ABDULLAH BALOCH, J. This order disposes of Civil Misc. Appeal No, 13 of 2024; whereby appellant assailed the order dated 8th September 2023 passed by the learned Senior Civil Judge-I, Quetta ("Executing Court") in Execution Application No.02 of 2023 with the averments that the suit of respondents was decreed by this Court in R.F.A. No.41 of 2014, vide judgment and decree dated 30th June 2021 and the same was upheld and modified by the Hon'ble Supreme Court of Pakistan in its judgment dated 6th October 2022 in Civil Appeal No. 10-Q and 1273 of 2021.
2. It is the case of appellant that in pursuance to judgment and decree dated 30th June 2021 passed by this Court was assailed by the appellants before the Hon'ble Supreme Court of Pakistan by filing Civil Appeal No. 10-Q and 1273 of 2021; whereby both the appeals were disposed of through a common judgment dated 6th October 2022. Whereafter, the respondents filed execution application before the executing Court for executing the decree, which was also contested by the appellants by raising objections, but the objections were overruled by the learned executing Court, vide order dated 8th September 2023. Whereafter, the appellants have filed the instant appeal.
3. The learned counsel for the appellants mainly agitated that the execution application filed for satisfaction of decree in the trial Court, was barred by the provisions of Section 38 of C.P.C.; that the decree passed by the appellate Court should have been filed for execution before the appellate Court.
4. The second limb of arguments of learned counsel for appellant was that there are certain bona fide purchasers of the decreetal property, but the same were not made party by the respondent No. 1/decree holder at the time of filing of suit. Thus, concealed the facts before all forums, hence the decree cannot be executed against the bona fide purchasers of the decreetal property, as such, the learned forum below without proper appreciation of law and facts rejected objections of the petitioner in cursory manner, which is not sustainable under law.
5. On the other hand, Mr. Azhar Khan, Attorney of the respondent No.1 vehemently opposed the contentions so raised by the learned counsel for the appellant.
6. We have heard learned counsel for the parties and perused the record minutely. It is the case of appellants that the respondent No.1 and others filed 4th amended Civil Suit for declaration, possession, partition, rendition of accounts and permanent injunction against the appellants and predecessor in interest of the appellants in the court of Senior Civil Judge-II, Quetta. However, the suit was dismissed. Being aggrieved, the present respondent No.1 and others challenge the same before this Court, initially the case was remanded to the trial Court, but the same judgment was assailed before the Hon'ble Supreme Court of Pakistan, while with consent of the parties the matter was remanded to this Court for deciding the matter afresh. Consequently, after hearing the parties, the appeal filed by the respondent No.1 and others was decreed; vide judgment dated 30th June 2021. Being aggrieved both the parties assailed the judgment 30th June 2021 before the Hon'ble Supreme Court of Pakistan by filing Civil Appeals Nos. 10-Q and 1273 of 2021; whereby the Civil Appeal filed by the judgment debtor was dismissed. However the Civil Appeal filed by the respondent No.1 was partly allowed and the decree dated 30th June 2021 was modified and all CMAs filed by the parties were merged in the final judgment of Supreme Court dated 6th October 2022. Thereafter decree holder filed an execution application for satisfaction of the decree dated 30th June 2021 before the trial Court. Meanwhile, the appellants filed objections on the execution application filed by the respondent No. 1, which was rejected.
7. We with care and caution dilated upon the contention of the appellants under Section 38 of C.P.C. that the execution application was not maintainable before the trial Court as the decree was passed by the appellate Court (this Court) which should have been filed before this court.
8. While, Section 38, C.P.C. cannot be read in isolation of section 37, C.P.C. for ready reference section 37, C.P.C. is reproduced as under: "Section 37. Definition of Court which passed a decree.--The expression "Court which passed a decree" or words to that effect, shall in relation to the execution of decrees unless there is anything repugnant in the subject or context, be deemed to include,--
(a) where the decree to be executed has been passed in the exercise of appellate jurisdiction, the Court of first instance, and"
(b) where the Court of first instance has ceased to exist or to have jurisdiction to execute it, the Court which, if the suit wherein the decree was passed was instituted at the time of making the application for the execution of the decree, would have jurisdiction to try such suit.
38. Courts by which decrees may be executed.---A decree may be executed either by the Court which passed it, or by the Court to which it is sent for execution.
9. The plain reading of the above sections made it crystal clear that the decree, which was passed by the appellate Court can be executed by the first instance Court i.e. trial court.
10. Thus, the first limb of arguments of the learned counsel for appellants having no force to be accepted in view of the referred provisions of law. Reliance in this regard is placed on the case of "Muhammad Asar Hussain v. Karachi Development Authority, Karachi, 1999 CLC 1121" the relevant portion whereof is reproduced as under: "5. A decree-holder is competent to seek execution of the decree by filing an application as provided under Order XXI, Rule 11(2), C.P.C., which provides that the decree-holder shall apply for the execution to the Court which passed the decree or to the Officer if appointed in that regard. It is this provision of law which led Mr. Muhammad Asar Hussain, to say that since the main judgment was passed by this Court in R.A. No. 246 of 1986, partly decreeing the suit, it is this Court which is competent to execute the decree. This provision is clarified by section 37, C.P.C. which has defined the expression "Court which passed a decree". It would be advantageous if the provision of section 37, C.P.C. is reproduced: "37. Definition of Court which passed a decree.--- The expression Court which passed a decree' or words to that effect, shall in relation to the execution of decree unless there is anything repugnant in the subject or context, be deemed to include--
(a) where the decree to be executed has been passed in the exercise of appellate jurisdiction, the Court of first instance, and
(b) where the Court of first instance has ceased to exist or to have jurisdiction to execute it the Court which, if the suit wherein the decree was passed instituted at the time of making the application for the execution of the decree, would have jurisdiction to try such suit."
6. Section 37, C.P.C. came up for consideration in several reported cases. To begin with, it was held by the Allahabad High Court in Bhagwan Dass v. Ganga Prasad AIR 1959 All. 92 that the words "appellate jurisdiction used in section 37, C.P.C. has a wide meaning and comprehensive enough to include jurisdiction. Reliance was placed on the decision of a Full Bench of Madras High Court in Chappan v. Moidin Kutti ILR 22 Mad. 68 Similar question as of instant case in reference to section 37, C.P.C., also came up for consideration in Ardeshir Cowasjee v. Byram D. Avari and 4 others 1984 CLC 2494 where reference was made to the case Bhagwan Das (supra) Lingam Krishna Bhoopathi Deo Garu v. Raja of Vijayamram and another AIR 1914 Mad. 222 and Alluri Bangar Raju and others v. Alluri Raja Kaliandi Suraiahmma Bahadur and another AIR 1957 Andh. Pra. 403. In the last mentioned case it was held that the proper Court to execute the appellate decree would be only the trial Court by virtue of section 37, C.P.C.
11. The second limb of arguments of the learned counsel for the appellants was that certain bona fide purchasers, who had purchased the decreetal property from an immemorial time, but the same bona fide purchasers deliberately and intentionally have not been made party to the suit by the respondent No.1 (Zakia Begum and others), hence third party interest was created in favour of the bona fide purchasers. Thus, the decree passed by this court cannot be executed against the bona fide purchasers.
12. Be that as it may, record transpired that in the entire proceeding since filing of suit till passing of judgment by this Court and the Hon'ble Supreme Court nowhere this objection was raised by the appellants that the suit properties sold out to the bona fide purchasers rather same was concealed by the appellants and the predecessor in interest of the parties by means of fraud and misrepresentation the such fact was also observed by this Court, while disbelieving the Will" fraudulently executed in the name of predecessor in interest of the appellants, in this behalf criminal proceedings were also culminated into conviction of the predecessor in interest of the appellants, hence non-arraying of the strangers and so called bona fide purchasers by the respondent No.1 is having no force and neither this important point was agitated or brought in the notice during the entire proceedings before the all Courts, thus the objections once had not been taken at the initial stage before the trial Court cannot be taken subsequently, particularly at the time of execution of decree. In this regard reliance is placed on the case of "Mst. Naseem Akhtar and others v. Shalimar General Insurance Company Limited, 1994 SCMR 2022" the relevant portion whereof is reproduced 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.
13. Even otherwise; strangers, who claimed to be bona fide purchasers of the suit properties were not aware with regard to the proceedings pending against the suit properties between the parties, still they have alternate remedy to approach the said forum for redressal of their grievance under section 12(2), C.P.C., but the appellants cannot be allowed to step in the shoes of so called bona fide purchasers.
Thus in view of above, the impugned order dated 8th September 2023 passed by the learned Senior Civil Judge-I, Quetta does not suffer from any material illegality or irregularity to be interfered by this court.
For the above reasons, the appeal being devoid of merits is dismissed with no order as to cost.
Consequently, the C.M.A. No. 1680 of 2023 and C.M.A. No. 136 of 2024 are merged and dismissed.