--S. 47---Conditions regarding invoking provision of S. 47, C.P.C.--Two conditions must be satisfied in order to invoke provision of Section 47, C.P.C., which are as follows:-

 PLJ 2022 Lahore 702

[Multan Bench, Multan]

Present: Ahmad Nadeem Arshad, J.

SARDAR ALI--Petitioner

versus

ABDUL GHAFOOR and others--Respondents

C.R. No. 269 of 2020, heard on 10.11.2021.

Specific Relief Act, 1877 (I of 1877)--

----Ss. 9 & 12--Suit for possession through specific performance--Decreed--Execution proceedings--Objection petition and application for cancellation of sale-deed--Both petitions were dismissed--Consenting written statement by Respondent No. 2--Petitions were accepted without framing of issue and recording of evidence--Non-providing opportunity of hearing--Executing Court got executed sale deed in favour of petitioner and possession of decretal property was also transferred to him and Rapat Roznamcha Waqiati No. 117 dated 07.11.2014 was incorporated--Executing Court without framing of issues and recording of evidence accepted both petitions i.e. objection petition and an application for setting aside of registered sale deed and dismissed execution petition and also set aside sale deed--It was incumbent upon Executing Court to frame necessary issues to have recourse to evidence to resolve factual controversy between parties but Presiding Officer, instead of making an investigation or inquiry into assertions made by Respondent No. 1, summarily accepted same on extraneous consideration and personal assumptions--It is duty of Court to ensure safe administration of justice keeping in view substantial right of parties--With acceptance of objection petition an order of final nature has been passed qua petitioner without providing a fair opportunity of hearing violative to fundamental right of fair trial and due process protected under Article 10-A of Constitution of Islamic Republic of Pakistan, 1973.

                                                    [Pp. 707, 708, 709 & 711] A, B, G & I

Ref. 2015 CLC 987.

Civil Procedure Code, 1908 (V of 1908)--

----S. 47--Object of--Powers of executing Court--Requirement of--Object of this section is to provide remedy to parties in matters arising out of an execution of a decree--This section empowers Executing Court to determine questions relating to execution, discharge or satisfaction of a decree and it barred a separate suit--Pleas of parties are to be ascertained and adjudicated upon by framing of issues and recording of evidence to substantial justice.    

                                                                          [Pp. 708 & 711] C & H

Words and Phrases--

----Execution--The word “execution” means to carry out and perform and it derived from word “execute” which means command.

                                                                                             [P. 708] D

Civil Procedure Code, 1908 (V of 1908)--

----S. 47--Conditions regarding invoking provision of S. 47, C.P.C.--Two conditions must be satisfied in order to invoke provision of Section 47, C.P.C., which are as follows:-

i)        The question should have arisen between parties to suit in which decree was passed, or their representatives.

ii)       The question should relates to execution, discharge or satisfaction of decree.            [Pp. 708 & 709] E

Civil Procedure Code, 1908 (V of 1908)--

----O. XXI R. 98--Execution of decree--Rule 98, CPC provides that if Court is satisfied that resistance or obstruction was occasional without any just course by judgment debtor or by some other person, it shall direct that applicant be put in possession of property.                                                     [P. 709] F

M/s. Syed Muhammad Ali Gillani and Ch. Shahid Mehmood Buttar, Advocates for Petitioner.

Ch. Khadim Hussain Gehlan, Advocate for Respondents
No. 1, 2(b).

Date of hearing: 10.11.2021.

Judgment

The petitioner called in question the validity and legality of the orders/judgments of learned Courts below whereby an objection petition and an application for cancellation of registered sale deed dated 31.10.2011 filed by Respondent No. 1 were allowed concurrently and resultantly dismissed the execution petition as well as set aside the sale deed.

2. Brief facts to understand the background of controversy are that petitioner instituted a suit for possession through specific performance of an agreement to sell dated 10.03.1994, which was decreed vide judgment and decree dated 19.10.1996. For the execution and satisfaction of said decree, he filed an execution petition before the learned Executing Court whereby a sale deed was executed and registered on 31.10.2011 and consequently possession was also delivered to him. Respondent No. 1 namely Abdul Ghafoor, who claimed to be the owner of suit property prior to the institution of the suit through Mutation No. 262 dated 31.05.1994, filed an objection petition and an application for cancellation of that sale deed before the learned Executing Court, after taking its replies, both petitions were accepted, consequently the registered sale deed was cancelled and the execution petition was dismissed vide order dated 26.02.2018. Feeling aggrieved, the petitioner preferred an appeal which was dismissed by the learned appellate Court vide judgment/order dated 16.11.2019. Having dissatisfied with regard to both the judgments/ orders of learned Courts below he filed the instant civil revision.

3. I have heard the learned counsel for the parties at full length, perused the record with their able assistance and gone through the case laws referred to.

4. Admittedly Respondent No. 2 Manzoor Hussain (deceased) predecessor of Respondent No. 2(a) & 2(b) was owner of an Ahata No. 102 measuring 8-mala 1-sarsahi situated at Chak No. 76/5-R Sahiwal. A portion of that Ahata measuring 4-marla 2-sarsahi was agreed to be sold through an agreement to sell dated 10.03.1994, which was written on a plain paper, for a consideration of Rs. 40,000 out of which, an earnest money of Rs. 10,000/- was paid at the time of execution of said document. The petitioner on the strength of said agreement to sell instituted the suit for possession through specific performance of the agreement to sell against Respondent No. 2 on 20.07.1995. The Respondent No. 2 filed its consenting written statement on 26.11.1995. The learned trial Court after recording evidence, vide order dated 19.10.1996 directed to impound the agreement to sell dated 10.03.1994 and decreed the suit vide judgment and decree dated 19.10.1996 by giving direction to the petitioner/plaintiff to deposit the remaining consideration amount within 10-days which was deposited on 23.10.1996. One Muhammad Yaseen who claimed that he purchased the Ahata No. 102 measuring 8-marla 1-sarsahi for a consideration of Rs. 100,000/-in the year 1992 and alleged that after receipt of the consideration amount, Respondent No. 2 executed a registered power of attorney in his favour on 28.05.1994 in Lahore and on the strength of said registered power of attorney he alienated a portion of Ahata measuring 4-marla 2-sarsahi in favour of Respondent No. 1 namely Abdul Ghafoor and got executed an oral sale Mutation No. 262 dated 31.05.1994. Respondent No. 1 Abdul Ghafoor claimed himself the owner of suit property on the basis of said Mutation No. 262 dated 31.05.1994 with a stance that said mutation was sanctioned prior to the institution of the petitioner’s suit.

5. The judgment and decree dated 19.10.1996 passed in favour of petitioner going to hurt the rights of following persons, who being aggrieved challenged it through different proceedings and on different forums:

i)        Manzoor Hussain the original owner

a)       Although he himself did not challenge the said decree but when Abdul Ghafoor challenging the judgment and decree through application under Section 12(2), CPC he filed its consenting written reply along with Muhammad Yaseen.

b)       After his demise his widow Mst. Maqbool Begum filed an application on 22.04.2017 u/s 12(2), CPC, which was dismissed on 01.06.2017.

c)       Manzoor Hussain’s son namely Hamayun Murtaza also filed an application u/s 12(2), C.P.C. on 28.04.2017 against the said judgment and decree. That application was dismissed by the learned trial Court vide order dated 01.06.2017. Feeling aggrieved he filed a revision which was dismissed by the learned Revisional Court vide order dated 23.10.2017.

ii)       Abdul Ghafoor, claimed to be the vendor through Mutation No. 262 dated 31.05.1994.

a)       Abdul Ghafoor, Respondent No. 1 filed an application under Section 12(2), C.P.C. on 16.12.1996 against the said judgment and decree dated 19.10.1996 by impleading petitioner, Manzoor Hussain and Muhammad Yaseen as a party. Manzoor Hussain and Muhammad Yaseen filed joint consenting written reply, however, petitioner filed contesting written reply. After taking its replies, the learned trial Court framed issues on 29.11.2001 and invited Abdul Ghafoor to lead his evidence. But inspite of taking 15 adjournments in almost five years he failed to adduce any kind of evidence, therefore, the leaned trial court dismissed the application after closing his right of defence vide order dated 02.06.2006.

b)       Respondent No. 1/Abdul Ghafoor after dismissal of his application under Section 12(2), C.P.C. and further lapse of about 5 ½ years also instituted a suit for declaration against the petitioner on 10.12.2011 and sought declaration that he is owner in possession of the suit property on the basis of Mutation No. 262 and challenged the validity of judgment and decree dated 19.10.1996 and sale deed executed on the basis of said decree, the petitioner filed its contesting written statement. That suit was adjourned sine die on the statement of Respondent No. 1 vide order dated 18.03.2014.

iii)      Muhammad Yaseen, claimed to be vendor and general attorney of Manzoor Husain.

a)       Muhammad Yaseen, who allegedly purchased the Ahata in the year 1992 for a consideration of
Rs. 100,000/-and got a registered general power of attorney from Manzoor Hussain on 28.05.1994, did not initiate any proceedings against the petitioner as well as judgment and decree dated 19.10.1996 except filing a consenting written reply of the application under Section 12 (2), C.P.C. filed by Respondent No. 1.

b)       After the demise of said Muhammad Yaseen, his son namely Muhammad Asghar filed an application on 04.12.2014 under Section 12(2) and 151, CPC in the execution petition of the petitioner for setting aside of ex-parte judgment and decree dated 19.10.1996. That application was dismissed on 24.10.2016.

c)       Said Muhammad Asghar filed revision petition against that order which was dismissed by the learned Revisional Court vide order dated 16.02.2017.

d)       Feeling aggrieved, Muhammad Asghar filed Writ Petition No. 2462 of 2017 before this Court, which was dismissed vide order dated 09.03.2017.

6. The petitioner filed an execution petition on 27.11.2007 for the satisfaction of his decree dated 19.10.1996. The learned Executing Court got executed sale deed in favour of petitioner on 31.10.2011 and possession of the decretal property was also transferred to him on 07.11.2014 and in this regard Rapat Roznamcha Waqiati No. 117 dated 07.11.2014 was incorporated.

7. The Respondent No. 1 moved an objection petition on 29.03.2012 before the learned Executing Court in the execution petition and prayed for setting aside the judgment and decree and dismissal of the execution petition. The petitioner filed its contesting written reply on 26.04.2012. He also moved an application for cancellation of sale deed dated 31.10.2011. The petitioner filed its contesting written reply.

8. The learned Executing Court without framing of issues and recording of evidence accepted both the petitions i.e. objection petition and an application for setting aside of registered sale deed dated 31.10.2011 vide judgment/order dated 26.02.2018 and dismissed the execution petition and also set aside the sale deed.

Feeling aggrieved, the petitioner preferred an appeal, which was dismissed by the learned appellate Court vide judgment/order dated 16.11.2019.

9. The learned Executing Court while allowing the objection petition and dismissing the executing petition invoked the provision of Section 47 of the Civil Procedure Code, 1908 which for the convenience reads as under:-

“47. Questions to be determined by the Court executing decree.--

(1)      All questions arising between the parties to the suit in which the 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.

(2)      The Court may, subject to any objection as to limitation or jurisdiction, treat a proceeding under the section as a suit or a suit as a proceeding and may, if necessary, order payment of any additional Court-fees.

(3)      Where a question arises as to whether any person is or is not the representative of a party, such question shall, for the purposes of this section, be determined by the Court.”

The object of this section is to provide remedy to the parties in matters arising out of an execution of a decree. This section empowers the Executing Court to determine the questions relating to the execution, discharge or satisfaction of a decree and it barred a separate suit. The word “execution” means to carry out and perform and it derived from the word “execute” which means command. As is evident from the word “determine” the Executing Court possesses jurisdiction to finally dispose of all questions, arising out of execution, discharge or satisfaction of a decree and to grant a relief. An Executing Court becomes functus officio once the decree is fully discharged. The term “discharge or satisfaction” has not been defined, and a flexible and liberal interpretation should be given to these words in keeping with the object behind Section 47, CPC, however that words in their context would be limited to the matters arising after the passage of the decree and arising in course of or in connection with the execution of the decree. This provision is analogues to those of Section 9, C.P.C. in so far as they confer jurisdiction to execute a decree. The Section 47, C.P.C. does not bar the remedy but only regulates the forum for enforcement of rights in so far as it channelizes all matters relating to the execution, discharge or satisfaction of the decree to the Executing Court. Two conditions must be satisfied in order to invoke the provision of Section 47, C.P.C., which are as follows:-

i)        The question should have arisen between the parties to the suit in which the decree was passed, or their representatives.

ii)       The question should relates to the execution, discharge or satisfaction of decree.

The term “parties to the suit” refers to those persons whose names are borne on the record of the suit as plaintiff and defendant. The term used ‘representative’ has a much wider connotation than the term ‘legal representative’ and means any representative in interest of a party to the suit by assignment etc. The Executing Court can investigate the matter by examining the record and providing opportunity to produce evidence. In this regard Order XXI Rules 97 to 103 of C.P.C. are relevant. Rule 97, CPC provides that where the execution of decree of possession is resisted or obstructed by any person, the decree holder may make an application to the Court complaining of such resistance or obstruction. In such case the Court shall fix a day for investigating the matter and shall summon the person who has put in resistance or obstruction. Rule 98, CPC provides that if the Court is satisfied that the resistance or obstruction was occasional without any just course by the judgment debtor or by some other person, it shall direct that the applicant be put in possession of the property. It also provides some procedure for the execution of the decree by detention of such persons in the civil prison. Rule 99 CPC then says that the resistance or obstruction if occasioned by any person other than the judgment debtor, claiming in good faith to be in possession of the property, on his account or on account of some person other than the judgment debtor, it may make an order dismissing the application meaning thereby the application under Rule 97, CPC submitted by a decree holder. Rule 100 and 101, CPC deal with a case where the decree is executed and any person who is in possession of the property in his own right and is not bound by the decree, is dispossessed. Under Rule 100, CPC such a person can apply to the Court complaining of his dispossession. The rule further provides that in such contingency the Court shall investigate the matter. Then follows Rule 101, CPC which states that where the Court is satisfied that the applicant is in possession of the property on his own account, or on account of some person other than the judgment debtor, it shall direct that the applicant be put into possession of property. The Rule 103, CPC bars any separate suit in this regard and this provision follows the principle on which Section 47 of the Code is based. This Rule has been substituted by the Law Reforms Ordinance XII of 1972. Before the amendment by the Ordinance (ibid) it provided that in case of decision of applications of the decree holder under Rule 97, CPC or of the person claiming to have been legally dispossessed of under Rule 101, CPC the aggrieved party shall have a right to file the separate suit for determination of the question involved therein in non-summary regular proceedings. Now all questions arising as to title, right or interest in, or in possession of immoveable property under Rule 97, CPC or Rule 100, CPC are to be decided by an Executing Court and not by a separate suit. For ease, Order XXI Rule 103 of, C.P.C. is reproduced as under:-

“Order XXI [EXECUTION OF DECREES AND ORDERS]

Rule 103, C.P.C. [Certain orders conclusive and suit barred. – All questions arising as to title, right or interest in, or possession of, immovable property between an applicant under rule 97 and the opposite-party, or between an applicant under Rule 100 and the opposite-party, shall be adjudicated upon and determined by the Court, and no separate suit shall lie for the determination of any such matter.]”

From bare perusing that rule it appears that all questions arising as to title, right or interest in, or possession of immovable property determined and adjudicated upon by the Court in execution would not be mere in summary proceedings, but would be considered as trial of suit. Provisions of code relating to trial of suit such as framing of issues and providing opportunities to parties to lead documentary and oral evidence, would apply in such proceedings.

10. The Respondent No. 1 claimed that he was owner of the suit property through Mutation No. 262 sanctioned on 31.05.1994 prior to the institution of the suit which was instituted on 20.07.1995. But on the other hand, the petitioner instituted the suit for possession through specific performance of an agreement to sell dated 10.03.1994 which was certainly executed prior to the sanction of Mutation No. 262. Manzoor Hussain (original owner) did not get incorporate the said mutation himself but said mutation was got sanctioned through general attorney in whose favour a general power of attorney was executed in Lahore on 28.05.1994, certainly after execution of agreement to sell. The suit property was situated at Sahiwal and general power of attorney was executed in Lahore. The question arises whether Sub-Registrar of Lahore has an authority to register deed of power of attorney. Whether the executant was permanent resident of Lahore or Sahiwal. Although the legal heirs of general attorney claims that their predecessor purchased the suit property in the year 1992 for a consideration of Rs. 100,000/-and said Manzoor Hussain executed general power of attorney in favour of Muhammad Yaseen but this fact was not established on record and it also required evidence. If said Manzoor Hussain sold it to Muhammad Yaseen and not remained owner of that property in the year 1992, then how he transferred the remaining Ahata in the name of Muhammad Asghar in the year 2003. The Respondent No. 1 has every knowledge with regard to the decree dated 19.10.1996 as he himself challenged that decree by way of application u/s 12(2), C.P.C. on 16.12.1996. But he filed the objection petition on 29.03.2012. The question of limitation is also relevant with regard to his objection petition. These questions cannot be resolved without recording of evidence.

It is obvious from the above that parties are at variance on the question of facts and law. In the attending circumstances it was incumbent upon the learned Executing Court to frame necessary issues to have recourse to evidence to resolve the factual controversy between the parties but the learned Presiding Officer, instead of making an investigation or inquiry into the assertions made by Respondent No. 1, summarily accepted the same on extraneous consideration and personal assumptions. It is duty of the Court to ensure safe administration of justice keeping in view the substantial right of the parties.

Section 47 of the Code of Civil Procedure, 1908 requires that pleas of the parties are to be ascertained and adjudicated upon by framing of issues and recording of evidence to substantial justice. An objection petition is akin to the suit and the Court executing the decree was saddled with the responsibility of framing the issues and recording evidence to resolve the controversy.

Undeniably with the acceptance of objection petition an order of final nature has been passed qua the petitioner without providing a fair opportunity of hearing violative to the fundamental right of fair trial and due process protected under Article 10-A of the Constitution of Islamic Republic of Pakistan, 1973. This Court while dealing similar nature of preposition in a case “Province of Punjab and others versus Abdul Rashid” (2015 CLC 987) held as under:

“The question with regard to maintainability of the second execution petition; applicability of the principle of res judicata; and the power of the Executing Court to go beyond the decree were the substantial questions of law and facts. The averments made in the objection petition and the above said questions could not be decided in a summary manner. The learned Executing Court was required to frame issues and thereafter to decide the same in accordance with law. Non-framing of issues and non-affording of opportunity to lead evidence in the given facts and circumstances of the case was not only violative of the principle of natural justice but also Article 10-A of the Constitution of the Islamic Republic of Pakistan, 1973 which guarantee fair trial for determination of the rights.”

11. The case laws referred to by learned counsel for Respondent No. 1 are not relevant to the facts and circumstances of the case.

12. For the above reasons, this civil revision is allowed, the impugned order dated 26.02.2018 whereby the Executing Court while accepting the objection petition of Respondent No. 1 dismissed the execution petition and set aside the sale deed and impugned order dated 16.11.2019 whereby the appeal filed by the petitioner against that order was dismissed, are hereby set aside. Resultantly the execution petition, objection petition and the application for setting aside sale deed shall be deemed to be pending for decision afresh before the learned Executing Court, who shall decide the same in accordance with law after framing of necessary issues, recording of evidence and providing proper opportunity of hearing to the parties. No order as to costs.

(Y.A.)  Civil Revision allowed