CH. IJAZ AHMAD, J.-- Both the Civil Revision Petitions Nos. 675/91 and 676/91 are disposed of through this consolidated judgment as these arise put of the same judgment and decree dated 30.10.1991 passed by the learned Additional District Judge, Dera Ghazi Khan.
2. The brief facts out of which C.R. No. 675/91 arises are that respondent and one Fazal Khan filed a suit for possession against the petitioner in respect of Ahaia measuring 5 marlas situated in Mauza Qaimwala having Khewat No. 80/168, Khutuni No. 150. Khasra No. 3/3 in Tehsil and District D.G. Khan.
3. The learned trial Court after completing all the legal formalities decree the suit vide judgment and decree dated 3-6-1976 which was upheld by this Court and the revision petition was dismissed on 20-5-1984. The petitioner alleged that the decree-holder received a sum of Rs.
22500/- from the petitioners against the above-mentioned decree with the assurance that the execution proceedings shall not be initiated. Subsequently the decree-holders changed their mind on 18-1-1996:tiled execution petition. The petitioners filed objection petition, along with preliminary objections including the plea of limitation that execution petition is liable to be dismissed as time- barred. The decree-holders filed reply to the objection petition, the trial Court finally dismissed the objection petition vide its order dated 13-3- 1986.
4. The petitioners aggrieved by the order of trial Court dated 3-3-1988 filed an appeal before the learned District Judge which was entrusted to Additional District Judge II, who dismissed the same vide order dated 30-10-1991; hence the present revision petition.
5. The brief facts of C.R. No. 676/91 arises are that the respondents and one Fazal Khan filed a suit for possession against the petitioner regarding the above-mentioned Ahata before the Civil Judge, D.G. Khan. The suit was decreed on 3-6-1976. The judgment and decree of the trial Court was finally upheld by this Court vide judgment dated 20-5-1984. Subsequently decree-holder received a 'sum of Rs. 2500/- from the petitioners qua the decree and assured that the execution proceedings shall not be initiated but the decree-holders changed their mind and filed an execution application on 18-1-1986. As mentioned above, the petitioner filed objection petition that the execus ion petition is liable to be dismissed in the ground of limitation. The petitioners also filed a suit for declaration to the affect that the defendant in the suit/decree-holders having received the price house, in satisfaction of the decree, was not entitled in executjon. The petitioners on purchase of the said house had become its owner and no decree against them can be executed. Subsequently Fazal Khan-defendant No. 4 died and his legal heirs were brought on record. The defendants filed written statement, contested the suit and raised different preliminary objections. The trial Court framed the following: ISSUES.
1. Whether the suit is against deed persons if so. Its effect? OPD
2. Whether the suit cannot proceed further in view of objection raised in preliminary Objection No. 2 of the written statement? OPD
3. Whether the suit is bad and cannot proceed further in view of preliminary Objection No. 2 of the written statement? OPD
4. Whether the defendants are entitled to recover special costs under section 35-A CPC? OPD
5. Whether the suit is barred by section 11 CPC? OPD
6. Whether the plaintiff is owner in possession of the suit property? OPP
7. Whether the defendants have received Rs.2500/- from the plaintiff and have satisfied their property? OPP
8. Relief.
5. On 18-12-1989 respondent No. 1-Mulazim Hussain and respondents No. 4-A to 11 stated that, the matter has been amicably settled on the basis of the compromise arrived at between the parties which was placed on record Exh. CIJ before the Court and the case was finally decided between the parties on 18.12.1989 and the operative part of the order is reproduced hereunder: ((Urdu Text))
The respondents were aggrieved by the judgment and decree dated 18-12-1989 filed an appeal before the learned District Judge, D.G. Khan, who entrusted the same to learned Addl. District Judge II, D.G. Khan who vide its judgment and decree dated 30-10-1991 set aside the decree of Civil Judge and case was remanded for fresh decision on merits qua defendants Nos. 2 to 3-H; hence the present revision petition.
6. The learned counsel for the petitioners in both the revision petitions contended that without framing the issues and without recording any evidence the objection petition was rejected by both the Courts below without applying their mind in violation of the mandatory provisions of law. He relied upon "Ghulam Qadir v. Haji Munir Ahmad" (NLR 1989 Civil 717). It is further contended that petitioner has purchased right of decree-holders in consideration of Rs. 2500/- and filed suit for specific performance and declaration with consequential relief which was finally compromised by some of the defendants, therefore, petitioners becomes owners of the Ahata qua the share of the decree-holders who had executed a compromise between the petitioner and consequently decree was passed in favour of the petitioners but the learned 1st Appellate Court did not consider this aspect of the case in true perspective. He further argued that on account of the subsequent decree by the trial Court in favour of the petitioners have become automatically owners in the join) khata lying under the foot prints of the decree-holders, who surrendered their rights in their favour. He further argued that the view taken by the 1st Appellate Court that possession of Ahata must be physically handed over to the decree-holders and thereafter possession should be taken on the basis of subsequent sale and decree is not in accordance with law declared by the Supreme Court reported as (1982 SCM R 90). He argued that suit qua the respondents is withdrawn simpliciter, therefore, the respondents are not aggrieved and had no locus standi to file the appeal before the 1st Appellate Court. He further argued that the dispute between the parties is relating to Ahata measuring 5 marlas; whereas decree-holders who had executed a compromise with the petitioners their share is 7 marlas, therefore, execution proceedings become infructuous automatically. The respondents have only remedy to file a suit for partition as the petitioners have become decree-holders lying under the footprints of the decree-holders who surrendered their rights in favour of the petitioners. He finally concluded that judgment of the learned Additional District Judge is non-existence in the eyes of law and is result of misreading or non-reading of the record, without applying its mind towards real controversy between the parties and he relied upon: (1986 CLC 2600); (NLR 1989 Civil 717); (1979 CLC 829) and (P.L.D. 1976 S.C. 785).
7. The learned counsel for the respondents contended that judgments of the learned 1st Appellate Court is valid in accordance with law declared by the Supreme Courts. In fact the judgment of the leamed 1st Appellate Court came to a right conclusion after appreciation x>f the evidence on record, therefore, revision petitions are liable to be dismissed. He further argued that the petitioners cannot withdraw the suit in the absence of the respondents is the valuable/vested rights accrued to them, therefore, decree would become frustrated by the withdrawal of the suit qua the respondents. He further argued that trial Court cannot go beyond the decree. He further argued that the petitioners mala fidley executed a compromise with other respondents in their absence to frustrate the decree which is final between the parties, therefore, objection petition as well as independent suit were filed mala fidley to frustrate the decree, therefore, the trial Court can dismiss the execution petition when it was filed mala fidley in a summary manner. He relied on (P.L.J. 1984 Lahore 326).
8. I have given my anxious consideration to the contentions of the leamed counsel for the parties and perused the record myself. It is admitted fact that the judgment and decree passed by the competent Court in the first round of litigation dated 3.6.1976 is final between the parties as the same was upheld by this Court in revision petition and the petitioners did not challenge the same before the Hon'ble Supreme Court of Pakistan, therefore, it is final and biding upon the parties as held by the Supreme Court of Pakistan (P.L.D. 1987 S.C. 145). It is also admitted fact that respondents and Fazal Khan jointly filed suit in which the competent Court passed the decree and judgment in favour of them on 3-6-1976 meaning thereby respondents and Fazal Khan i.e. Legal heirs of Fazal Khan are the joint decree- holders. It is the prerogative of the share holders joint decree-holder to sell this share before the Execution of the decree. The respondents could not stop him under any canon of justice and any principle of law. They are owners of the decree, therefore, they are free under the law to sell the same or retain the same. In view of the circumstances petitioners are bona fide purchasers of a share of the decree- holders i.e. Fazal Khan or his legal heirs. In view of this they are entitled to file suit before the competent Court on the basis of agreement between petitioners and respondent No. 4 Fazal Khan. They did not challenge the decree but they have filed the suit on the basis of the agreement which was finally compromised qua the share of the defendant No. 4/legal heirs of defendant No. 4. Under Order 2, Rule 1 CPC the plaintiff is entitled to withdraw his suit simpliciter. Neither the Court nor the respondents can stop them from withdrawing the suit. The learned 1st Appellate Court did not consider this aspect of the case. "The order has two parts i.e. Simplicitor withdrawal qua the respondents and the suit was decreed qua the defendant No. 4/legal heirs of defendant No. 4." This portion of the judgment of the learned Additional District Judge is set aside and upheld the judgment and decree dated 18-12-1989. It is also admitted fact that the leamed trial Court without framing issues dismissed the objection petition of the petitioner and the leamed 1st Appellate Court did not apply its mind towards this aspect of the case. The petitioners are well within their rights to file the objection and the trial Court has to decide the same after framing the issues, therefore, both the Courts below did not apply their mind towards this aspect of the case, therefore, revision petitions are accepted and the case is remanded to the Executing Court to decide the objection petition after framing the issues.
9. In view what has been discussed above C.R. No. 676/91 is accepted and the case is remanded to the trial Court in terms mentioned above and C.R. No. 675/91 is accepted with no order as to costs.