SABIT ULLAH KHAN, J.- Through this single judgment, I intend to decide this appeal as well as the connected F.A.O. Nos. 10, 11, 12, 13, 14, 15, 16, 17, 6, 7, 8 and 9-M of 2025, as in all these cases common question of law and facts are involved.
2. Arguments heard and record perused.
3. In the instant case, the respondents/ landowners filed their respective references before the learned Referee Court, challenging therein the award bearing No. 2244/61/Acq/DC(S) dated 27.01.2016, which were allowed by the learned Additional District Judge-VI/Referee Court Swat, on 27.11.2019, whereby, in some cases, the compensation amount was enhanced to Rs. 12000/- per sq.ft. while in some case, it was enhanced to Rs. 15000/- per sq.ft. with 15% compulsory acquisition charges coupled with simple interest @ 6% per annum from the date of taking possession of the land. Being aggrieved and dissatisfied from the above-mentioned judgments, the appellants filed appeals before this Court, which were dismissed upto the august Supreme Court of Pakistan.
Thereafter, the decree-holders have filed execution petitions, which are still pending adjudication before the learned executing Court for satisfaction of the decree. In the first instance, the appellants/judgmentdebtors/Provincial Government have filed objection petitions to all the execution petitions pending before the learned executing Court. On 29.08.2024, the learned executing Court has ordered the attachment of Account-I (Non-Food) of the Provincial Government in the State Bank of Pakistan, Peshawar. For reference, said order is reproduced below: "Decree holders along with counsel present. Judgment debtors through Tehsil Municipal Officer, Babozai, Swat present. Previously this Court made every possible effort to execute decree of an amount approximately 7 Billion Rupees. The documentary efforts are there on record of judgment debtors/ TMO, however, there is no fruitful result of the same. The State Bank of Pakistan was also directed to provide the Non-Salaried Budget detail of Provincial Government of Khyber Pakhtunkhwa which is not received yet. They are directed to provide details that this Court has to execute a land acquisition decree of Rupees 7 Billion. Whether the said amount is lying with them in the Non-Salaried Budget of Provincial Government of Khyber Pakhtunkhwa.
This Court also make efforts to execute the decree through auction of properties of concerned Department. So far that purpose, Patwari Halqa of Mouza Qambar is directed to attach the suit property in revenue record with red ink and provide the market value of same for putting the same in auction. Patwari Halqa is also directed to visit the spot and provide category-wise valuation of spot including the construction. This is for fixation of opening bid amount in the auction proceedings. Office is directed to issue process accordingly.
Later on senior officer State Bank of Pakistan, Mr. Shahzad Gul appeared and provided details of four heads of accounts of Provincial Government of Khyber Pakhtunkhwa with State Bank of Pakistan, placed on file. The representative is informed that for General Bus Stand, the Provincial Government has acquired a chunk of land and the decision of enhancement is maintained upto august Supreme Court of Pakistan. The estimated cost of execution is round about 7 Billion Rupees. The said amount is required to be paid to the decree holders from Provincial Account-I.
He is directed to file the statement that the available funds are sufficient to meet with the liability of decree or not, however Non-Food Account No. I is attached to the extent of Rs. 7 Billion."
4. The record reveals that on 24.09.2024, representative of the State Bank of Pakistan submitted his report before the learned executing Court that the funds of Rs. 07 Billion have been allocated by them from Khyber Pakhtunkhwa Non-Food Account in compliance with the Court orders, after the said report, the learned executing Court directed the Superintendent, Sessions Court, Swat to apply for opening of official account in the Bank of Khyber for execution of the decree through proper channel to the Worthy Registrar of this Court. The judgment-debtors/ Provincial Government challenged the orders dated 29.08.2024, 19.09.2024 and 24.09.2024, passed by the learned Additional District Judge-III, Swat, in writ petitions No. 4780 to 4792-P/2024, (it is pertinent to mention here that no order has been passed on 19.09.2024 by the learned executing Court). The said writ petitions were disposed of by this Court at the Principal Seat through a single judgment passed on 26.09.2024. For ready reference, relevant part of the ibid judgment is reproduced below: "Perusal of record reveals that main grievance of petitioners is against interim order of learned Executing Court. During course of arguments, learned Advocate General also produced copies of orders dated 24.09.2024 passed in each petition by learned Executing Court, whereby direction for opening of official account in Bank of Khyber has been issued to Superintendent, Sessions Court, Swat, for execution of decree and case was fixed for 14.10.2024 for further proceedings. It is a minor issue of issuing direction for attachment of official account of Provincial Government by the Executing Court while main cases i.e, execution petitions are pending in all these petitions before learned Court and fixed for 14.10.2024. Main grievance of petitioners is also to the effect that they had not been given opportunity of hearing and that the impugned orders were harsh in nature therefore, we instead of resolving to controversy ourselves, would like to leave the matter for determination by learned Executing Court first. For such a minor issue we do not deem it proper to issue notice to respondents in all these petitions, compelling them to engage counsel for their defence in the matters. Present matter lies in the domain of learned Executing Court therefore it would be in the fitness of things that let the provincial government being necessary party should be heard by the Executing Court prior to passing of any meaningful order or proceedings against them. In such circumstances, we would like to suspend operation of the impugned orders as well as the orders passed in pursuance thereof for attachment of Account No.1 of provincial government. As such, the order of attachment of account No.1 and similar other accounts of provincial government shall stand removed. Further proceedings are to be conducted by learned Executing Court, where representative of provincial government be heard before passing any further order in respect of attachment of accounts or other assets of provincial government. Concerned officers of provincial government (petitioners) shall however arrange for their legal representation before learned Executing Court for the next date (in execution petitions) i.e., 14.10.2024. All these petitions are disposed of accordingly."
5. As all the above writ petitions were disposed of with the above-reproduced observations, accordingly thereafter, the learned A.A.G Khyber Pakhtunkhwa, has objected the execution petitions before the learned executing Court on another ground that the learned executing Court has not issued any notice u/s. 82 CPC, which is required to be given to the Provincial Government before passing the order of attachment of account of the Provincial Government. The notice has been issued to the Patwari Halqa, whereas, the report should have been submitted by the Provincial Government but till date, no report has been submitted before the Provincial Government. The learned A.A.G also stressed upon the point that Account-I of the Provincial Government is in the State Bank of Pakistan, Peshawar, therefore the learned executing Court lacks territorial jurisdiction to order attachment of such account. After hearing the parties, the learned executing Court while deciding the objections raised by the judgment-debtors/Provincial Government, vide judgment dated 17.01.2025, dismissed the objection petitions filed by the judgment-debtors/Provincial Government and thereby, order in respect of attachment of the Account-I (Non-Food) of the Provincial Government to the extent of Rs. 07 Billion was made in the execution petitions. Being aggrieved and dissatisfied from the aforesaid judgment, the appellants have approached this Court by filing these appeals.
6. It is evident from record that the execution petitions were filed by the landowners/decree- holders in the year 2020, which were adjourned sine die due to pendency of appeals before this Court and restored in March, 2022 but till date, the decree passed in their favour has not been satisfied as per the dictate of the decree. Sufficient time had been given to the judgment- debtors/Provincial Government to make the payment of the decretal amount to the decree- holders but the same has not been paid.
7. So far as the arguments of learned A.A.G that the provision of Section 82 CPC has been violated is concerned, it has no force as Sections 79 to 82 of the Code of Civil Procedure are procedural in nature, which do not create any substantive right or liability. The main object of Section 82 CPC is to give time to the Government or the Public Officer, at the highest level to consider the matter involved, and in case the suit has already been instituted to determine whether to defend the same or to contest the claim. Section 82 CPC is the further extension of this very principle. This object is to allow a final chance to the Government or the Public Officer concerned to satisfy the decree before the execution is ordered against him/it. It had a right under the procedural technicality provided in Section 82 CPC to a period of three months further to consider about the satisfaction and it was only then that the execution could be issued (warrant of possession in the case). Since, the time application was moved by the Government, much water has flowed down the bridges and yet to insist upon the compliance of the technicality would be nothing more than frustrating the decree for as long a time as possible. This cannot be allowed. The provisions of procedural law as to the technicality must be liberally interpreted. There is another angle to look at the problem, Article 25 of the Constitution of Islamic Republic of Pakistan, 1973, gives the guideline. All citizens are equal before law and are entitled to equal protection of law. The actions of the Government may consist of transactions which may be carried on by private individuals in which no element of exercise of sovereign powers is involved.
8. In the judgment cited as 2017 YLR Note 19 titled "Metropolitan Corporation Lahore through Administrator and others v. Lease Pak Limited, Lahore", it has been held: "True, the respondent/decree-holder has not been able to enjoy the fruit of the decree since 1.7.2011, but heavens would not have fallen if the learned executing Court had given adequate time to the appellants to satisfy the decree. I have considered long and hard as to whether it would be feasible and expedient to remit the matter to the learned executing Court to decide the objection petition of the appellants afresh. Given the agony of the decree-holder and to cut the matter short, the appellants are granted three months' time to satisfy the decree dated 1.7.2011 passed by the learned Civil Judge, Lahore. Should the appellants fail to avail of this opportunity, the learned trial Court would be at liberty to proceed with the execution petition pending before it strictly in accordance with the law.
In view of the discussion made above, the impugned order dated 23.5.2015 passed by the learned executing Court is hereby set aside and this appeal is allowed in the above terms."
9. Another important aspect of the instant case is that the original decree passed in favour of the decree-holders provides no time frame, Section 82 CPC reveals that the section speaks of specification of a time in the decree if one is to be passed against the Government. If the decree is not satisfied within the specified time, the Court will report the case for the orders of the Provincial Government. In the decrees, on the basis of which the present execution petitions have been filed, no time has been specified for their satisfaction. When the time is not specified, the question of satisfaction of the decree in the specified time does not arise at all. Similarly, the need to report the case for the orders of the Provincial Government is also not required if there is no time frame specified in the decrees. Where the original decree did not grant a specific time to comply and the three months period has since passed, the Government generally cannot re-assert Section 82 CPC to stall execution proceedings indefinitely, even if the Provincial Government tries to argue that it was not giving "reasonable opportunity of Section 82 CPC". Such plea must be raised promptly, it does not create a substantive or perpetual right in favour of the Provincial Government to resist indefinitely. If no stay or execution was sought and statutory time lapsed, the Provincial Government cannot invoke Section 82 CPC, afresh in execution proceedings long after the decree was passed especially if no time was granted in the original decree. "Procedural privileges" conferred on the Government under CPC (Sections 80 and 82) must be invoked timely and bona fide. If the Government does not do so or if mandatory period has expired without any direction of the Court, the Government cannot be heard to say later that execution is pre-mature unless there is some continuing stay/appeal or an express judicial order granting more time.
10. Another aspect of this case is that the execution petitions have been filed in the year 2020. In the proceedings of all the execution petitions, the learned executing Court has not only attached the immovable properties of the judgement-debtors/ Provincial Government but also ordered the auctions of the same. The ground that the report is not made for the orders of the Provincial Government was not raised at any time during these proceedings. It was raised/ agitated when the Court attached Account-I (Non-Food) of the judgment-debtors/Provincial Government in the State Bank of Pakistan, the plea was raised that there is no notice issued u/s. 82 CPC, therefore, the objections have been raised at a very belated stage. It should have been taken at the very early stage of the proceedings. According to Order XXI Rule 115 CPC, all the objections shall be raised at the first instance and no objection will be entertained afterwards. The plain purpose of this plea seems to be no more than delaying the payment to the decree-holders and on this score also, the stance of the judgment-debtors is not well-grounded.
11. After scanning the record, it was transpired that on 11.09.2023, the learned executing Court has issued/communicated notice of the execution to the Secretary Local Government at Civil Secretariat Peshawar in all the execution petitions. On 08.05.2024, the judgment-debtors/Provincial Government took the plea before the Court that the matter is awaited for the approval of the cabinet. On 18.11.2024, the judgment-debtors/Provincial Government again raised the objections of not giving notice u/s. 82 CPC, which was dismissed by the learned executing Court with the observations reproduced below: "The Provincial Government through Additional Advocate General, appeared on 14.10.2024, before this Court and repeated those points in his argument. He submitted that notice u/s 82 CPC was not issued to the Provincial Government. It is worth mentioning here that Deputy Commissioner is representative of Provincial Government in all aspects as per Law Department Manual 1984. He remained contestant up to august Supreme Court of Pakistan and was making representation from day-one of the execution proceedings. Besides this, this Court has also issued notice in specific u/s 82 CPC vide Order No. 6 Dated 30.3.2023 to all the concerns. So, this objection is not valid."
The learned executing Court acted upon the observations issued by this Court vide judgment dated 26.09.2024, vide which the executing Court was directed to pass any further order in respect of attachment of the accounts and other assets of the judgment-debtors/Provincial Government after providing an opportunity of hearing to them but the findings of the learned executing Court reflect that the learned A.A.G Khyber Pakhtunkhwa could not convince the executing Court, to not order the attachment of Account-I (Non-Food) of the judgmentdebtors/Provincial Government for the simple reason that there is no payment plan with them.
12. Even today, the learned A.A.G appeared and while arguing the case was not ready to satisfy the decree and instead presented and referred the letter dated 18.02.2025 to this Court, whereby the minutes of meeting held on 17.02.2025 under the Chair of Special Secretary (Budget), Finance Department, have been forwarded to the Secretary to Government of Khyber Pakhtunkhwa Local Government, Elections & Rural Development Department and the learned Advocate General, Khyber Pakhtunkhwa. For reference, the minutes of meeting are reproduced below: "Minutes of the meeting regarding Court order by Additional District Judge Swat regarding attachment of rs. 7.000 billion of KP accounts.
A meeting on the subject was held on 17.02.2025 at 10:00 AM under the chairmanship of Special Secretary (Budget), Finance Department in his office.
The meeting was attended by: 1) Khan Muhammad Addl: Secretary (Lit), Locat Govt. Department.
2) Mr. Saleem. Deputy Secretary (Lit), Finance Department.
3) Mr. Nouman, Section Officer (Lit), LG&RD Department.
4) Mr. Nisar Khan, TMO Swat.
1) Mr. Qazi Zia, Budget Finance Department, At the outset, the Budget explained the case and apprised that ADJ/IZQ-III Court passed 29.08.2024 whereby the State Officer-II, Officer-I1 the forum orders on Bank of Pakistan was directed to attach Account-1 of Provincial Govt. in the instant case. Resultantly, the SBP attached Account-1 to the extent of Rs. 7.000 billion.
The above orders were challenged in the High Court which suspended the same on 26.09.2024 with the directions to the Court to grant opportunity of hearing to the Provincial Govt.
Consequently, the Provincial Govt. filed Objection Petition in the District Court against the order dated 29.08.2024. Mr. Inam Ullah Khan Yousafzai, Additional Advocate General as per cabinet decision contested the case. However, on 17.01.2025 ADJ/IZQ-V Swat/Judge Referee Court dismissed the objection petition, inter alia, on the following grounds.
"The learned AAG KP could not convince this court not to order the attachment of Account-t of the Provincial Govt. for the simple reason that there is no payment plan with the Judgment debtors."
The Court once again directed SBP to attach Account-I of the Provincial Govt to the extent of Rs.7.000 billion which the SBP complied. Next date of hearing of the case is 22.02.2025.
The Provincial Govt filed RFA against the above judgment in the PHC and the case is fixed for hearing on 19.02.2025 in PHC Mingora Bench.
The Chair inquired about the implementation of the Cabinet Decision with regard to auction of the said property from the Rep; of LG&RD Department, to which the Rep; of the Department responded that no action has been taken yet. However, Mr. Inam Ullah Khan Yousafzai, Additional Advocate General informed the Additional District Judge that the Govt is ready to return the land to the land owners without recovery of the paid amount for the same. However, the land owners did not accept the proposal.
The Chair apprised the forum that the TMAs are autonomous bodies and attachment of the Account-I is not a fit charge. LG Deptt., as well as concerned Law Officer may inform the Court to attach the proprieties/Assets of TMA concerned instead of attaching Account-1, if necessary.
The Chair also directed the Rep; of LG&RD Department to expedite the implementation of the cabinet decision.
The meeting ended with the note of thanks from and to the Chair."
In the said meeting, the Provincial Government suggested that it is ready to return the land to the landowners/decree-holders without recovery of the paid amount for the same; however, the landowners did not accept the proposal. Further it was apprised that TMAs are autonomous bodies and attachment of the Account-I is not a fit charge. The Local Government Department as well as the concerned Law Officer may inform the Court to attach the proprieties/assets of TMA concerned instead of attaching Account-1, if necessary, which clearly reflects that still the judgment-debtors .are not interested to satisfy the decree and intentionally frustrating the judgment/decree passed in favour of the decree-holders upto to the apex Court. On this score alone, the instant appeals are bereft of any merit and required to be dismissed.
13. A plain and bare reading of Section 82 CPC clearly indicates that the Court while passing a decree against the Government is bound to specify the period during which the decree is to be satisfied. In my view, it was an omission on part of the learned trial Court that the time was not specified and the judgment-debtors have not objected this aspect of the case at the relevant time.
The provisions of Land Acquisition Act, 1894, require speedy disposal of determination of such disputes and an early payment. The Hon'ble Supreme Court in the case titled "Syed Saadi Jafri Zainabi v. Land Acquisition Collector and Assistant Commissioner" (PLD 1992 Supreme Court 472), held that the purpose of insertion of Section 28-A in the Land Acquisition Act, 1894 was to discourage the tendency to delay the payment of compensation in time and to ensure that the party whose property has been acquired, is duly compensated without unnecessary loss of time.
This Court noted that still a huge amount of Rs. 07 Billion is pending against the judgment- debtors/Provincial Government.
14. In the instant case, when there is absence of granting time to the judgment-debtors/Provincial Government for the payment of huge amount and when there is no mention of the mandate of Section 82 CPC in the original decree, then it was the duty of the judgment-debtors/Provincial Government to file an application u/s. 152 CPC for insertion of the requirement of Section 82 CPC in the judgment/decree but in the instant case, no such efforts, whatsoever, have been made by the judgment-debtors/Provincial Government.
15. The learned A.A.G appearing on behalf of the judgment-debtors/Provincial Government failed to persuade this Court to delay the execution proceedings in the garb of Section 82 CPC or point out any illegality or perversity in the impugned judgment passed by the learned executing Court, however, at the end of his arguments, he stated at the bar that if some reasonable time is given to the judgment-debtors/ Provincial Government, they would definitely execute the judgment and decree under execution.
16. In view of the above, this as well as the connected appeals are devoid of any merit, which are hereby dismissed in limine, however, the execution proceedings pending before the learned executing Court shall remain suspended for one month, i.e., upto 19.03.2025 and thereafter, the learned executing Court shall resort to all coercive measures against the judgment- debtors/Provincial Government.