NOOR ASLAM vs Mst — 2024 MLD 36 PESHAWAR-HIGH-COURT

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NOOR ASLAM VS Mst. RESHAM JAN (WIDOW) S. 47 & O. XXI, Rr. 35, 100, 101, 103---Execution of decree---Objection(s) raised by the party, determination of---Executing Court, powers of---Scope---Plaintiffs instituted suit primarily against a defendant alleging that he used forged power of attorney qua suit-property ('real defendant') while the petitioner was one of those defendants upon whom some of the area/ownership regarding suit-property had been transferred---Case among the parties was finally disposed of by the Supreme Court on the basis of the statement of the plaintiff/decree-holder that they, from the suit-property, would be entitled to the extent of only 01-Kanal 01-Marla left by the deceased (original-owner)---Before the Executing Court, the petitioner filed an application for clarification of warrant of possession(proper measurement and determination of shares) in wake of the said statement of the decree-holder---Executing Court dismissed said application, which order was maintained by the Appellate Court---Contention of the petitioner was that order of the Executing Court for handing over possession without proper measurement and determination of shares of all the parties would not only be against the spirit of decree but was also exercise of power not so vested in it (Executing Court)---Validity---Record revealed that the deceased was indisputably the owner of 01-Kanal and 01-Marla comprising in two Khasra Numbers (No. 5753 and 5760), but the third Khasra No. 5754 ('disputed/third Khasra') was made disputed (and remained root-cause of the litigation among the parties and though High Court did not want to comment upon the legal aspect of the case, since it had already been decided), however, for the purpose of execution, Executing Court would have to consider as to whether all the three Khasra numbers were contiguous to each other and if so in which particular Khasra number or numbers disputed house was constructed---It was because during the trial of the case a document , prepared by one Bailiff of the Court, was duly exhibited, while another Bailiff of the Court was also directed by the Trial Court to proceed to the spot and submit his report---Said report as well as exhibited document showed total area of the constructed house as 8190 square feet equal to 30.110 Marla whereas the total shares of the deceased in the house were 01-Kanal and 01-Marla---Once a statement was given on the basis of which the Supreme Court disposed of matter the decree-holders had restricted their rights to the extent of specific portion, i.e., 01-Kanal and 01-Marla and now neither they could claim more than that nor could retain it---Irrespective of the fact that real defendant or for that matter the petitioner or anyone else was in possession of the house and whatever might be his status, the decree-holder would get executed the decree to the extent of 01-Kanal and 01-Marla---Determination of said particular aspects i.e., the location of the house and handing over the possession was a question which was required to be decided by the Executing Court---No doubt Executing Court could not go beyond the scope of decree which did not mean that Executing Court was to exercise its powers as per whims, wishes and desire of any person/party---Section 47 and O. XXI, R. 103 of the Code of Civil Procedure, 1908, on one hand had put a embargo to file a fresh suit against the lis already decided but on the other hand had provided a vast power to the Executing Court not only for the decree-holders but also for the person who had got any right in the subject matter of the decreed property---Both the Courts below committed an illegality, without determining the specific location of the house, the determination of the share of decree holder, i.e., 01-Kanals and 01-Marla, the co-sharer ship of real defendant in disputed Khasra, and to determine as to whether the petitioner was co-sharer in the decreed house, which he had purchased from the real defendant---High Court directed the Executing Court to determine the proper location of the house i.e., the contiguity of three Khasra Numbers and then to determine whether any portion of the house was in disputed Khasra Number and in such an eventuality the provision of O. XXI, R. 35, Sub Rule 2 of the Code of Civil Procedure, 1908, would obviously come into play; similarly, if the house was constructed in two Khasra numbers then the decree holder would retain the possession of 01-Kanal 01-Marla and the rest of the possession shall be restored to the person from whom it was taken in consonance with O. XXI, Rr. 100 & 101, C.P.C. in juxtaposition with the statement of decree holders recorded before the Supreme Court---Said questions were to be dealt by the Executing Court within the purview of S. 47 of the Civil Procedure Code, 1908---High Court set-aside the impugned orders and judgments passed by both the Courts below and remanded the matter to the Executing Court---Revision was disposed of accordingly.

NOOR ASLAM vs Mst — 2024 MLD 36 PESHAWAR-HIGH-COURT

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