MIAN ALAH NAWAZ J:-This revision petition is filed by Islam-Ud-Din-the judgment debtor against the order of the learned Additional District Judge, Sargodha dated 3.2.1988 whereby the learned Additional District Judge dismissed the appeal filed against the order of the learned Civil Judge, Sargodha dated 20.12.1982 dismissing an application for the restitution of disputed property.
2. A few facts relevant for the disposal of this petition are; that Manzoor Hussain filed a suit for possession on the basis of superior right of pre-emption against a sale. Effected through a compromise deed incorporated in the decree dated 18.11.1979. The suit was decreed in favour of pre-emptores on 20.12.1982. The appeal against the decree dated 20.12.1982 failed before the first appellate court, before the High Court as well as before the Supreme Court.
3. The decree-holder filed an application for execution on 27.1.1983. On 17.6.1986 a warrant of possession was issued by which the Girdawar delivered the constructive possession of the property in dispute to the decree-holders on 22.6.1986. An application was given by Allah Nawaz on 1.9.1987 for delivery of actual physical possession. The Executing Court vide an order dated 1.9.1987 accepted the application and issued a warrant for actual physical possession on 2.9.1987. The Girdawar Halqa ( Urdu Text) submitted a report on 13.9.1987 that the execution stood finalized ; that the decree was with respect to joint possession. The learned Civil Judge took the reporting Girdawar to task and on 13.10.1987 the court directed that the delivery of actual possession be given to the decree- holders. Accordingly the Girdawar this time complied with the order of the Executing Court and delivered the actual physical possession of the disputed property to the decree-holders on 21.10.1987.
4. Faced with this situation, the petitioner instituted an application for the restitution of the possession and for payment of damages amounting to Rs. 1.16,300/-. This application was given on 14.1.1988. The application was given on 14 1.1988. The application was contested. Without waiting for any order on this application the petitioner Islam-ud-Din filed appeal before the learned District Judge Sargodha against the order of the Executing Court dated 15.11.1987 on 23.1.1988; that the learned counsel for the appellant (herein petitioner) made a statement to the effect that his objection petition was still pending before the Executing Court; that he did not want to prosecute this appeal. Accordingly this petition was dismissed as having been given up, by the learned District Judge, Sargodha. This happened vide an order dated 3.2.1988 which is Annexure 'E' on the record of this petition.
5. Learned counsel for the petitioner submitted that the initial decree for possession date 20.12.1982 pertained to joint possession, therefore, the Executing Court had no authority to issue warrant of delivery of actual possession; that he was the tenant of the land and so could be physically evicted through the process of execution. Reliance was placed on Durga Devi Vs. Hans Raj and others (AIR 1930 Lahore 187), Lakhu Motiram and others. Vs. Radhabai Mulchand Ramnaravan (A.I.R. 1952 438), Merla Ramanna Vs. Nallaparaju and others (A.I.R. 1956 S.C. 87), Sunahar Ali and others Vs. Muhammad Akuali and others (PLD 1957 Dacca 603), Muhammad Inayat Vs. Ghulam Murtaza (PLD 1987 Lahore 537) and The Telephone Employees Cooperative House Building Society Ltd. Vs Aish Muhammad. (1987 C.L.C. 207).
6. I have heard the arguments of the learned counsel for the petitioner in length and examined the record with minutest care.
7. The petition has been filed against the order dated 3.2.1988. It is to be noticed that the first appellate court did not pass any order. The learned counsel for the petitioner made a statement to the effect that he never wanted to prosecute this appeal as his objection petition was pending before the Executing Court.
8. In the context of this statement the learned Additional District Judge dismissed the appeal as having been given up. The act of the Advocate is binding upon the parties, therefore, the petitioner is completely precluded to question this order which was passed at has own initiative. On this ground this petition is completely mis-conceived and the submissions of the learned counsel are totally un-tenable.
9. Even otherwise the petition had no merit. The submissions made by the learned counsel centres round his argument that initial decree was in respect of joint possession; that already the execution proceedings stood finalized and the Executing Court had no authority whatsoever to issue the warrant of possession for delivery of actual possession.
10. These submissions arc factually as well as legally incorrect. It is to be noticed that in decree the suit pertains to a relief for possession in respect of 121^ kanals in khewat No. 1, khatuni No.16 to 65 in accordance with the jamabandi relating to the year 1974-75. The Girdawar in the first instance delivered the constructive possession while later on the learned Executing Court issued a warrant for actual physical possession which was complied with.
11. The similar question came up for consideration in Muhammad Inayat Vs. Ghulam Murtaza (PLD 1987 Lahore 537). Repelling the contention that second application for execution was not competent, it was laid down:- "The only question which remains to be dealt with now is whether the application dated 2.9.1981 was barred in law and was hit by the rule prohibiting second execution application? It may be observed, in the first place, that the bar against such an application is not absolute and is plainly not applicable to a case where the proceedings on the original application remained deficient and inchoate as in the instant case, and in the second place the application dated 2.9.1981 cannot be validly described as a fresh formal execution application nor was it purported to be so. In fact, in the attendant circumstances of the case, it was a continuation of the original application proceedings in which were misdirected on account of some confusion/mistake on the part of the Executing Officer namely Girdawar. The execution under the original application was deficient and remained to be perfected for which a motion could be made to the concerned court as the delivery of symbolic possession in the first instance by the Girdawar was not on the request of the decree holder who had in the execution application prayed for possession in pursuance of the decree. It was therefore, for the court and the executing official to have seen what the' decree intended. If for actual physical possession symbolic possession was only delivered it was a wrong done by the Court/official concerned for which the decree holder could not be made to suffer.
Whether such an application is competent and could be made by a decree-holder is also inferable from the judgment cited by the learned counsel for the petitioner himself viz A.I.R. 1931 Cal.427 wherein it has been held that if the symbolic possession which has been given to the decree holder was not sufficient and the decree holder complained that he was entitled to actual physical possession under the decree he would be perfectly within his right to come to the Court for having his remedy although in the attendant circumstances of the cited case on account of some ulterior motive of the decree- holder the second application was held to be not competent. There can, therefore, hardly be any doubt that in such a situation the court is not only empowered but is also bound to undo or rectify its mistake or mistake of an officer of the court to avoid miscarriage of justice."
12. I am in complete agreement with the view taken in the authority. The contentions of the learned counsel for the petitioner are therefore, found to be without any merit. Accordingly this petition is dismissed in limine.