PLJ 2004 Lahore 832

Present: muhammad muzammal khan, J. MUHAMMAD-Petitioner

versus

SHAHBAZ and 21 others-Respondents W.P. No. 4908 of 2003, decided on 30.12.2003.

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

-—S. 47-Jurisdiction of Court to treat execution petition as a suit or a suit
as an execution petition-Court has jurisdiction to treat any execution
petition as a suit or a suit as an execution petition-Provision of S. 47(2)
of C.P.C. does not require that earlier some execution petition should
have been pending-When a suit itself was to be treated as an execution
petition, of course, subject to any objection as to limitation or jurisdiction,
pendency of some earlier execution petition was not needed for such
conversion. [P. 835] A

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

—O.VII, R.ll-Specific Relief Act (I of 1877), S. 42-Earlier suit decreed on
basis of compromise-Competency to file fresh suit-Where decree was
passed in suit for declaration and permanent injunction wherein some
reciprocal exchange of land was agreed to be made in compromises
discharge of respective obligations under that decree by a fresh suit
cannot be held to be barred. . [P. 836] B

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

—- S. 47(2) & O.VII, R. 11-Constitution of Pakistan (1973), Art. 199-
Rejection of plaint in terms of O. VII, R. 11 C.P.C. assailed-Suit by
plaintiff/petitioner cannot be said to be barred or not maintainable
especially when there was assertion that part of compromise effected in
earlier suit remained un-performed-Judgment of Additional District
Judge whereby plaint of petitioner in his suit was rejected was contrary
to law declared by Supreme Court in Nazir Ahmad's case reported as
1995 SCMR 933 and was not in consonance with provisions of S. 47(2)
C.P.C. therefore the same was declared to be void, illegal and of no legal
consequence-Suit of petitioner would thus, deemed to be pending and
would be decided in accordance with law. [Pp. 836 & 937] C

1995 SCMR 933; 1999 MLD 901; 2001 CLC 707; NLR 1994 Civil 505 and

1999 SCMR 2396 ref.

Sheikh Naveea Shaharyar, Advocate tor Petitioner.

Mr. Khurshid Ahmad ChdUdhary, Advocate for Respondents.

Date of hearing : 17.12.2003.

judgment

This Constitutional petition seeks judgment/order dated 6.3.2003 passed by the Additional District Judge, Sargodha, whereby petitioner's suit was rejected under Order VII, Rule 11 CPC, to be declared as illegal, void and ineffective.

2. Precisely, factual background of the case is that the petitioner and
his mother filed a suit for declaration with consequential relief and
permanent injunction against the respondents, claiming their share in joint
holding with them. This suit was partly decreed by the learned Civil Judge
vide his judgment and decree dated 27.3.1983. The petitioner was not
satisfied with the decision of the trial Court and consequently filed an appeal
before the learned District Judge, which was decided on the basis of
compromise by the learned District Judge on 10.6.1985. According to this
decision, determination of petitioner's share was made and a part of holdings
of the parties was exchanged, under their compromise. This decree-dated
10.6.1985 was not challenged, any more in appeal or revision. .

3. The petitioner, for the second time, filed a suit for declaration
before the Civil Courts at Sargodha on 18.4.2002 claiming ownership on the
basis of exchange contained in judgment and decree dated ,10.6.1985 passed
by the learned District Judge, Sargodha. This suit was contested by the
respondents and they filed an application under Order VII, Rule 11 CPC
before the trial Court seeking rejection of the plaint on the ground that the
suit on the basis of earlier decree which was passed on the basis of
compromise is not maintainable, in view of provisions of Section 47 of the
CPC. This application was replied by the petitioner and was dismissed by the
learned trial Judge vide order dated 6.9.2002 who opined that resort to
process of execution, is of course the proper method for satisfaction of the
unsatisfied part of the consent decree, but at the present stage it is too early

to hold tha+ the decree still remains unsatisfied. He also observed that one type of legal proceedings can be competently converted into another kind of proceedings and consequently dismissed the applications of the respondents under Order VII, Rule 11 CPC.

4. Respondents feeling dis-satisfaction with the order dated
6.9.2002, filed a revision petition before the District Judge, Sargodha, where
their revision petition and application under Order VII, Rule 11 CPC was
accepted and plaint of the petitioner was rejected, being barred by law, vide
judgment/order dated 6.3.2003.

5. The learned counsel for the petitioner submits that view taken by
the revisional Court is not only erroneous but is also contrary to law as the
second suit by the petitioner on the basis of earlier decree, was maintainable.
He further contends that though the suit of the petitioner is with regard to
unperformed part of the decree dated 10.6.1989 yet it could be controverted
intcmany kind of proceedings, as maintainable under law and that the learned
trial Court had not ordered conversion of suit and had not taken any decision

regarding maintainability of the suit, revisional Court was not competent, under law, to pass any order in the manner complained. He in this behalf relies to the case of Nazir Ahmad and others Versus Muhammad Din and others (1995 SCMR 933). It has also been contended on behalf of the petitioner that conversion of the suit to execution petition or to any other proceedings, maintainable under law is permissible. He in this behalf referred to Section 47(2) GPC and to the case of Manzoor Elahi through Legal Heirs Versus Ch. Muhammad Akbar and 2 others (1999 MLD 901) and to the case of Broken Hill Proprietary Company Limited Versus Ghee Corporation of Pakistan (Private) 2001 CLC 707. It is also added to the arguments that the petitioner being undeniably in possession of the land in dispute, limitation for filing of suit in hand does not run against him. Powers of the revisional Court to reject plaint under Order VII, Rule 11 CPC have seriously been challenged by the learned counsel for the petitioner, asserting that such exercise had rightly been refused by the trial Court but could not have been undertaken by the learned Additional District Judge. In this behalf he relies to the case of Mst. Bilqees Begum Versus Haji Ghulam Rasool (NLR 1994 Civil 505).

6. Conversely, the learned counsel for the respondents refuted the
submissions of the petitioner and supported the order of the revisional Court
and urged that since no execution petition has been filed, conversion of the
suit into execution petition under Section 47(2) CPC is neither imaginable
nor could be done. He further submitted that the parties to the compromise
effected through judgment dated 10.6.1985, were not impleaded by the
petitioner as parties to the suit and in this view of the matter, the suit of the
petitioner could not proceed.

7. I have anxiously considered the respective arguments of the
learned counsel for the parties; and have examined the record. Undeniably
the learned trial Judge who was seized of the suit and before whom the
application under Order VII, Rule 11 CPC was filed by the respondents did
not decide three matters, firstly that decree dated 10.6.1986 is executable,
secondly suit on the basis of compromise contained in earlier decree dated
16.6.1985 is maintainable or not, at law and that conversion of suit to any
other proceedings is permissible or not. Respondents had not denied
compromise between the parties to the earlier suit, during hearing of the
appeal which matured into decree dated 16.6.1985 as they have not
challenged it before the same Court or before any higher forum and in this
manner that decree has attained finality. Rights of the parties, thereunder
vested in the respective parties to whom this decree conferred title.
According to assertions of the petitioner that properties exchanged under
this compromise did not change hands and in this manner this part of the
decree remained unperformed, law is not that ineffective, that it cannot give
effect to rights of the parties created by a lawful decree of the Court and that
too, on the basis of compromise between the parties, in a similar situation,
the Hon'ble Supreme Court of Pakistan decided that defendants, after compromise, cannot subsequently agitate that either the decree passed on compromise was in executable or that suit on the basis of sale, was barred by time. In this precedent case as well, decree on the basis of a compromise was not executed and instead a mutation was sanctioned, the plaintiffs field suit on the basis of earlier consent decree which was decided in their favour and decision was maintained in appeal, as well as, in revision where against, leave to appeal before the Hon'ble Supreme. Court, was refused. I accordingly, respectfully following the view taken in the case of Nazir Ahmad (supra) conclude that suit by the petitioner cannot be said to be barred or not maintainable especially when there is an assertion that a part of the compromise remained unperformed. In this regards Section 47 .CPC reads as under:--

"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.

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.

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

Explanation. For the purposes of this Section, a plaintiff whose suit has been dismissed and a defendant against whom a suit has been

dismissed, are parties to the suit."

'

8. Sub-section (2) of Section 47 produced above for convenience, shows the Court has a jurisdiction to treat an execution petition as a suit or a suit as an execution petition. This provision of law does not' require that earlier some execution petition should have been pending. When a suit itself is to be treated as an execution petition, obviously subject to any objection as to limitation or jurisdiction, pendency of some earlier execution petition is not needed for such conversion. In this manner I find no substance in the arguments of the learned counsel for the respondents that without there being any execution petition, suit cannot be converted into execution petition. In similar situation where a pre-emption suit was decreed on the basis of compromise including the land beyond subject matter of the suit, this Court in case of "Manzoor Ilahi, through legal representatives versus Ch. Muhammad Akbar and 2 others" reported as (1999 MLD 901) took the view that decree to the extent relating to the land subject of suit will be executed by the executing Court whereas, the decree related to land beyond subject- matter of the suit, execution petition may be decided to be converted into suit, for enforcement of compromise. In another case High Court of Karachi jurisdiction in the case of "Broken Hill Proprietary Company Limited Versus Ghee Corporation of Pakistan", reported as (2001 CLC 707) took the view that executing Court subject to any objection as to limitation and jurisdiction, could treat proceedings under Section 47 CPC as a suit or vice versa. It is clear that conversion though not ordered by the trial Court, could have been ordered, as the same is permissible under law,

9. Appellate decree dated 10.6.1985 was passed on a suit for
declaration and permanent injunction by the petitioner whereby some
reciprocal exchange of land was agreed to be made in the compromise, and
discharge of respective obligations under this decree, by a fresh suit, cannot
be held to be barred and my this view gets support of an earlier judgment
from this Court in case of "Manzoor Ilahi" reported as 1999 MLD 901.

10. The petitioner has asserted his possession over the land in
dispute and claims that limitation will not run against him but this point
being a pure question of facts and can only be determined after recording of
the evidence, I refrain from determining it, but controversy regarding
rejection of plaint on the basis that suit is barred by limitation, has been put
to rest by the Hon'ble Supreme Court by giving an alighted judgment in the
case of'Tariq Mehmood Chaudhary Versus Najam-ud-Din" reported as (1999
SCMR 2396). In this precedent case it was held that limitation being a mixed
question of law and fact and issue with regard thereto having been framed,
Courts have committed no error while rejecting the application under Order
VH, Rule 11 of the CPC.

11. Adverting to the objection of the learned counsel for the
respondent that the parties to the compromise, evidenced in decree dated
10.6.1985, have not been impleaded to the suit, I find that this 'controversy
was neither raised before the trial Court nor the revisional Court and it will
be decided in a more better way if such objection is raised in the suit which
will be decided, ultimately in accordance.

12. Other arguments of the learned counsel for the petitioner that
revisional Court cannot reject the plaint, in place of the learned trial Court is
also not misplaced because while hearing the revision against an order
refusing to exercise the jurisdiction under Order VII, Rule.ll of CPC, plaint
is not before the revisional Court. It is so because where the learned trial
Court did not exercised its discretion at a preliminary stage of the
proceedings by dismissing the application, revisional Court can set-aside the
order, if it is bad at law and sJhall remit back the case for fresh decision,
pointing out the defects, if any, in terms of Section 115 CPG. This Court
while deciding the case of "Mst. Balqees Begum versus Haji Ghulam Rasul,
reported as (NLR Civil 505) held that plaint cannot be rejected by the
revisional Court, as suit was not be pending before it.

13. For what has been discussed above, it'is clear that judgment of the learned Additional District Judge dated 6.3.2003 impugned herein, is contrary to law declared by the Honourable Supreme Court of Pakistan in the case of "Nazir Ahmad and others" (supra) and is not in consonance with the provisions of Section 47(2) CPC and thus is declared to be void, illegal and of no legal consequence. This constitutional petition succeeds and writ, as prayed, is issued, with the effect that the suit of the petitioner will be deemed to be pending and will be decided in accordance with law. There will be no order as to costs.

(A.A.) Petition accepted.