Suit No. 1160 of 1982 (now No.2980 of 1986) was decided by judgment-dated 26-5-1987. Earlier to that, Mr. Haji Amir Ahmed Khan, Advocate, learned counsel for the defendant, had filed a statement in the Court on 14-1-1987 pleading no instructions to contest the suit. The plaintiff Muhammad Yousuf Qureshi (now respondent in those proceedings) had already closed his evidence on 29-7- 1986 and in view of this statement of 14th January, 1987, evidence of the defendant (applicant in the present proceeding) had also been closed and the matter was adjourned for arguments and thereafter the suit was decreed vide judgment dated 26-5-1987. The decree was prepared on 29- 7-1987 and thereafter the respondent/decree-holder filed Execution Application No. l of 1988. In this execution application, the applicant/judgment-debtor filed objections on 10-3-1988 and he again filed objections on 14-5-1988. These latter objections were in respect of application under section 151, ,C.P.C. Dated 27-1-1988 moved by the decree-holder. All these objections were disposed of, by the learned Executing Court vide order dated 29-5-1988 and were rejected and it was held that the defendant/judgment-debtor (the present applicant had not preferred any appeal against the judgment and decree and the objections could not be reconsidered (since they were same which had been earlier taken in the written-statement) and that the judgment and decree had attained finality and further that the Executing Court could not go behind the decree against which no appeal or revision had been filed or even review sought and, as a consequence of the dismissal of the objections, writ of possession was ordered to be issued and the defendant/J.D. Was further directed to be imprisoned for three months for violating injunction order. The defendant/J.D. Then filed an appeal against the order, dated 29-5-1988 (Civil Appeal No.82/88 of the Court of IInd Additional District and Sessions Judge, Karachi (South). Learned IInd Additional District and Sessions Judge, Karachi (South) dismissed this appeal vide judgment dated 16-8-1989. The defendant/J.D. Through this revision application challenges both of them (the order, dated 29-5- 1988 passed by the Executing Court and the judgment dated 16-8-1989 passed in appeal by the IInd Additional District and Sessions Judge, Karachi ;(South). Learned counsel of the parties have been heard.
2, Learned counsel for the applicant referred to para. 3 of the plaint in which it was stated that the plot in question was evacuee trust property which was under the control of Custodian of the Evacuee Trust Board and then he referred to section 9 of Evacuee Trust Properties (Management and Disposal) Act, 1975, which provides that no evacuee trust property shall be liable to be proceeded against for any claim in any manner whatsoever in execution of any decree or order or by any other process of Court or other authority. Learned counsel also referred to section 14 which provides Bar of Jurisdiction, section 21 which defines the power of the Chairman of the Evacuee Trust -Property Board while acting as a Civil Court, section 22 which provides for penalty for concealment of Evacuee Trust Properties and to section 25 which provides for the ejectment of an authorised person, at the instance of the Chairman or Administrator, a Deputy Administrator or an Assistant Administrator, whose possession or occupation is not authorised under any of the provisions of this Act or who contravened or may have contravened any of the terms and conditions under which the property is held by him or who has failed to pay public dues or has wilfully caused damage to any such property. It was then, argued by the learned counsel that in view of these provisions of law the suit itself was incompetent and should have been dismissed.
Learned counsel then referred to the judgment reported in PLD 1952 Lah. 77 Hatim v. Shah Din in which it is held that the penalties involved under Rule 2(3) of Order XXXIX, C.P.C. Are of a criminal nature and notwithstanding that no precise procedure had been laid down in that regard, it was expected than any Court which found itself called upon to impose these penalties should proceed as nearly as possible in the same manner as a Criminal Court would proceed. It was further explained that in this view of the matter it was incumbent upon the Court. To put the person at fault on his guard by framing a question or as an issue which should embody all the elements of a charge under the criminal jurisdiction and thereafter it should be put to such person and no order of imprisonment or attachment could be passed unless such person is provided opportunity to show cause against such punishment. He then inferred to the judgment in cases reported as PLD 1961 SC 192, Islamic Republic of Pakistan v. Muhammad Saeed and OLD 1968 Kar. 758, Muhammad Latif Khan v. Mst. Nayab Begum. In PLD 1961 SC 192 it was held that question relating to the executability or order or decree can be raised even in execution proceedings and it is open to the party against whom an order or decree is sought to be executed to show that it is null and void or had been made without jurisdiction or that it was incapable of execution. In the abovementioned Karachi judgment it was observed that objection as to the execute ability of a decree can be raised before the Executing Court. Learned counsel of the respondent, on the other hand, argued that the property in dispute was hidden Evacuee Property and Deputy Settlement Commissioner was examined as P.W. To clarify the status of the property in dispute and it was further stated by him that the plaintiff/respondent was only claiming possession of the disputed property and he had not raised any question of title in respect thereto. Learned counsel then referred to the evidence of P.W.2 Imran who is step-brother of the applicant who testified to the existence of an agreement between the parties although he could not give any details of the said agreement. It was further pointed out that an issue as to whether, under the circumstances of the case, the applicant/J.D., should be arrested or not was framed and evidence was led in respect thereof and thus the impugned order and judgment were both not hit by the observations made by the Court in the judgment reported as PLD 1952 Lah. 77 and that if the applicant/defendant opted not to lead any evidence, it was his outlook and such failure of applicant/defendant could not come into the way of the property of the two impugned decisions. He relied on the judgment in the case of Muhammad Saleem Khan Yousuf Zai v. K. Mohiuddin 1968 SCM R 557 in which it is held that when the Court, with the consent of the parties, orders maintenance of status quo in respect of the suit property and yet the defendant in violation of the undertaking given to the Court parts with the possession and rents out the property to a third party, then the Court is competent under Order 39, rule 2(3) to order the detention of the defendant in Civil Jail for deliberate contravention of the undertaking.
3. 1 have taken into account the facts of the case and the law upon which learned counsel of the parties have relied. I am of the considered view that judgment dated 26-5-1987 in Suit No.1160/82 (now No.2980/85) was fully contested judgment. It was the old prerogative of the applicant/defendant to lead or not to lead evidence in the suit and he elected not to lead any evidence. The statement-dated 14-1-1987 of his learned counsel (which is available at page 117 of the R & P) leaves no room to doubt this petition. This judgment was, therefore, a valid judgment based upon evidence. It was open to the applicant/defendant to challenge this judgment before the Appellate Court but again, applicant/defendant chose not to file any appeal against it with the result that this judgment became final. The applicant/defendant has not disclosed any new fact in his objections in the execution application. These objections are the same which were taken by him in the written statement and which has been considered in the judgment dated 26-6-1987. I am also of the view that learned counsel for the applicant has incorrectly relied upon the provisions of Evacuee Trust Properties (Management and Disposal) Act, 1975. Section 9 example Evacuee Trust Properties from the process of any Court and provides that such property is not liable to be proceeded against for any claim in execution of a decree or order of any Court. However, the respondent/plaintiff was not proceeding against evacuee trust property. He was proceeding against the applicant and he was entitled to seek a declaration that he, being in possession of the disputed property, had a right to continue to remain in peaceful possession thereof and the applicant/defendant was not entitled to occupy it illegally. It was a simple suit for declaration and injunction and was not hit by any of the provisions of Evacuee Trust Properties (Management and Disposal), Act, 1975. 13 If the applicant, defendant felt aggrieved from the judgment of the learned Trial Court, it was open to him to challenge the same by way of appeal. Having failed to challenge the same at the appropriate time, he kept on sleeping over the matter until the filing of the execution application when he came forward with objections which, in effect, are the reproduction of his written statement. The learned Executing Court and the learned Appellate Court, therefore, rightly I dismissed the same. It is an established principle of law that an Executing Court C cannot go behind the judgment and decree sought to be executed. Two judgments out of a list of many in support of this view are 1969 SCM R 275 Kazi Abdul Kadir v. East Pakistan Provincial Cooperative Bank and 1972 SCM R 237, Syed Riaz Ahmad Shah v. Dayal Singh College Trust, Society. It is an admitted position that the respondent was in possession of the disputed premises and an order of status quo with respect to the possession was enforced when the applicant/defendant violated the said order and forcibly obtained possession of the disputed property. An issue in this respect having been framed by the Court, the applicant/defendant was put on his guard to place his defence before the Court and I agree with learned counsel for the respondent that, under the circumstances, the judgment dated 26-5-1982 does not violate the law laid down in PLD 1952 Lah.
77. Reliance placed by the learned counsel for the applicant on the other judgments mentioned above is also misplaced. I would, therefore, uphold the order, dated 29-5-1988 and the judgment dated 16-8-1989 passed by learned IInd Additional District and Sessions Judge, Karachi (South) in Civil Appeal No.82/88 upholding the order dated 29-5-1988. This revision application is accordingly dismissed, leaving the parties to bear their own costs.