1. ' SARDAR SAID MUHAMMAD KHAN, ACTG .C.J.---This appeal has been directed against the judgment of the High Court dated 6-2-1990 whereby the revision petition filed by the appellant, herein, was dismissed.
2. ' Brief facts giving rise to the present appeal are that an agreement was executed between the parties on 23-11-1963 whereby the appellant leased the forest area described as compartment 10
(b) part and compartment 12 of Bandi Ashkot Range.The lease area was situated on the Indian side of cease-fire line which was described in the agreement as eastern side of the cease-fire line.
3. According to the terms of agreement, the respondent was entitled to fell the standing trees from the said area and after paying the royalty @ Rs,2 per c.Ft. To export the timber to Pakistan for sale.
4. As there, was danger that Indian Army might hinder the working in the lease area, the agreement stipulated that respondent would carry on the work in the lease area at his own risk. The lease period was to continue for three years with effect from 23-11-1963, the date of the agreement. The agreement envisaged that in case of dispute between the parties the matter would be referred to the Conservator of Forests who would decide the dispute as an Arbitrator. The respondent, in pursuance of the aforesaid agreement, started work in the lease area but subsequently there were some casualties as a result of firing by the Indian Army. Consequently, the agreement dated 23-11- 1963 was revoked and was substituted by another agreement on 4-4-1966 whereby Mirza Nazir Hussain, the then Deputy Commissioner, Mirpur, was appointed as Arbitrator. The disputed points envisaged in the agreement were referred to him and he made an award on 16-11-1966. Certain objections were filed against the award by the appellant. The High Court, after hearing the parties on objections, amended the award vide its judgment dated 20-3-1976 to the extent that the respondent would not be entitled to any interest on the price of the timber to which he was found entitled the rest of the award was made the rule of the Court and a decree was passed in favour of the respondent, herein. The appellant filed an appeal to the Division Bench of the High Court against the order of the Single Judge but the same was dismissed on 29-3-1983; the appellant preferred a petition for leave to appeal to the Supreme Court but the same was also dismissed for non-prosecution on 16-1-1982. The respondent initiated execution proceedings on 5-7-1978 but the same remained pending in the executing Court till 4-1-1984 as the parties were contesting the award first in the High Court and afterwards in the Supreme Court. Finally, on 4-1-1984, the executing Court directed the respondent-applicant to file in the Court and the same was filed by the respondent on 28-3-1984. A notice was issued to the appellant as to why the decree should not be executed. On 29-4-1984, the executing Court passed an order to the effect that compartment 10(b) part and compartment 12 were allotted to the respondent-applicant but he also seeks the attachment of some other compartments too, as such, it was desirable to hear arguments before passing any order. The executing Court heard arguments in the matter on 12-5-1984 and passed the order of attachment of compartments 10(b) part and 12 which were initially leased to the respondent and declined to attach the other compartments, i,e,, compartments 30, 31 and 32, Dudnial, in the Sharda range. On 14-10-1985, the respondent filed an application in the executing Court alleging that the judgment-debtor was guilty of disobeying the order of the Court and consequently a notice was issued and the case was posted for 2-11-1985. On 2-11-1985, objections were filed on behalf of the appellant in which it was averred that the respondent-applicant was extracting the timber in pursuance of the decree and no obstruction was caused to him. A reference was also made in written objections to the letters of the Chief Conservator of Forests dated 13-9-1984 and 23-1-1985 in support of the contention that the decree-holder was allowed to lift the timber in pursuance of the decree. However, the executing Court passed an order on 2-11- 1985 wherein it was observed as under:-- {{URDU TEXT}} ' Thus, the respondent was permitted to cut standing trees from compartments 10(b) part and 12 for the satisfaction of the decree which was passed in his favour. The appellant filed a review petition against the aforesaid order on 4-1-1986. The respondent-decree-holder filed objections to the said application on the same day and contended that in view of the terms of the decree, he was legally entitled to fell the trees for the satisfaction of the decree passed in his favour. It was also averred in the written objections that the word `extract' mentioned in the award also includes the act of 'felling of the trees' and as such the review was misconceived and should be dismissed.
5. The executing Court, vide its order dated 15-1-1986, dismissed the review petition holding that the decree-holder was legally entitled to cut the trees because 'the extraction of the trees was only possible after cutting the trees'. The executing Court also made a reference to the letter of Chief Conservator of Forests dated 4-11-1985 according to which the Chief Conservator had stated that the decree-holder was at liberty to cut the trees for the satisfaction of the decree. A revision petition was filed against the aforesaid order of the executing Court. The High Court dismissed the same observing that the scope of the review petition was limited and, thus, the order of the executing Court did not suffer from any legal infirmity. However, the High Court also observed that the decree-holder had also exercised his choice regarding compartments 30, 31 and 32 but no objections were filed by the judgment-debtor; it further opined that although the timber was to be extracted from the compartments 10(b) part and 12 which were situated on the eastern side of the cease-fire line yet this condition did hold good regarding the timber to which the decree-holder was entitled as depreciation. Thus, the question of the satisfaction of decree from compartments 30, 31 and 32, which was not the subject-matter of the dispute at the time of dismissal of the review petition, was adverted to and dealt with by the High Court in revision petition. The High Court, while dealing with the matter of the satisfaction of the decree and affirming the order of the executing Court, observed as under:-- "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.
6. 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 falling 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."
7. ' We have heard the arguments advanced by the learned counsel for the parties and perused the record.
8. ' As has already been pointed out the dispute regarding compartments 30, 31 and 32, which was dealt with by the executing Court vide its order dated 12-5-1984, was not the subject-matter of controversy at the time when the executing Court passed orders dated 2-11-1985 and 15-1-1986.
9. The respondent decree-holder did not assail the order of the executing Court dated 12-5-1984 in terms that the compartments 30, 31 and 32 should have been also attached as was prayed by him.
10. ' Before dealing with the main point involved in the case as to whether the respondent, in view of the award and the decree passed in his favour, was entitled to fell the trees for the satisfaction of the decree, it is expedient to deal with the preliminary points raised by the learned counsel for the respondent.
11. ' It has been contended by Ch. Fazal-e-Hussain, Advocate, that as the scope of the review envisaged under Order 47, rule 1, C.P.C., is limited, the High Court has rightly held that the order of the executing Court did not suffer from any legal infirmity. It may be observed that the question as to whether the review petition was competent in view of the provisions contained in Order 47, rule 1 was not raised before the executing Court either in the objections or at the time of hearing of arguments. The executing Court, as has already been pointed out, dismissed the review petition on merits and not that the same was not competent. The executing Court dismissed the review petition on the ground that as the extraction of timber was not possible without first felling the standing trees, the respondent was entitled to fell the trees for the satisfaction of the decree in question. Although the High Court expressed the view that as the scope of the review petition was limited, the point canvassed by the judgment-debtor by way of review could not be of any avail to him, yet it affirmed the findings of the executing Court on merits holding that the respondent was within his right to sell the trees for reaping the fruits of decree. In fact the High Court went a step further when it referred to compartments 30, 31 and 32 and, thus, brought into controversy a new point which was not subject of review petition. The observation of the High Court regarding the aforesaid compartments is likely to give impression that the decree-holder was entitled to fell the trees even from the said compartments at his option. Reverting to the question of competency of the review petition before the executing Court, we are of the view that it is too late in the day for the respondent to contend that the review petition was not competent when no such objection was raised before the execution Court; especially so when the High Court in exercise of its revisional jurisdiction has also affirmed the order of the executing Court on merits. The learned counsel for the respondent has referred to a case reported as Mottai Goundan v. P.S. Ramaswami Ayyangar AIR 1933 Mad. 290 wherein it was held that if the actual issue has been fully tried by the Court and afterwards one of the parties discovered an argument which he might have raised and was not raised, such a party could not be permitted to agitate the point by filing a review petition. It may be observed that the case of the appellant is that both the executing Court and the High Court ignored the fact that according to the award or for that matter the decree passed on the basis of the award, only the timber which had already been converted and was lying in the eastern side of the cease-fire line was to be utilized for the satisfaction of the decree and not by felling any standing trees but both the Courts below have failed to attend to this aspect of the controversy in its correct perspective. There are no findings of the executing Court that no timber was lying on the eastern side; the findings of the High Court on the point are also without any material. According to the case of the appellant, both the Courts below while observing that the decree-holder was entitled to fell the standing trees for the satisfaction of the decree had made a mistake which is apparent on the face of the record because the view runs counter to the terms of the award and the decree. It has also been contended that even while disposing of the review petition the executing Court instead of ascertaining the terms of the decree dismissed the review petition on the ground that as the extraction of the timber was possible only after felling the trees, the decree- holder could fell the trees. The executing Court as well as the High Court, it was contended, lost sight of the fact that in view of the terms of reference made to the Arbitrator and the decree which followed the award, the decree-holder was not entitled to fell the trees for the satisfaction of the decree.
12. ' Irrespective of the validity of the arguments advanced on behalf of the appellant, which will be dealt with in the later part of this judgment, it cannot be said that the aforesaid contention of appellant does not bring its case within the ambit of Order 47, rule 1, C.P.C., when both the Courts below failed to consider the terms of decree in the light of the award. The authority cited by the learned counsel for the respondent has no relevancy in view of the facts of the case and need not be commented upon. Thus, the argument that the review petition was incompetent in the instant case has no merit and is hereby repelled. Even otherwise, when the executing Court dismissed the review petition on merits and the High Court has also advanced the reasons in affirming the order of the executing Court, it cannot be said that the appeal must fail on the sole ground that the review petition was not competent before the executing Court or its scope was so limited that the appellant could not be given any relief.
13. ' Next, the learned counsel for the respondent has argued that the order passed in exercise of revisional jurisdiction can only be interfered with if the ends of justice so demand and it is shown that the same was passed in violation of some statutory provisions. He has cited following authorities in support of his argument: ' In Malik Faiz Alam v. Malik Muhammad Arshad Khan PLD 1986 SC (AJ&K) 65, it was held that as the revisional jurisdiction vested in the High Court is discretionary in nature, the order passed in exercise of such jurisdiction can only be interfered with if ends of justice so demand and it is shown that there was violation of some statutory provisions or principles of natural justice as would render the proceedings coram non judice. It was observed that the High Court is not bound to interfere in exercise of revisional jurisdiction merely because the order is based on incorrect reasoning.
14. ' In Mujahid Hussain Naqvi v. Gulzar Ahmad Butt PLD 1982 SC (AJ&K) 6, it was held that the High Court has only limited jurisdiction in revision under section 115, C.P.C., and it is primarily meant for correcting the error made by the subordinate Courts in exercise of their jurisdiction. The order could be disturbed in exercise of revisional jurisdiction only if it is shown that the Court has acted illegally, i,e,, in breach of some provisions of law or with material illegality.
15. ' In Manager, Jammu and Kashmir State Property in Pakistan v. Khuda Yar PLD 1975 SC 678, it was held that legal formalities and technicalities should not be allowed to defeat the ends of justice.
16. The logic of words should yield to the logic of realities, particularly while dealing with adjustment of conflicting authorities. It was further held that although ordinarily the Courts decline to exercise revisional jurisdiction where alternate remedy is available, yet it is not an inflexible rule of law and should not be followed rigidly.
17. ' In Zafarul Haq v. Waris Iqbal PLD 1979 Lah. 793, it was observed that if substantial justice has been done, the High Court would be ordinarily loath to interfere with an order in exercise of revisional jurisdiction on the basis of the technicalities which may result in prolonged deprivation of the petitioner's adversary.
18. ' In Tola Ram v. Chandu Mal Tota Ram AIR 1924 Lah. 400, it was held that no revision lies from the order rejecting a review when a right of appeal was provided against the relevant order.
19. ' In Muhammad Khan v. Government of West Pakistan PLD 1971 B.J. 53, it was opined that where the remedy by way of appeal is available, no revision petition was competent. It was held that the power of revision being the creation of statute, the same cannot be exercised only 'in the interest of justice; unless, of course, the cases falls within the provisions of relevant provisions of the statute'.
20. ' In Shahzada Muhammad Umar Beg v. Sultan Mahmood Khan PLD 1970 SC 139, it was held that revisional power under section 135, Cr. P.C., would primarily intend for correcting the errors made by the subordinate Courts and thus, a discretionary order should not be interfered with in exercise of the said powers.
21. ' The perusal of the aforesaid authorities shows that the order passed in revisional jurisdiction is not to be disturbed if the same is not violative of any statutory provisions or the remedy by way of appeal is provided against the order; or that the order sought to be reversed in review petition was of a discretionary nature. We have no quarrel to the principles laid down in the aforesaid authorities but none of the authorities says that if an order is violative of the statutory provisions, or it otherwise falls within the purview of section 115, C.P.C., the same cannot be disturbed in exercise of revision jurisdiction. For the sake of convenience, section 115, C.P.C., is reproduced as under:-- "(1) The High Court may call for the record of any case which has been decided by any Court subordinate to such High Court and in which no appeal lies thereto, and if such subordinate Court appears-
(a) to have exercised a jurisdiction not vested in it by law; or
(b) to have failed to exercise a jurisdiction so vested; or
(c) to have acted in the exercise of its jurisdiction illegally or with material irregularity, or
(d) to have caused failure of justice the High Court may make such order in the case as it thinks fit." xx xx xx xx xx xx xx xx xx"
22. It is evident that if there is an illegality or material irregularity, it is a statutory duty of the revisional Court to go into the merits of the case challenged by way of a revision. However, if none of the eventualities stipulated under section 115, C.P.C. Exists, the revisional Court would not disturb the findings of the Court below. In the instant case, the executing Court did not give any findings as to whether in view of the terms of the decree, the same was to be satisfied only out of the timber which had already been converted and had been lying on the eastern side of the cease-fire line but merely observed that as the extraction was possible only after cutting the trees, the decree- holder was entitled to fell the trees. The reasoning given by the executing Court while disposing of the review petition were not only irrelevant to the point at issue but the same were violative of the basic principle of law that the decree is to be executed according to its terms and the executing Court has no power whatsoever to add or subtract from the same. Thus, it was imperative on the High Court to consider as to whether the course adopted by the executing Court while disposing of the review petition was in consonance with the relevant provisions of law or not. Instead, the High Court affirmed the findings of the executing Court on the ground that the timber which was to be extracted by the decree-holder in lieu of `depreciation' was not subject to the condition that same could be extracted only out of the timber which was lying on the eastern side of the cease-fire line.
23. The aforesaid reasoning adopted by the High Court was not substantiated by the terms of reference, award or the decree and was rather based on superficial view of the matter. Not only this, the High Court went a step further and raised the question regarding compartments 30, 31 and 32 which was not at issue before the executing Court at the time of passing of order dated 15-1- 1986.
24. ' Next, it was contended by the learned counsel for the respondent that the appellant was debarred from challenging the impugned order in view of the bar of res judicata. His contention was that so far as the satisfaction of decree out of compartments 30, 31 and 32 was concerned, the said compartments were mentioned in as second choice by the decree-holder but no objections were filed by the appellant in the executing Court. Thus, according to the learned counsel for the respondent, the appellant could not be permitted to say that the decree cannot be satisfied out of aforesaid compartments. The learned counsel has cited the following authorities in support of his contention: ' In Ch. Rehmat Ali v. Custodian, Evacuee Property, Lahore PLD 1966 Kar. 31, it was held that principle of res judicata is applicable to writs and thus In Muhammad Tufail v. Atta Shabir PLD 1977 SC 220, it was held that as when the suit was partially dismissed no further appeal was preferred, the principle of res judicata will be attracted. It was further opined that the appellant was also estoppel to re-agitate the matter in view of the principle of estoppel.
25. ' In Azad Government of the State of Jammu and Kashmir v. Kashmir Timber Corporation PLD 1979 SC (AJ&K) 139, it was held that a final decision of a Court of competent jurisdiction once pronounced between the parties, cannot be contradicted by any one of such parties. Res judicata not only ousts the jurisdiction of the Court but a person cannot be heard to say the same thing twice over. The reason being that a person cannot be harassed again and again upon the same question.
26. ' In Fateh Singh v. Jagannath Bakhsh Singh AIR 1925 P C 55, it was held that where the plaintiff, in a previous suit, based his claim of nearness of kin but did not mention the family custom, he is debarred to bring a fresh suit on the basis of family custom.
27. ' In Malik Ghulam Jilani v. The Province of Punjab PLD 1979 Lah. 564, it was held that as the party concerned admitted the Chief Martial Law Administrator to be President of the country, he cannot turn back subsequently and challenge the appointment of Chief Martial Law Administrator as President on the principle of estoppel.
28. ' It is evident from the authorities cited by the learned counsel for the respondent that the same have no relevancy to the facts of the case in hand. In the instant case it cannot be said by any stretch of imagination that the appellant admitted the claim of the respondent at any stage that he (decree-holder) was entitled to seek satisfaction of the decree out of the aforesaid compartments. The mere fact that the appellant did not file objections to the cannot be interpreted to mean that the appellant would be deemed to have admitted his claim regarding the aforesaid compartments. In the instant case the executing Court recorded in the interim order dated 29-4-1984 that the decree-holder was allotted compartments 10 (b) part and 12, but he also sought the attachment of other compartments. It was for this reason that the case was adjourned for arguments to 12-5-1984. The counsel for the appellant also addressed the Court and after hearing the arguments, the executing Court attached only compartments 10 (b) part and 12 and did not attach the rest of the compartments. The said order was not challenged by the respondent/decree holder. Thus, if the argument advanced by the learned counsel for the respondent is accepted, his own case is hit by the principle of res judicata rather than that of the appellant. However, without expressing any view as to whether the order dated 29-4-1984 would operate as res judicata against any of the parties, suffice it to say that as the question pertaining to compartments 30, 31 and 32 was not the subject-matter at the time of hearing the review petition before the executing Court and the same became alive only in the High Court, the High Court should not have expressed any opinion in that regard. Thus, we leave the matter regarding the question of res judicata regarding compartments 30, 31 and 32 to be decided by the executing Court, if at all the same is raised at any subsequent stage by any of the parties.
29. ' Next, it has been contended by the learned counsel for the respondent that as the Chief Conservator of Forests has, in his letter dated 4-11-1985, intimated the respondent/decree-holder that he could 'cut the timber' from the eastern side of the cease-fire line, the appellant cannot be permitted to turn round and say that the decree-holder was not entitled to cut the trees. It has been argued that the stand taken by the judgment-debtor in the said letter would constitute estoppel against the appellant to resile from his original stand and say that the decree-holder was not entitled to fell the trees. The learned counsel has contended that a party cannot be permitted to take contradictory stands at the different stages of litigation and, thus, the appellant was debarred from raising the objection that the decree-holder was not entitled to fell the trees for the satisfaction of the decree passed in his favour. The learned counsel has cited following authorities in support of his contention: ' In Azad Government of the State of Jammu and Kashmir v. Brig. Muhammad Aslam Khan PLD 1981 Azad J & K 71, it was held that the party participating in proceedings before the Arbitrator was estopped from challenging the arbitration agreement, reference or award.
30. ' In Muhammad Akbar v. Mst. Faziah Begum PLD 1982 SC (AJ&K) 62, it was held that if an argument was abandoned by the appellant before the District Judge and the High Court, the appellant was estopped to agitate the same at the stage of appeal in the Supreme Court.
31. ' In Haji Ghulam Rasool v. The Chief Administrator of Auqaf, West Pakistan PLD 1971 SC 376, it was held that doctrine of estoppel is not confined to the matters dealt with under section 115, Evidence Act, only. The word `estoppel' is also used in the English Legal phraseology about infinite variety of the actions. It is a disability whereby a party is precluded from alleging or proving in legal proceedings that a fact is otherwise than it has been made to appear by the matter giving rise to that disability. It was further held that it is true that to raise an estoppel there must be something in the nature of representation by the parties against whom it is pleaded as a result of which the party to whom it is made has been induced to take a particular course of conduct.
32. ' In Mohomed Musa v. Aghore Kumar Ganguli AIR 1914 PC 27, it was held that when the parties to a mortgage settle their claims under it by a compromise by which the mortgage-debts were to be extinguished and the property itself was to be divided among the parties in specific shares and even though the `Razinama' and the decree taken together are defective or inchoate as elements making up a final and validly concluded agreement for the extinction of the equity of redemption, the subsequent actings of the parties may be such as to supply all such defects and equity will support the transaction clothed imperfectly in the legal sense.
33. ' In The Trustees of the Port of Chittagong v. River Steam Navigation Co. Ltd., Chittagong PLD 1965 SC 352, it was observed that trustees (of the port) may waive notice prescribed under section 109(1), or may be estopped by conduct from raising objection as to sufficiency of notice. It was opined that failure to deny in written statement allegation in plaint of due service of notice amounts to admission and implied waiver of due service, especially so when the objection was raised after one and a half years of the institution of the suit.
34. ' As has already been pointed out the above cited authorities have been relied upon by the learned counsel for the respondent in support of his contention that the appellant was estopped to say that the decree-holder was not entitled to cut the standing trees for the satisfaction of the decree passed in his favour. The authorities are distinguishable and do not support the contention advanced by the learned counsel for the respondent. It may be observed that in case reported as Haji Ghulam Rasool v. The Chief Administrator of Auqaf PLD 1971 SC (W.P.) 376, referred to above, it has been opined that the principle of estoppel will operate only if the opposite party to whom representation is made changes his position as a result of the representation. In the instant case, it has not been shown that the respodent changed his position as a result of the letter of the Chief Conservator of Forests and if the principle of estoppel is not held to be applicable, he would be adversely affected.
35. The question of estoppel is a mixed question of law and fact. The point was not raised in the executing Court at any stage or even in the High Court during the course of arguments. Thus, the same cannot be permitted to be raised at this stage. Even otherwise, the Chief Conservator of Forests was not a party in revision petition in the High Court, nor he is a party in the present appeal.
36. The Chief Conservator was also not a party to the agreement dated 4-4-1966 or in the subsequent proceedings before the Arbitrator or in the High Court. The contesting party has been the appellant, i,e,, the Government. Thus, the Chief Conservator had no power to make any admission on behalf of the Government. Thus, the admission relied upon by the learned counsel for the respondent, as constituting estoppel, is of no legal consequence and cannot be said to constitute estoppel against the Government-appellant. It has already been stated in the earlier part of this judgment that on 2-11-1985, the Government-appellant filed the written objections wherein it was stated that the respondent was only entitled to extract the timber which was already lying on the eastern side of the cease-fire line. At no stage the appellant accepted the contention of the decree-holder that he was entitled to cut the standing trees for the satisfaction of the decree.
37. ' It may be pointed out here that the learned counsel for the appellant has maintained that the said letter was the result of coercion which the respondent resorted to by filing an application for initiating the contempt of Court proceedings against the Chief Conservator. There are two other letters of the Chief Conservator of Forests dated 13-9-1984 and 23-1-1985 in which it is clearly mentioned by the Chief Conservator of Forests that the decree-holder was entitled to carry away the timber which was lying on the eastern side of the ceasefire line. In the aforesaid view of the matter the contention of the learned counsel for the respondent that the appellant is estopped to challenge the impugned order of the Courts below, is not tenable and is hereby repelled.
38. Next, the question which needs determination is whether, in case the decree is not self-speaking, the executing Court can look into the judgment or award to ascertain the terms of the decree.
39. There was no dispute at bar that in such an eventuality, the Court is fully competent to look into the relevant record to ascertain the terms of the decree. In the instant case the decree is ambiguous and is not self-speaking and thus, it is not possible to ascertain the terms of the same without looking into the relevant record. For the sake of convenience, the decree is reproduced as under:-- "So, it is ordered that, 'the award passed by the Arbitrator is amended to the extent it was declared void i,e,, quantity of the timber of the value of interest plus 10% of the depreciation in relation to the amount of interest determined in accordance with the mode provided in the agreed formula shall stand struck out from the award and the rest of the award is filed accordingly and made a rule of the Court thereby granting a decree to the plaintiff in terms of the award amended."
40. ' The learned counsel for the respondent has cited following authorities in support of his contention that for ascertaining the terms of the decree, the agreement dated 4-4-1966 and the award announced by the Arbitrator, can be looked into; and that the controversy in the present case falls under section 47, C.P.C.
41. ' In Bhavan Vaja v. Solanki Hanuji Khodaji Mansang AIR 1972 SC 1371, it was held that an executing Court cannot go behind the decree under execution, but all the same it is the duty of the Court to find out the true effect of the decree. Thus, for construing a decree in appropriate cases, the Court should take into consideration the pleadings as well as the proceedings leading up to decree.
42. ' In Topanmal Chhotamal v. M/s. Kundomal Gangaram AIR 1960 SC 388, it was held that in case of an ambiguous decree the executing Court has power to construe it by looking into the pleadings and the judgment. The Court, for ascertaining as to whether the decree was passed only against one of the defendants and not all of them, was held competent to look into the plaint for construing the terms of the decree.
43. ' In Merla Ramanna v. Nallaparaju AIR 1956 SC 87, it was held that when a sale is impugned in the proceedings of execution of decree on the ground that it is not warranted by the terms of the decree thereof, the question could be agitated only in execution proceedings and not by separate suit.
44. ' In the Rawalpindi Central Cooperative Bank Ltd. v. Raja Muhammad Riaz Khan PLD 1966 Lah. 912, it was held that expression 'relating to execution, discharge or satisfaction of the decree' should be liberally interpreted. The facts of the case were that the decree directed that decree-holder should first realise the decretal amount by sale of goods pledged. The decree-holder sold some of the goods and adjusted towards the decretal amount. Subsequently, the judgment-debtor, adjusted his claim against the security belonging to the judgment-debtor. The judgment-debtor filed objections for refund of the amount which was adjusted out of the security on the ground that the decree should have been first satisfied by selling the remaining pledged goods. It was held that the judgment-debtor was entitled to the refund of the amount of the security deposit. It was further opined that separate suit was not competent and matter could be decided under section 47 of the C.P.C.
45. ' In Qadir Ahmad Siddiqui v. Ramzan All PLD 1977 Kar. 273, it was held that section 47 postulates that all questions relating to the execution, discharge or satisfaction of the decree should be determined by the Court executing the decree and not by the separate suit. It was opined that provisions contained in section 47, C.P.C. And rule 23-A of Order XXI, C.P.C. Are to be read together and not separately. The contention that section 47 should be read and interpreted without any reference to the aforesaid provisions of Order XXI, C.P.C., was tepelled.
46. ' In Muhammad Lal v. Abdul Quddus PLD 1975 Quetta 29, it was held that it is the duty of the executing Court to interpret the decree and to fmd out what the decree has really granted and for this purpose the Courts are entitled to refer to the pleadings and ascertain to what extent the decree can be executed.
47. ' Identical view has been expressed in cases reported as Seth Moti Lal Hirabhai v. Bai Mani AIR 1925 PC 86, Rajes Kanta Roy v. Sm. Shanti Debi AIR 1957 SC 255 and Sm. Gauri Kumari Devi v. Krishna Prasad AIR 1957 Pat.
48. 575.
49. It is evident from the above authorities that in case the decree is ambiguous, the executing Court can look into the pleadings, judgment, award or any other relevant document to ascertain the connotation of the decree which is sought to be executed.
50. ' Now the question for determination is as to whether in the instant case the respondent, in view of the award and decree given in pursuance of the same, is entitled to satisfy the decree by cutting the standing trees. For appreciating the point in its true perspective, it would be expedient to look into the contents of the agreement dated 4-4-1966. Clauses (1) and (2) of the agreement are reproduced as under:-- "1. That Mirza Nazir Hussain Khan, Deputy Commissioner, Mirpur, is appointed to act as arbitrator to calculate the exact quantity of timber that Brigadier Muhammad Aslam Khan is to be allowed to remove from the forest leased to him in the Keran Division. The quantity still lying in the leased forest on the Eastern side of the Cease-Fire-Line only will be considered. (underlining is ours).
2. The quantity of timber allowed to be removed will be the one required to cover only:-
(a) The total expenses incurred by Brigadier Muhammad Aslam Khan in connection with the execution of the lease and extraction of timber still lying in the leased Forest east of the cease-fire line.
51. Plus
(a) The royalty payable to the Government at the agreed rate (Rs,2 per c.Ft.) on the fmal quantity Brigadier Muhammad Aslam Khan will be allowed to remove as a result of the arbitration."
(b) It is evident that under clause 1, the respondent, Brigadier Muhammad Aslam, was to be allowed only to remove the timber to which he was found entitled by the Arbitrator which was lying on the eastern side of the cease-fire line and only the said quantity of the timber was the subject- matter of reference before the Arbitrator. Similarly, under clause (5) of the agreement the respondent withdrew all the claims to the remaining timber which might be left after satisfying his claim. Under clause (10) of the agreement, if the appellant-, Government fails to allow extraction of timber to the respondent from the eastern side of cease-fire line by the end of two years' period beginning from 12th January, 1965, the Government was to give him at his option the quantity of the timber allowed by the Arbitrator from some other workable forests of the Keran Division. The aforesaid stipulations in the agreement clearly envisage that there is no provision in the agreement for felling the trees for the satisfaction of the claim of the respondent; except that in case of the violation of clause (10) of the agreement he might be 'given' timber by the appellant from any other forest of the Keran Division. Clause (10) of the agreement was not subject of consideration in any of the Courts below at the time of passing the impugned orders. Thus, it would be premature at this stage to say as to whether the word `give' used in clause (10) of the agreement, in case of violation of the same, would entitle the respondent to cut the standing trees for satisfying his claim. The question as to whether clause (10) of the agreement can be pressed into service by the respondent would be dealt with in the later part of this judgment.
52. ' For ascertaining the correct connotation of decree, the relevant extracts from the award are reproduced as under:-- At page 2 of the award, the Arbitrator observed as under:- "The lessee asserted that he cut and fell 12,895 trees which were converted into 38,68,500 cit."
53. ' After discussing the expenditure incurred by the respondent and the quantity of the timber which he had already taken away, the Arbitrator, at page 3 of the award, observed as under:-- "....This report is 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."
54. ' Then at the same page it was observed:- "As stated in any of the foregoing paragraphs the total timber extracted by the lessee has been estimated to be 30,00,000 c.Ft. Out of which 1,50,000 is stated to have been brought on this side of cease-fire line. Therefore, the quantity still lying in the leased forest on the eastern side of CFL is calculated to be 28,50,000.
55. ' The finding therefore is that the quantity of the timber still lying in the leased forest on eastern side of CFL is 28,50,000 c.Ft. And the expenditure incurred on its extraction comes to Rs,10,42,528."
56. ' Finally at page 8 of the award, the findings of the Arbitrator are as under:-- "The final quantity of timber allowed to be extracted comes to 11,21,789 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 from January, 1967 it will be 3,36, 537 c.Ft.
57. ' Under this formula the lessee will be allowed to extract 14,58,326 c.Ft. On -2nd January, 1967, and 15,70,505 c.Ft. In January, 1968."
58. ' It is evident from the abovementioned extracts of the award that the Arbitrator, as required by the terms of the reference, only dealt with the timber which was lying on the eastern side of the cease- fire line and he found that respondent was entitled to extract the timber out of the said stock measuring 28,50,000 c.Ft. Which was lying on the eastern side of cease-fire line. There is not an iota of indication in the award that the quantity of the timber which the respondent was found entitled to extract could be obtained by felling the trees.
59. ' There have been lengthy arguments at bar regarding the meaning of the Word 'extract' appearing in the award. The learned counsel for the appellant contended that word 'extract' implies only to take away the timber or transport the same from the relevant forest, whereas the learned counsel for the respondent maintained that the aforesaid word also means to 'cut down or to fell the standing trees. According to Black's Law Dictionary, the word 'extraction' means 'to draw out or forth; to pull out from a fixed position'. According to Chambers Twentieth Century Dictionary, the word 'extract' means 'to draw out F by force or otherwise; to choose out or select; to find out; to derive etc.'. According to the Technical Dictionary by Howard H. Gerrish, the word 'felling' means the 'process of cutting down a tree'.
60. ' It is pertinent to note that the words 'felling' or 'cutting' in context of trees have neither been used in the agreement dated 4-4-1966 or in the award. If we consider the connotation of word 'extract' in view of its discretionary meanings in context of the contents of the agreement and award, there remains no doubt that the said word has been used in the sense of transporting the timber from the eastern side of the cease-fire line; because the agreement and the award do not visualise at all that the respondent was entitled to satisfy his claim by felling the trees from the compartments 10 (b) part and 12. We are fortified in our view that word 'extract' has been used in the sense of transporting the trees by the treatise on the subject dealing with the forest matters. In book entitled the Forester's Companion, Third Edition by N.D.G. James, at page 158 the word 'extraction' has been defined as under:-- "Extraction is the process of removing timber, thinning of firewood from the growing site in the wood to a point where the material is either loaded on to vehicles or is piled or stacked prior to removal or conversion."
61. ' In book entitled 'A Handbook of Forest Utilization' by Tribhawan Mehta, at page 37, 'extraction' has been defined as under:-- "Timber extraction is pre-eminently and fundamentally a problem of transportation and moving bulky and heavy products of the forests, logs and converted timber from the forest to the saw mill for further conversion or the ultimate markets."
62. ' The perusal of the relevant text book also reveals that trees are first felled and are then converted into timber, i,e,, logs etc. And the third stage is extraction, i,e,, the same are transported away from the site. Thus, we having no hesitation in holding that the word 'extract' in the award has been used in the sense of transporting the timber which had already been converted into logs and were lying on the eastern side of the cease-fire line and not cutting away standing trees.
63. ' The learned counsel for the respondent has also argued that the appellant cannot withdraw the admission made by the Chief Conservator of Forests vide his letter dated 4-11-1985, whereby the respondent was allowed to satisfy his decree by felling the trees. The aforesaid letter which was written by the Chief Conservator of Forests has already been dealt with in the question of estoppel.
64. It may be stated here that the proposition that the principle of locus penitential is not exercisable if the effective step has been taken in pursuance of relevant regulation, order, rule or bye-law etc., is not applicable in the instant case because the letter written by the Chief Conservator is not an order. It merely states:- {{URDU TEXT}} ' Even if the letter is regarded an order, the same being against the terms of decree and without jurisdiction, is of no legal consequence. The Chief Conservator of Forests was neither a party to the agreement dated 4-4-1966, nor he could make any such communication on behalf of the judgment-debtor, i,e,, the Government. Assuming for the sake of arguments that he would be deemed to be a party in the execution proceedings, the aforesaid letter written by the Chief Conservator would not help the respondent unless it is shown that the Chief Conservator had the authority to make such a communication on behalf of the Government in derogation to the terms of the decree or the award. An order made without jurisdiction or in derogation to law cannot be availed of on the ground that as the same has been acted upon, it cannot be rescinded or withdrawn. Thus, the authorities cited by the learned counsel for the respondent, i,e,, Pakistan v.
65. Muhammad Himayatullah Farukhi PLD 1969 SC 407; Shahbaz v. The Crown PLD 1956 FC 46 and Lt.- Col. G.L. Bhattacharya v. The State PLD 1963 Dacca 422 are not applicable to the case in hand.
66. ' The next question which needs determination is as to whether clause 10 of the agreement dated 4-4-1966 has been pressed into service in the executing proceedings. It has been already pointed out that this aspect of the case has not been dealt with by any of the Courts below. Thus, the same cannot be permitted to agitate at this stage. However, irrespective of the fact as to whether the said clause can be resorted to in the execution proceedings, the same can possibly be relied upon if first it is shown that the Government did not allow the respondent to extract the timber from the eastern side of cease-fire line without any fault on the part of the respondent. This is a question of fact; had the respondent raised it before the executing Court, it would have determined the same.
67. The next question which would fall for determination is as to whether the provisions of clause (10) of the agreement can be pressed into service in execution proceedings when the same were neither made the subject of reference to the Arbitrator nor it finds place in the award or in decree passed by the High Court.
68. ' The shows that the first choice of the respondent was for the satisfaction of the decree out of compartments 10 (b) part and 12. Had it been the case of the respondent that he was entitled to satisfy the decree by felling the trees from compartments 30, 31 and 32 as the Government did not allow him the extraction from the compartments 10 (b)- part and 12, he would not have chosen compartments 10 (b) part and 12 as his first choice. Because in case of eventuality stipulated under clause (10) of the agreement, if at all the said clause can be resorted to, the decree would be satisfied not from the aforesaid two compartments but only from any other workable forest of Keran Division. It has not been averred in application for execution that the decree-holder was entitled to exercise option of some other forest because he was not allowed to extract the timber from compartments 10 (b) part and 12.
69. ' The learned counsel for the parties have also addressed arguments as to whether in the instant case the agreement would be deemed to have been frustrated. The question of frustration of the agreement is beyond the scope of the present proceedings because the present proceedings deal with the execution of the decree passed on the basis of the agreement and not as to whether the contract had become void or not. However, such a question may become relevant if the question of the applicability of clause (10) of the agreement falls for determination before the executing Court.
70. ' The upshot of the above discussion is that we accept the appeal, set aside the impugned orders of the Courts below and hold that the respondent is not entitled to fell the trees for the satisfaction of the decree passed in his favour. In view of the circumstances of the case, no order is made as to the costs.