This revision petition is directed against the judgment passed by Chaudhry Asad Raza, learned Additional District Judge, Rawalpindi, dated 26-5-1997 whereby accepting the appeal titled as Bashir Ahmad v. Abdul Khaliq and others, the order passed by the Executing Court, dated 16-5-1992 was set aside with a direction to 'issue warrant of possession in favour of Bashir Ahmad appellant and also in favour of Abdul Khaliq respondent and to manage for each share being separated and decree be satisfied according to the terms of title settled/declared therein.
2. Some relevant facts for the disposal of above mentioned revision petition are that the suit-land agricultural in nature comprising of 9 Kanals and 9 Marlas was originally owned by Fazal Khan son of Makhan Khan. On the death of Fazal Khan in the year 1936 since deceased was governed by the customs in the matter of inheritance the inheritance was transferred in favour of his survived widows named Mst. Kalo and Mst. Dewan Bibi as limited owners. Fazal Khan was also survived by two daughters named Mst. Munawar Jan and Mst. Fazzal Jan out of Diwan Bibi. Mst. Kalo sold her share out of the suit land vide registered sale deed, dated 28-2-1962 in favour of Bashir Ahmad. On the other hand Mst. Diwan Bibi, Munawar Jan and Fazzal Jan relinquished their rights in the suit land vide registered deed, dated 17-8-1958 in favour of Abdul Khaliq brother of Fazal Khan. Abdul Khaliq filed a civil suit on 28-5-1962 in order to seek declaration that the sale executed by Mst. Kalo was void and ineffective and also asserted the relinquishment of the rights by Mst. Dewan Bibi etc. In his favour. This suit was contested by Mst. Kalo whereas Mst. Dewan Bibi and her two daughters admitted the claim of Abdul Khaliq but, later on, when Muslim Personal Law (Shariat) Application Act, 1962 was promulgated, an amended plaint was filed to convert the suit for declaration to one for the relief and for joint possession of 15/16th shares in the suit land which was contested by Dewan Bibi etc. Also by denying the validity of the relinquishment deed alleged to have been executed by them. After a contest, this suit was decreed vide judgment, dated 24-2-1964 by declaring that Abdul Khaliq plaintiff was entitled for possession to the extent of his share in the estate of Fazal Khan deceased as his brother which was 5/24th of the suit land with the finding that the sale executed by Mst. Kalo in favour of Bashir Ahmad was without any lawful necessity to justify the alienation and that relinquishment deed Exh. P-1 was vide ineffective and could not be acted upon.
3. It appears from the record that Mst. Kalo or Bashir Ahmad did not challenge the decision of the learned trial Court, dated 24-2-1964, however, the decision was challenged by Abdul Khaliq brother of Fazzal Khan in appeal to the extent of observation that the deed of relinquishment Exh. P-1 was void and ineffective. This appeal was allowed by the learned District Judge and the appellant was granted decree for joint possession to the extent of 15/16th share out of the suit-land vide judgment, dated 22-9-1964.
4. Bashir Ahmad being dissatisfied came in second appeal before this Court. The appeal was accepted by setting aside the impugned judgment and decree passed by the learned District Judge as a consequence of which the decree passed by the learned trial Court was restored and that share of Abdul Khaliq was again reduced to 5/24th in the suit-land.
5. Being dissatisfied from the decision given by this Court Abdul Khaliq approached to the apex Court where after lengthy discussion it was concluded that Dewan Bibi and her daughters Mst.
Fazzal Jan and Munawar Jan did not possess any reversionary but a contingent right to succeed to the property by the inheritance under the Muslim Personal Law, therefore, it is not possible to agree with the contention that these ladies in fact possessed the vested right which they could relinquish by mean of documents relied upon. As a consequence of it, the appeal filed by Abdul Khaliq had failed vide judgment, dated 31-5-1987.
6. Then Bashir Ahmad as mentioned above, whose claim was to have the sale---deed, dated 22- 2-1962 in his favour executed by Mst. Kalo filed a petition under section 47 read with section 151, C.P.C. Before the learned Senior Civil Judge at Rawalpindi with this claim that vide judgment and decree, dated 24-2-1964 Abdul Khaliq was found entitled to 5/24th share in the suit-land while the remaining 19/24th share was found in his favour and that the judgment as mentioned above has been upheld uptill Hon'ble Supreme Court of Pakistan, therefore, warrant of possession in respect of 6 Kanals, 18 Marlas out of the suit land be issued which is in possession of heirs of Abdul Khaliq. This petition was contested by the legal representatives of Abdul Khaliq deceased and by Mst. Munawar Jan and Fazzal Jan as mentioned above by Oiling the written reply wherein it was mainly contended that the sale in favour of the applicant was upheld illegal and he never challenged the judgment dated 24-2-1964, therefore, as observed in para. No.5 of the judgment of the Hon'ble Supreme Court of Pakistan, it has become absolute on the point involved and that in the Hon'ble Supreme Court of Pakistan, the relinquishment of rights by Mst. Dewan Bibi etc. Were found to be illegal, therefore, the application having no force in it is liable to be dismissed. The learned Senior Civil Judge, Rawalpindi framed the issue to this effect that "whether the objection petition is maintainable in the present form and while disposing of this issue he observed that the applicant is not a decree holder and if at all, he thinks himself to be a decree-holder and any relief has been given to him by the Honourable Supreme Court, he can file independent execution petition.
Therefore, he has got no locus standi to file the objection petition on issuance of warrant in favour of the decree-holder. So as a consequence of it the objection petition was dismissed vide judgment, dated 16-5-1992.
7. Being aggrieved from the judgment, dated 16-5-1992 Bashir Ahmad etc. Came in appeal before the learned First Appellate Court, which held that Abdul Khaliq decree--holder was declared to have 5/24th share so he had to retain the possession to the extent of 5/24th share and Bashir Ahmad appellant was also entitled to his share in the legacy as nephew and his proposal for separation of his share was refused without any justification and even there was no justification for filing any separate execution petition. So as a consequence of it the appeal filed by Bashir Ahmad was accepted vide judgment, dated 26-5-1997.
8. Now being aggrieved from the judgment, dated 26-5-1997 Muhammad Ramzan son of Abdul Khaliq has come up in revision before this Court.
9. I have heard the learned counsel for the parties and have also gone through the relevant record placed before me.
10. Learned counsel for the petitioner many argued that the sale by Mst. Kalo in favour of Bashir Ahmad out of the suit-land was found to have been made without legal necessity and that the relinquishment deed in favour of Abdul Khaliq was also found void in the judgment, dated 24-2- 1964 and this judgment was never challenged by Bashir Ahmad and for this reason it was observed in para. No.5 of the judgment, dated 31-3-1987 supra that neither Mst. Kalo Bibi nor Bashir Ahmad challenged the decision of the trial Court holding that the sale in favour of latter was void, therefore, the finding on this issue was no longer in dispute and that the matter stands concluded.
So, in such situation when there was nothing in favour of respondent No.1 nor he was decree- holder, no direction could be issued for issuance of warrant of possession in favour of the respondent and the judgment passed by the Court below is against law and facts on the record, which has been opposed by the learned counsel for the respondent.
11. The entire dispute revolves around the provision of section 47 of C.P.C. Because this section determines the limit of jurisdiction of the executing Court. So far any share of Bashir Ahmad respondent is concerned, it was a secondary question but deeply connected with the main issue because if Bashir Ahmad respondent is found to have no share in the suit-land, his petition could not be entertained.
12. Section 47 of the C.P.C. Says that all questions arising between the parties of the suit in which decree was passed or their representatives, and relating to the execution, discharge or satisfaction of the decree, shall be determined by the Court executing the decree and not by a separate suit. So far the parties are concerned, it is explained that for the purpose of this section the plaintiff whose suit has been dismissed and the defendant against whom a suit has been dismissed are party to the suit. Meaning thereby the executing Court has to decide each and every question raised either by the plaintiff or by the defendant. If the defendant is a judgment---debtor and he raises some objections or that he moves an application to consider his right as well the executing Court cannot direct for filing of separate execution petition; so any such direction is against the spirit of section 47 of C.P.C. So to this extent the findings of the learned District Judge was in accordance with law and that the issue raised by the defendant should have also been disposed of in the same execution petition which was filed by the decree-holder.
13. But the learned District Judge failed to determine that as to in what circumstances and to which extent Bashir Ahmad respondent was entitled to any share out of the suit land. Whereas in para. No.5 of the judgment passed by the Hon'ble Supreme Court of Pakistan, dated 31-3-1987 if was held that since Mst. Kalo or Bashir Ahmad did not challenge the decision of the trial Court holding that the sale in favour of the letter was void, therefore, the finding on this issue was no longer in dispute and that matter had concluded. So, in such-like situation the learned District Judge instead of issuing a direction to issue warrant of possession, should have remanded the case with a direction to determine all questions raised by Bashir Ahmad respondent as successor, particularly by resolving the issue as under:-- "Whether Bashir Ahmad respondent was a decree-holder on basis of a share in his favour out of the suit---land? OPR
14. In view of the discussion above, after setting aside the judgment passed by the learned Additional District Judge, dated 26-5-1997 and that of the learned Executing Court, dated 16-5- 1997, the case is remanded back to the learned Executing Court with a direction to dispose of the petition moved by Bashir Ahmad respondent after giving finding on the above mentioned issue. If desired, parties may be allowed to adduce evidence.
15. Parties are directed to appear before the learned Executing Court on 10-7-2002 if existing at present or otherwise, nominated by the learned District Judge, Rawalpindi.
Revision petition is disposed of accordingly.