition in question is, therefore, maintainable."
(emphasis supplied)
There is no cavil with the proposition that the spirit and object of the provisions of section 47 of CPC is to provide swift relief to the parties in a matter arising out of execution of decree. The exclusive jurisdiction of an executing court in view of the scope of section 47 of CPC will indeed cover all matters concerned with the execution including wrong/flawed implementation of decree, discharge or satisfaction of an existing decree between the same parties. In view of underlying rather obvious spirit of the provisions of section 47 of CPC, the same must be liberally interpreted to bar suits which involve the question/controversy under the provisions of section 47 of CPC as this section has been introduced for the beneficial purpose of checking unnecessary and needless litigation, therefore, its operation should not be limited[1]. A judgment debtor, therefore, is not debarred from moving an application raising an objection qua the flawed execution of the decree by the concerned authorities in the result of which he was deprived of his legal and vested rights which even were not assailed by the decree holder. In the present case, respondent No.1 who was one of the judgment debtors, being aggrieved by the act of revenue authorities qua wrongly implementing of the decree by depriving him of his valuable and unquestioned rights, while invoking the provisions of section 47 of CPC rightly approached the court by moving an objection petition seeking rectification of the wrong committed by revenue authorities. Therefore, objection raised by learned counsel for petitioners qua maintainability of objection petition is without any force. It is correct that no execution petition was filed seeking implementation of decree dated 05.05.2015 passed by the learned trial court, however, it was the declaratory suit in which Mst.
Suraiya Bibi sought declaration to the effect that she being legal heir of Ali Muhammad was entitled to the extent of her share in the property left by her father. Since there existed inheritance mutation No.169 dated 14.11.1958 through which she was deprived of her share, in order to give effect qua her declaration necessary corrections were required to have been made in the revenue record in pursuance of decree dated 05.05.2015 particularly after dismissal of her contempt petition filed before learned Additional District Judge. Mst. Suraiya Bibi rightly approached the revenue authorities and they proceeded to give effect to the declaratory decree dated 05.05.2015 passed in favour of Mst. Suraiya Bibi in the revenue record and rightly proceeded to cancel inheritance mutation No.169 dated 14.11.1958. However, the revenue authorities simply erred by setting aside the remaining/ subsequent mutations that had been passed in favour of Muhammad Mushtaq who purchased entire share of petitioners, in their entirety for the reason that as per contents of plaint, declaration was sought by Mst. Suraiya Bibi in respect of setting aside of such mutations only to the extent of her share. Revenue authorities, however, proceeded to cancel those subsequent mutations in their entirety against the dictates of declaration given in decree dated 05.05.2015. Revenue authorities, thus, wrongly cancelled those mutations in toto and error committed by them in the execution of decree dated 05.05.2015 has rightly been corrected by both the courts below by safeguarding the rights of respondent No.1 which never remained under objection by the petitioners throughout. Similarly, the mutations entered and sanctioned after flawed implementation of decree having no legal effect at all were also rightly cancelled by learned courts below. Both the courts below have rightly proceeded to pass the impugned order and judgment in view of peculiar facts and circumstances of present case by taking into consideration the material available on the record in its true perspective and came to the right conclusion that decree dated 05.05.2015 was implemented against the dictates of decree. Learned counsel for the petitioners remained unable to point out even a single circumstance suggesting illegal assumption, non-exercise, or irregular exercise of jurisdiction by the learned courts below while passing the impugned order and judgment. Where concurrent findings of both the courts below on a question of fact are based on proper appreciation of material available on the record and do not suffer from any illegality or material irregularity affecting the merits of the case, same cannot be taken to any exception at revisional stage. Reliance in this regard may safely be placed on cases reported as "Sultan Muhammad and another v. Muhammad Qasim and others" (2010 SCMR 1630) and "Abdul Khaliq (Deceased) through L.R.s. and others Vs. Ch. Rehmat Ali (Deceased) through L.R.s. and others" (2012 SCMR 508). In the recent pronouncement in case titled Salamat Ali and others v. Muhammad Din and others (PLJ 2023 SC 8), it has been held that the revisional court cannot substitute the findings of the courts below with its own merely for the reason that it finds its own findings more plausible than that of courts below. In the present case, impugned order and judgment rather have been passed in the consequence of correct appreciation of facts and material available on the record.
5. Taking up now the stance of Ghulam Mustafa for initiation of contempt proceedings against respondent No.1 and others on the ground that they in connivance with revenue officials violated status quo order dated 26.10.2020 passed by this Court in Civil Revision No.390 of 2020 as they on the intervening night of 4th and 5th of November, 2020 forcibly dispossessed him in an illegal manner as such they are liable to be penalized, it may be observed that in the event of initiating contempt proceedings in respect of violation of any injunctive order, the person wishing to initiate contempt proceedings against the contemnors is required to have provided all necessary details qua violation of the injunctive order. It was also necessary for the petitioner Ghulam Mustafa to have mentioned the time, mode and manner whereunder he was forcibly dispossessed. Petitioner Ghulam Mustafa, however, in the instant case merely stated that respondent No.1 and others/contemnors with the help of revenue officials on the intervening night of 4th and 5th of November, 2020 forcibly dispossessed him in an illegal manner. Contempt proceedings indeed cannot be initiated on the basis of vague, sketchy and ambiguous assertions. There is no cavil with the proposition that contempt proceedings under the provisions of order XXXIX Rule 2(3) CPC are considered quasi criminal proceedings since same entail punishment of detention for a period not exceeding six months, therefore, same are to be proved upto hilt and all doubts are required to be excluded before awarding punishment in terms of Order XXXIX Rule 2(3) of CPC. Guidance has been sought from case titled "Mian Qadiruddin and another v. Mian Ghulam Yaqoob Bandey and another" (1977 SCMR 475). As per Ghulam Mustafa petitioner, he was dispossessed on the intervening night of 4th and 5th of November, 2020, however, application for initiating of contempt proceedings was filed on 10.03.2021 with the delay of more than four months and no plausible reason has been given for filing contempt petition belatedly. Ordinarily contempt petition is required to have been filed with due promptitude just after the violation of injunctive order. Belated filing of contempt petition indeed was fatal to petitioner's case particularly where no necessary details qua the happening when Ghulam Mustafa was dispossessed have been furnished in the petition which were necessarily required to have been furnished while moving application for initiation of contempt proceedings. Contempt proceedings cannot be initiated on the basis of vague, ambiguous and sketchy assertions. In such backdrop, no case of initiation of contempt proceedings against respondents at all was made out.
6. The upshot of above discussion is that all the three above hinted revision petitions and Crl. Org.
No.11-W of 2021 are devoid of any merits, the same are dismissed. No order as to cost.
1. Jumaee vs. Chowdry Wahed Ali (11 B.L.R. 149(PC), Ram Chand vs. Shamas Din (A.I.R. 1938 Lahore 690) and Prosunno Coomar Sanyal and another vs. Kasi Das Sanyal and others (ILR 19(C)
683).