The brief facts of the case are that the present appellant Raja Shah Zaman, filed a civil suit in the Court of Civil Judge, Gupis against the present respondents. During the pendency of the suit the parties agreed to refer the matter for arbitration and accordingly the matter was referred to the arbitrators appointed by the parties. The arbitrators after consideration submitted their award on 30-8-1983 before the Civil Court Gupis. The trial Judge asked objections against the award. The present appellant filed objections against the award which were rejected by the Civil Judge and he cannot succeed right to the Court of Judicial Commissioner and the award which was made rule of the Court by the Civil Judge become final.
2. When the first round of litigation was exhausted the present appellant filed a fresh suit against the respondents before the Civil Judge Gupis on 24-2-1991. The suit was filed for declaration with consequential relief for possession. The said suit was decided against the appellant, then he filed the present execution application. The respondents filed objections which were turned down by both the Courts below. Hence this appeal.
3. I have gone through the record of the case and have heard the learned counsel for the parties at length. Admittedly the decree under reference is based on award and the arbitrators have simply determined the rights of the parties in respect of the disputed land. The appellant who was himself plaintiff in the litigation had filed a suit which was purely for declaration with consequential relief for permanent injunction. There was absolutely no prayer for possession The arbitrators accordingly passed award in which only rights of the parties were determined and no decree for possession was awarded in favour of the plaintiff or defendants. The main contention of the learned counsel for the appellant was that the declaratory decree based on the award of the arbitration is not executable and on this basis the decree-holder cannot claim the possession.
They relied on the following case-laws:---
(1) PLD 1963 SC page 265.
(2) PLD 1973 Karachi page 686.
(3) PLD 1968 SC page 342.
(4) PLD 1985 Karachi page 705.
It is held in these case-laws that the decree should be executed in spirit of its terms and conditions and not in derogation of such terms the executing Court neither to go behind of what decree stands for nor it to modify those terms.
4. The remedy which is neither claimed in the suit nor granted either by the arbitrator or by the Court cannot be executed during the execution proceedings because the executing Court cannot grant a remedy which is not in the decree. The only remedy for the appellant was to file an independent suit for possession. He did it but the same was rejected by the Trial Court. He can again seek such remedy if the remedy is available for him.
5. The appellant in his application for execution has claimed that he was in possession of the land in dispute but subsequently he was dispossessed. This fact although is not brought on record, if true it also supports for a fresh suit not for the possession through execution of a declaratory decree.
6. I, therefore, in the light of the above discussions accept this appeal and set aside the orders of both the Courts below and dismiss the application of the appellant for execution. Parties to bear their own costs.