' The petition arises out of an order of learned Sub-Judge, Muzaffarabad, the executing Court, passed on January 15, 1986, whereby the review petition addressed on behalf of the petitioner, was dismissed.
2. The controversy raised in the petition has emanated out of execution proceedings instituted by the respondent-decree-holder against the petitionerjudgment-debtor, in the Court of Sub-Judge, Muzaffarabad. By virtue of award of the arbitrator of November 16, 1966, made a rule of the Court, on March 20, 1976, the respondent acquired decree for extraction of timber from Compartment 10, 8 Part and 12 Part of Bandi Ashkote Range. He moved for the execution of decree before this Court, but the same was sent to the learned Sub-Judge for its disposal. During the execution proceedings, various applications were moved by the decree-holder with reference to obstructions created by the judgment-debtor in extraction of the timber, the subject of decree. On November 2, 1985, on presentation of objections, it was ordered that in view of the defence taken by the judgment- debtor, there was no objection to it in extraction of timber from the relevant compartments and that no further hindrance would be created in respect of the same. The learned Sub-Judge also ordered that the decree-holder shall cut the trees and the measurement shall be taken in order to satisfy the decree. This part of the order was sought to be reviewed, by the judgment-debtor. The executing Court declined to review its order as unless fresh trees were cut, the decree could not be satisfied in accordance with its terms and conditions. It was held that the quantity of timber liable to be delivered to the decree-holder in lieu of 10% depreciation admissible to him, could not be satisfied unless fresh trees were cut and converted into timber, as directed in the decree.
3. Mr. Ansari, the learned counsel for the petitioner, assailed the order of executing Court by taking us through the terms of reference, the award and the order of the High Court whereby the award was made rule of the. Court. It was emphasized that the decree provided for only extraction of timber from the relevant compartments and not the cutting of trees in order to satisfy the decree with respect to the quantity of timber admissible by virtue of 10% depreciation. This contention was opposed by Mr. Fazal-e-Hussain, the learned counsel for the respondent, who supported the impugned order by referring to various orders passed by the Chief Conservator of Forests and the order of the President purporting to satisfy the decree.
4. The scope of review is postulated under Rule 1 of Order XLVII of the Code of Civil Procedrue, wherein it is provided that an aggrieved person may move for review in the following circumstances:--
(i) when some new and important matter or evidence is discovered and such evidence, after the exercise of due diligence, was not within his knowledge or could not be produced by him at the time when the decree was passed or order made;
(ii) on account of some mistake or error apparent on the face of the record; and
(iii) for any other sufficient reason.
' In order to determine a point raised in the review petition, the Court has to keep in view the aforesaid conditions in addition to the provisions of section 114 of the Code. In order to succeed, it is enjoined upon the party seeking review of decree or order to bring its case within the fortress of aforesaid essentials. When an objection is raised in review which ought to have been raised earlier or the point sought to be settled in review, prima facie, is debatable necessitating total appraisement of evidence or reconsideration of the proposition as a whole, such point is not sustainable in exercise of review powers. In Mottai Goundain's case, AIR 1933 Mad. 290, on analysing the scope of review, it was observed: "Order 47, Rule 1, C.P.C. Cannot possibly cover a case where the actual issue has been fully tried by the Court, and afterwards one of the parties discovers an argument which he might have raised, based either on fact or law, and asks the Court to review its order."
5. The scope of review was considered by the Supreme Court in Haji Bostan's case, PLD 1982 SC 102, in the following manner:-- "We do not feel that this is a fit case or occasion to resolve the above controversy, and would as such, leave it open for consideration in some more proper and live case. We are of the view that as this point was not raised before the High Court during the course of the hearing of the Regular Second Appeal, therefore, it could not have been allowed to be raised or introduced through a review application, and was, from that point of view, beyond the scope of review, as envisaged in Order XLVII, rule 1, C.P.C. When confronted with this situation learned counsel submitted that as his client had no notice or knowledge of the aforesaid development or point at that time, therefore, he was well within his rights to raise it subsequently in review, because, it came to his notice after the decision of the R.S A. The contention has no merit, as in our opinion, review jurisdiction is not intended to introduce such plea or pleas which if allowed to be raised, will enable a suitor to introduce what may be called at the most a "debatable point" or a "controversial point" of the kind and type involved herein on which there are views of another High Court or High Courts, sometimes different from and sometimes in line with, the High Court in which the appeal was heard and decided."
6. In present case, the point raised in the review petition and before this Court precisely is that the decree-holder cannot advert to felling of trees and converting them into timber to satisfy the decree. Moreover, the decree-holder has to extract timber only from the relevant compartments in respect of which he was given lease by the judgment-debtor. In order to resolve the controversy, it will be conducive to reproduce the relevant part of the award of the arbitrator: "The lessee's assertion that he cut 12,795 trees stands unrequited and I have not got any special means to ascertain its correctness or otherwise. Therefore, I have got no alternative but to accept this assertion. In his report which is Ekt. PB, Raja Lal Hussain, Conservator of Forests has mentioned that according to his conservative estimate about 10,000 trees must have been cut which gives converted value of Rs, 30,00,000 c.Ft. Though, in this report, it has been mentioned that the figures cannot be ascertained with any certainty, yet these figures are stated in the progress report of the Lessee and there is no mention about any doubt relating to figures given in the progress report.
This report was made long before and I being left without any rebuttal to it have to accept the report as it is and declare that total converted timber on the eastern side of CFL is 30,00,000 c.Ft.
' The final quantity of timber allowed to be extracted comes to 1,12,1789 c.Ft. On this quantity we have to add 10% depreciation per year and this is to be counted from January, 1964. The per year depreciation on 10% formula comes to 1,12,179 c.Ft. And upto January, 1967 it will be 3,36,537 c.Ft.
' Under this formula the Lessee will be allowed to extract 1458326 c.Ft. On 2nd January, 1967, and 1,570,505 c.Ft. In January, 1968."
' It is quite clear from the above portion of the award that the actual quantity of timber admissible to the decree-holder was to be extracted from the compartments described in the lease, on the eastern side of the Cease-fire Line. However, the quantity of timber allowed in favour of the lessee by virtue of 10% depreciation, was not described to be extracted from the aforesaid compartments.
The award is silent in this regard. Besides, the award does not mention that the timber liable to be delivered to the lessee on account of 10% depreciation was to be procured by felling trees, converting them into logs and extraction. In case the quantity of timber resting on 10% depreciation could be available to the lessee out of the timber already lying in the compartments, the necessity of construing the award in the manner of felling of trees and converting them into timber may not arise. But when the timber is not available, then it is obligatory for the judgment-debtor to allow satisfaction of the decree by delivering timber to the decree-holder, even by felling fresh trees. This interpretation of the award is positive, as the decree is to be satisfied in the light of its terms. The quantity of timber liable to be delivered to the decree-holder by virtue of 10% depreciation, is increasing every year on account of failure of the judgment-debtor to satisfy the decree. This position can very well be appreciated by adverting to the record of execution proceedings.
7. The aforesaid observation of this Court finds support from the following acts of the petitioner:
(a) On availing the legitimate right of appeal before the Division Bench, against the order of the High Court whereby the award was made rule of the Court, the petitioner preferred an appeal before the Supreme Court, which was dismissed. On dismissal of the appeal, the decree-holder moved afresh to the executing Court for carrying execution proceedings. Subsequent application was moved on March 27, 1984. It was accompanied by a "Sabeal". Annexure 'A', showing the volume of timber already extracted and the remaining volume of timber. In Annexure 'A', the decree-holder also referred to the compartments for extraction of timber in order of his preference. Preference No,1 was given for compartments No, 10(b)-Part, 12-Part and 14-Part of Bandi Ashkot Range, and the second preference was for compartments Nos. 30, 31 and 32 of Sharda Range. No objection was raised by the judgment-debtor against the aforesaid claim of the decree-holder.
(b) Another application was moved for attachment of timber. The executing. Court passed an order on May 15, 1984 whereby forest compartments No, 10(b)-Part and 12-Part of Bandi Ashkot Range were attached, with the condition that the Forest Department shall not lease out these compartments unless the decree of the decree-holder was fully satisfied. This order remained intact.
(c) On September 13, 1984, the Chief Conservator of Forests equally informed the decree-holder, with reference to the order of the executing Court, that the department had no objection to the satisfaction of the decree.
(d) On January 23, 1985, the Chief Conservator of Forests, informed the decree-holder, in answer to his application of November 8, 1984, to extract timber for satisfaction of the decree and that the department shall have no objection to the same.
(e) On June 18, 1984, an order was issued by the President carrying a direction to the department for satisfaction of the decree.
' The aforesaid correspondence and orders reflect that the petitioner had no cavil, whatsoever, with the decree and the mode of its execution. It was for the first time in the review application before the executing Court that the petitioner raised an objection to cutting of trees. This objection is unsustainable particularly in view of the admission made by the Chief Conservator of Forests, through his letter No, 231 of November, 4, 1985, wherein it is mentioned that the department has no objection to the cutting of trees, their conversion into timber and extraction for satisfying the decree. The relevant part is reproduced: {{ URDU TEXT }} {{ URDU TEXT }} ' The aforesaid letter indicates that the department accepted the position of fresh cutting of trees and extraction of timber from the relevant compartments even in 1985. It was admitted at the Bar that 500 acres forest area previously on the eastern side of the Cease-fire Line, is presently under occupation of the Forest Department, as such available for extraction of timber by the lessee. Be that as it may, the fact remains that the judgment-debtor accepted to deliver timber to the decree-holder falling to his share by virtue of 10% depreciation on account of non-satisfaction of the decree.
8. In case the point raised in the review petition and before this Court is allowed to be re-opened, it will obviously necessitate re-appraisal of whole evidence and reconsideration of the award and the judgment of the High Court. This, in my estimation, is beyond the scope of review as contemplated under Rule 1 of Order XLVII of the Code of Civil Procedure. The learned executing Court has rightly turned down the objection.
' There is no force in this revision petition. It is, therefore, dismissed with costs.