1. Granted 2, Granted subject to all just exceptions
3. This revision application .Has been filed challenging the concurrent findings of the two Courts below.
1. Briefly the facts are that the present applicants had filed a suit for declaration and possession, which was decreed on 5-3-1981. This decree was affirmed by the VIIIth Additional District Judge, Karachi in Civil Appeal No.163 of 1981. The judgment of the appellate Court was challenged before this Court in Revision Application No. 45 of 1993. The said revision application was also dismissed and thus the decree passed in the suit acquired finality. The decree-holders then filed the .
2. Execution Application being Execution Application No.5 of 1992. The J.Ds. Filed their objections and also an application under section 12(2), C.P.C. Before the Executing Court. The Executing Court vide orders passed on 4-11-1993 allowed the Execution Application and ordered writ of possession be issued. This order was challenged before the District Judge, Karachi (East) in Civil Miscellaneous Appeal No. 64 of 1993 which was dismissed. Being aggrieved, the present applicants have filed revision application.
3. I have heard Mr. S.M. Saeed, the learned counsel for the applicants. The contentions raised by the learned counsel are that the Executing Court did not decide the objections filed by the present applicants and directed the writ of possession be issued without any notice to the applicants. He has further submitted that in his objections he had raised the contention that the plots in possession of the present applicants are not the same as mentioned in the decree. He has, therefore, submitted that this is a fit case where the District Judge should have remanded the matter to the Executing Court with the direction to decide the identity of the plots by allowing them to lead evidence.
4. In the first instance it may be pointed out that the application under section 12(2), C.P.C. Was not maintainable before the Executing Court as the matter has already reached the level of the revision application before the High A Court. It may also be pertinent to reproduce the operative part of the order of the District Judge which reads as under:--- "It is settled law that the Executing Court cannot go behind the decree. The objection raised has already been decided against the appellants/J.Ds. Under Issues Nos.1 and 4. The findings of the trial Court on Issue No.1 are that the plaintiffs (Decree-holders) are the lessors of sub-divided of the Plots NosA/21 to A/25 situated in Deh Drigh, Karachi of Survey No.197. The findings on Issue No.4 are that the Defendants had purchased the Plots Nos.833 and 834, situated in Drigh Colony, Azimpura of Survey Nos.200 and 201. Thereafter, the Housing Corporation intimated that there was some mistake in allocation of survey and correction was made by Housing Corporation and survey number was changed from 200 and 201 into 197. Further, it was admitted by Ghulam Hussain Brohi the defence witness from Housing Corporation that the correction was made in the year - 1975 and the correction was made much after the lease deed in favour of Plaintiffs. He further submitted that he had no knowledge of location of plots at the time of allotment. From this it can safely be concluded that this Housing Corporation had no approved plan before them at the time of allotment of plots, as such the persons allotted plots were not put in possession of their respective plots. As against that M/s. Jewels Corporation had approved lay-out plan and plots were allotted in accordance with the lay-out. Plan."
5. The above order shows that the point with regard to identity of plots has already been decided in the revision application before this Court and the Executing Court or the District Judge could not have found contrary to the same nor they could have entered upon an enquiry with regard to the same. As regards the contention that the District Judge should have remanded the case with the direction as prayed, it may be observed that under section 107 of the Civil Procedure Code the appellate Court can exercise the same powers as that of the lower Court and decide the matter conclusively. In the present case the order of the District Judge shows that he has also taken into consideration the contention raised in the objections with regard to identity of the plots and decided the same in view of the earlier judgments concluded with the judgment passed by this Court in revision application. The other contention raised by the learned counsel is that there was no service of notice. The learned counsel at the Bar has stated that the ,party was represented by Lady Advocate and notice was served on her but she stated that she had returned the papers to the party concerned. In these circumstances, it was obligatory upon the said Lady Advocate to have either given such notice to her clients or to have sought permission of the Court about withdrawal of her Vakalatnama. However, the order of the District Judge shows that the notice though issued could not be served on the parties as they have left the premises. It may be observed that a notice issued on given address, if not, served on account of shifting away of the party without intimating the, new address to the Court would be only to disadvantage of the party.
6. It would not be possible for any Court to go on looking for the whereabouts of the party who shifts away from the given address without notifying the Court.
7. In .View of the above discussion find no substance in the revision application which is dismissed summarily.
8. 4 and 5: Dismissed as infructuous,