PL J 2003 Lahore 21

[Multan Bench Multan]

Present: FARRUKH LATEEF, J.

MUHAMMAD ASLAM-Petitioner

versus

DISTRICT OFFICER REVENUE, SAHIWAL and another-Respondents

W.P. No, 4417 of 2002, decided on 6.6.2002

Constitution of Pakistan, 1973--

—- Art. 199 Specific Relief Act (I of 1877), S. 42-Declaratory decree declaring title of decree holder to property in question, with consequential relief of perpetual injunction sought to be executed by filing constitutional petition-First portion of decree being purely declaratory cannot be executed-Second portion thereof, provides preventive relief-Execution of decree could have been possible only if terms of decree contained mandatory injunction under S. 55 of Specific Relief Act 1877, to compel performance of requisite act-Direction sought by petitioner cannot be issued in as much as, declaratory decree was not capable of execution. [P. 23] A & B

Mr. TJariq Muhammad Iqbal, Advocate for Petitioner. Date of hearing: 6.6.2002.

order

He has been heard; writ petition and its annexures have also been perused.

2. Facts of the writ petition are that Muhammad Aslam son of Nazir Ahmad filed a suit against Province of Punjab. A. C. Saddar District, Sahiwal and one Abdul Sattar for a declaration that he is in possession of Plot No. 9/1/1/1 measuring 1 Maria situated in Jinnah Colony, Tehsil and District Sahiwal, by virtue of being allottee thereof.

3. By way of consequential relief it was prayed that Defendant No. 2 be perpetually restrained from changing entries in the revenue record thereby showing Respondent No. 3 as owner of the said plot and all the respondents be restrained from denying his ownership or from interfering with his possession over the said plot for all times to come.

4. The said suit was decreed on 8.6.1994. On 30.7.1999 decree- holder moved an application (Annex. F) to the Tehsildar, Sahiwal (Respondent No. 2), a functionary of the judgment-debtor for implementing the said decree by attesting a mutation on the basis thereof in his favour and incorporating his ownership in the revenue record.

5. It is urged that Respondent No. 2 is bound to implement the said decree but he is not performing his statutory duty and there is no other remedy available to the petitioner except to invoke the Constitutional jurisdiction of this Court. Prayer is that a direction be issued to judgment debtor (Respondent No. 1) to implement the said decree in the aforesaid manner.

6. Through this constitutional petition, in fact, decree of Civil Court is desired to be enforced/implemented. The petitioner has got remedy of filing an execution application before the Court which had passed the decree, under Rule 10 of Order XXI CPC which provides that where holder of a decree desires to execute it, he shall apply to the Court which passed the decree or to the Court to which it is sent for execution.

7. Decree (Annex. E) which is required to be implemented is purely a declaratory decree declaring title of the decree holder in the suit property with consequential relief of perpetual injunction restraining the judgment debtors from denying his title and from interfering with his possession over the said property.

8. A decree, in order to be executed, should be capable of execution i.e. it should order the doing or restrain the doing of an act.

9. First portion of the decree is purely declaration and as such cannot be executed. Second portion thereof provides preventive relief granted under Section 54 of the Specific Relief Act whereby judgment- debtors have been restrained from denying ownership of the decree-holder and have been forbidden to interfere with his possession.

10. It is not complained that any of the judgment-debtors has denied title of or has interfered with possession of the decree-holder.

11. "Demand of the decree-holder (petitioner) is that Respondent No. 2 (Tehsildar) a functionary of judgment-Debtor No. 1 (Province of Punjab) be directed to implement the decree by attesting a mutation in favour of the decree-holder and incorporating his ownership in the revenue record. This could have been possible only if terms of the decree contained a mandatory injunction under Section 55 of the Specific Relief Act to compel performance of the requisite act.

12. Copy of judgment (Annex. B) shows that issuance of mandatory injunction by way of consequential relief was neither prayed for in the plaint nor the said relief was granted by the Court. Consequently mandatory injunction to compel the requisite act was hot granted in the decree.

13. A decree is to be executed in accordance with its terms and conditions without modification.

14. Section 51 of CPC enumerates generally the modes to be adopted by a Court executing decree. Mode of execution mentioned in clause (e) of Section 51 CPC whereby executing Court is empowered to order execution of the decree in such other manner as the nature of relief may require, is a residuary clause and is resorted to when the decree cannot be executed by any of the means provided by clauses (a) to (d). Clause (e) does not authorise granting supplementary or alternate relief or a relief not allowed by the decree.

15. It appears that being mindful of the above situation that decree was not executable, application for its execution/implementation was not filed before the Court which had passed the decree but was moved before the Tehsildar (Respondent No. 2) requiring him to do an act which the terms of the decree did not direct to be done by the judgment-debtors and on his reluctance to do the needful now a direction is being sought from the High Court through this Constitutional petition for directing Respondent No. 1 (judgment-debtor) to do that which he is not required by the law to day.

16. For the reasons stated above, the direction sought by the petitioner cannot be issued, writ petition is accordingly dismissed in limine.

(A.P.) Petition dismissed.