The petition raises the proposition of jurisdiction of executing Court, relating to restitution.
2. The petition has arisen out of executing proceedings undertaken at the instance of Jalal Din, decree-holder, who acquired a decree for possession of Plot No. 401, measuring 16 Marlas, situate in Azizpur Hamlet, Tehsil Mirpur. The decree was passed on April 4, 1985. An application for execution of decree was moved on March 11, 1986. The learned Additional Sub-Judge, the executing Court, ordered on the even day, through its Nazir, for execution of the decree, in the light of its terms and to submit report by March 31. In consequence of this order, Nazir of the Court with the aid of local police, visited the spot on March 29 and found the plot closed by a compound wall with its main gate locked and a room constructed over the said plot. Saif Ali, judgment-debtor, summoned on the spot, opened the locks of main gate and the room. The articles belonging to Saif Ali, in the premises were thrown out and possession of plot, including built-up property was delivered to the decree-holder who acknowledged the same through a certificate. Saif Ali, feeling dissatisfied with the aforesaid situation, moved the executing Court for recalling of the whole action of execution and restoration of possession of the property to him. In his application, it was described that the decree was executed in respect of Plot No. 400-A, belonging to Saif Ali, instead of Plot No. 401. It was averred that a separate suit instituted by Saif Ali, relating to Plot No. 400-A was sub judice in the Court and ad interim injunction was issued in his favour, whereby decree-holder was directed to refrain from entering into possession of the said plot. The learned Additional Sub Judge, on going through the contents of the application and documents appended with it, recalled the warrant of execution and also directed that in case such warrant was already executed by delivery of possession to decree-holder, possession of the property comprising Plot No. 400-A along with house, be restored to Saif Ali. The Nazir of the Court, to whom direction was issued, accepted upon the instruction and thereby reversed the action of execution by putting Saif Ali into possession of the plot and superstructure. An application in the shape of objections to the application of Saif Ali, was submitted next day by Jalal Din, decree-holder wherein execution already accomplished, was supported. The matter was under active consideration of the trial Court when the present petition for quashment of order, dated March 30, 1986, relating to restitution of property, was impeached for want of jurisdiction.
3. Raja Muhammad Siddique Khan, the learned counsel .For the decree-holder-petitioner, emphasised that on accomplishment of execution, the only remedy available to Saif Ali, judgment- debtor, was to file a suit for restitution of the property and not to invoke the jurisdiction of the executing Court to reverse its order. It was elaborated that on accomplishment of execution of decree, the executing Court became functus officio, as such it was divested of its power to reverse the whole action. He cited Miss Uzma Ishaque's cage PLD 1986 (Azad J a K) 112 and Karam Dad and another decided by this Court on August 8, 1976 (unreported).
4.The proposition pertaining to jurisdiction of the executing Court is ascertainable in the light of the provisions of section 47, C . P. C . Subsection (1) of section 47 of the Code postulates that all questions arising between the parties to the suit in which decree was passed, or their representatives, and relating to execution, discharge or satisfaction of the decree, shall be determined by the Court executing the decree and not by a separate suit. The language of subsection (1), unequivocally, prescribed the scope of determination of disputes raised between the parties in respect of execution of decree. The scheme of law reflects that the Legislature very wisely framed a comprehensive provision of this section, so as to bring all the direct and ancillary issues between the parties to that suit in which decree was passed, or their representatives and assignees, pertaining to execution, discharge or satisfaction of the decree. It is accepted to Raja Muhammad Siddique Khan, the learned counsel for the petitioner, that the proposition under consideration has necessarily arisen out of execution of a decree- It is also undenied that the contending parties are same who were parties to the suit in which decree was passed. However, the exception to the rule sought to be pressed in support of the argument, is that at the time of passing of the impugned order, the Court had become functus officio. The facts of the case listed above manifest the true state as the next date of hearing in the execution order, dated March 11, was fixed for March 31. This date was, obviously, fixed by the executing Court to ensure the satisfaction of the decree by its execution. This was so as, unless satisfaction of the decree was not ensured, the proceedings could not be closed. Moreover, the report of Nazir of the Court, showing delivery of possession in lieu of execution of decree, was made on March 29, but the file of the trial Court does not acknowledge its receipt on that day. This is further strengthened by the order of the Court, dated March 30 as, according to the order, the executing Court directed its Nazir to return the warrant of execution without compliance and in the alternate, directed restitution of the property to Saif Ali. This shows that the report of Nazir, dated March 29, was not placed before the Court by March 30. In other words, the process of execution, .Though partly accomplished, was yet to be registered with the executing Court for concluding the execution proceedings. The executing Court, therefore, had full seisin over the matter. It is, therefore, not permissible to hold that the executing Court, at the time of passing of impugned order, had become functus officio, as stated by the learned Counsel for the petitioner. The authority cited in support of the objection, on account of different and distinguishable facts, is not of any assistance to the petitioner.
5. Jalal Din filed a suit for possession of Plot No. 401, by seeking demolition of the room and compound wall constructed by Saif Ali. In his written statement, Saif Ali denied the allegation of his illegal possession over the plot in question and raising of construction and averred that he was allottee in possession of Plot No. 400-A where he was living at the time. He admitted no interest, whatsoever, in Plot No. 401, by acknowledging the claim of Jalal Din in Plot No. 401. It was in consideration of the terms of pleadings of the parties that a decree was passed in favour of Jalal Din. Nevertheless, the learned Sub-Judge passed mere decree for possession of Plot No. 401, in favour of Jalal Din and ignored the prayer for demolition of superstructure purported to have been made by Saif Ali. Jalal Din also moved for execution of decree in respect of Plot No. 401. The counter-version of Saif Ali, as described in his stand in the lower Court as well as this Court, is that he was allottee in possession of Plot No. 400-A, over which he had constructed the compound wall and a room. According to his claim, decree was executed by dispossessing him from Plot No. 400- A and structure built over there. In other words, the stand taken by Saif Ali indicates that decree was executed wrongly by delivering possession of the property other than the one under the decree. The learned Additional Sub-Judge has not deviated from the terms of the decree as he has ordered to refrain from dispossessing Saif Ali from Plot No. 400-A and in case he was already dispossessed, to restore its possession.
6. It is well-settled that a decree is executed in the spirit of its terms and conditions and not in derogation to such terms. For the executing Court cannot go beyond what decree stands for, nor it can modify those terms or deviate from them, in exercise of its power of execution of decree. The present case is to be tested by the aforesaid rule. The learned counsel for the decree-holder- petitioner agrees to this principle. It is noticed that both parties do not controvert allotments of two different plots in their names. Saif Ali does not dispute the allotment of Plot No. 401 nor Jalal Din dispute allotment of Plot No. 400-A, in the name of Saif Ali. The dispute under consideration has cropped up by a confusion over the description and dimentions of these plots. It appears that Jalal Din, decree-holder, understands that plot in possession of Saif Ali is, in fact, Plot No. 401 and not 400-A of opposite party. This is how parties have not controverted the claim of allotment of these plots to them and admitted allotment of each other, in the written statements filed in two different suits. The controversy therefore, can conveniently be settled by referring the matter to the Development Authority in possession of the Master Plan and record of allotments.
7. The other aspect of proposition confines to Court's authority for the restitution. It was argued by Raja Muhammad Siddique Khan that once the possession of the property was delivered by execution of decree, it could not be reversed by the executing Court, as the remedy available to Saif Ali to recover the property from Jalal Din, was to bring a separate suit for possession. The contention is opposed by Ch. Munsif Dad, the learned counsel representing Saif Ali, who emphasised that the executing Court alone was competent to examine the matter for the settlement of the controversy at rest. He cited the authorities in support of his claim, namely, PLD 1966 Lah. 912 and PLD 1983 (Azad J & K)
1. This part of the proposition is already examined earlier by construing the provisions of section 47(1) , C . P . C . Which prescribes that the quotations relating to execution or satisfaction of decree, are to be determined by the executing Court and not by separate suit. In addition to that, the authority on the point is that when a decree is executed in derogation to the terms and conditions of the decree, the person aggrieved by such execution can invoke authority of the- executing Court for redress of wrong. In Rawalpindi Central Co-operative Bank Ltd.'s case PLD 1966 Lah. 912, the Co-operative Bank acquired a decree for recovery of amount through sale of timber belonging to the judgment-debtor. Part of the timber was sold and amount realised but the Bank in derogation to the terms of the decree, deemed it convenient to adjust security of the judgment-debtor, lying with it. The judgment-debtor objected to this action of the bank. The Division Bench of the High Court sustained the objection by directing bank to adjust its decree by selling rest of the timber and to release the security wrongly adjusted in violation of the terms of the decree. In Muhammad Rafique's case PLD 1983 (Azad J & K) 1, decree for joint possession was incorrectly executed by delivery of 'Khas' possession of the suit land. The judgment-debtor raised an objection by moving an application under section 47, C.P.C., before the executing Court. The proposition when received attention of Division Bench of this Court, was resolved by setting aside the execution proceedings. The executing Court was directed to restore possession of the land to judgment-debtor and to execute decree only for joint possession. A wrongful action of execution in derogation to the terms of decree, was reversed by restitution of possession of the property. The proposition equally received attention of the Supreme Court of India in Morla Ramanna's case AIR 1956 SC (Ind.) 87, wherein Mr. Justice Venkatarama Ayyar, J.
Observed:-- "It is well-settled that when a sale in execution of a decree is impugned on the ground that it is not warranted by the terms thereof, that question could be agitated when it arises between parties to the decree only by an application under section 47, C . P . C . And not in a separate suit."
8. The consensus, therefore, is that a decree is to be executed it stands for and no deviation or improvement, in any manner, is permitted to the executing Court. Whenever a question relating to wrongful and excessive execution of decree is raised, the executing Court alone is competent to decide such question, in exercise of its powers under section 47, C.P.C.
9. The jurisdiction of restitution rests an inherent powers of the Court. Section 144 of the Code contemplates restitution where and in so far a decree is varied, modified or reversed. The restitution under section 144 is, therefore, controlled by conditions described therein. A restitution can only be ordered in exercise of powers under section 144 when all or either of the conditions recognized by that section is present and not otherwise. On the other hand, in the case of a wrongful action, resting on an error, omission or irregularity, of executing Court, can be rectified in exercise of inherent powers of restitution, deemed ever vested in the Court. In Anant Baburao's case AIR 1944 Bom. 264, the principle was enunciated in the following manner:-- "No doubt the power of the Court to allow restitution is not limited to the terms of section 144 and the Court would have inherent power to direct restitution even though the decree is not reversed or varied in appeal. But the Court will not exercise the inherent power of restitution on the very ground which had been taken in the original suit itself and had been rejected."
In Piruji Hazariji's case AIR 1944 Sind 233, Mr. Justice Tyabji, J., analytically examined the proposition as under:-- "The jurisdiction of a Court to grant restitution does not merely rest on section 144, but is part of the inherent powers of a Court. Section 144 applies to cases where decree had, in fact, been set aside by a decree passed in another suit."
10. The principle listed above is squarely applicable to the present case, as here a wrong order of excessive execution was rectified by restitution of the property to Saif Ali. The order passed by the learned Additional Sub-Judge does not suffer from lack of inherent jurisdiction. There is no force in the petition. It is, therefore, dismissed.