PLJ 2009
[
Present: Syed Zulfiqar Ali Bokhari, J.
AHMAD KHAN--Petitioner
versus
AKHTAR HUSSAIN--Respondent
C.R. No. 310 of 2009, decided on 15.6.2009.
Civil Procedure Code, 1908 (V of 1908)--
----S. 115--Civil revision--Case was remanded to Executing Court with direction to frame additional issue and decide objection petition as well as execution petition--Assailed--Suit for possession was decreed on the basis of compromise--Petitioner applied for preparation of decree sheet which was later on dismissed for non-prosecution--Execution petition was time barred and a fresh decree sheet was got prepared by decree-holder by making mis-statement--Petition was time barred and a fresh decree sheet was got prepared by decree-holder by making mis-statement before Court and there was resettlement between the parties through which the decretal amount was returned to decree holder--Executing Court held an inquiry--Execution petition was rejected by Executing Court--First appellate Court remanded the case--Challenge to--Validity--Executing Court while rejecting execution petition did not give any observation regarding oral assertion of judgment debtor and that order was not challenged in appeal nor cross objection in appeal--In presence of first decree sheet there was no need to get prepared the second one--Photo state copy of decree sheet was produced for showing that decree sheet was prepared earlier and decree holder filed a time barred execution petition by getting a fresh decree sheet which was obtained on basis of misstatement--Held: Executing Court cannot hold inquiry on a photo stat copy and cannot refuse to allow the execution petition validly filed on the basis of certified copy of decree sheet--Debtor could not produce any evidence regarding return of decretal amount to plaintiff--Further held: On basis of mere oral assertion of defendant the execution proceedings cannot be delayed further on basis of fake and ambiguous photo state of decree sheet. [P. 65] A & B
Mr. Amin-ud-Din Khan, Advocate for Petitioner.
Mr. Muhammad Amir Bhatti, Advocate for Respondent.
Date of hearing: 15.6.2009.
Order
This order shall dispose of Civil Revision Nos. 310-2009 and 229-2009 arising out of the same impugned judgment.
2. Through the above said civil revision petitions order dated 12.3.2009 passed by Addl. District Judge, Dera Ghazi Khan has been assailed by which he accepted appeal filed by Ahmad Khan petitioner of Civil Revision No. 310-2009 and remanded the case to the Executing Court with direction to frame additional issue and decide objection petition as well as execution petition afresh in accordance with law.
3. Brief facts of the case as stated by counsel for the petitioner are that petitioner's suit for possession through pre-emption against respondent Akhtar Hussain was decreed on 22.12.1996 on the basis of compromise effected between the parties. The petitioner applied for preparation of decree sheet of judgment dated 22.12.1996 which was later on dismissed for non-prosecution. The petitioner again filed another application for said purpose and decree sheet in above said suit was prepared on 23.12.2004. The petitioner after getting certified copy of decree sheet filed execution petition in the Executing Court on 3.1.2005. The respondent also filed an objection petition on the ground that execution petition is time barred and a fresh decree sheet has got prepared by the decree-holder by making mis-statement before the Court and there was re-settlement between the parties through which the decretal amount was returned to the decree-holder by the judgment-debtor and this was the reason that the execution petition was not filed within time. The execution petition as well as objection petition were contested by the parties and Executing Court held an inquiry after framing issues from divergent pleadings of the parties. The learned Executing Court rejected the execution petition filed by the petitioner vide order dated 26.5.2008. The petitioner filed appeal against the said order before the District Judge Dera Ghazi Khan and an application for holding of an inquiry regarding fabrication of decree sheet was also filed. The learned Addl. District Judge held an inquiry on application of the petitioner and remanded the case to the Executing Court for framing of additional issue vide judgment dated 12.3.2009, hence these civil revisions.
4. Counsel for the petitioner contends that the Executing Court has erred in law by holding inquiry as the Executing Court cannot go beyond the decree and the events after passing of decree could not be inquired into by the Executing Court like a Civil Court because the Executing Court cannot take the role of Civil Court. He submits that the Executing Court was bound to execute the decree on the basis of decree sheet filed by the decree-holder. Further submits that even in the pre-emption suit there was no need to file execution petition for execution of decree. The revenue filed staff could correct its entries in the light of decree sheet of Civil Court. He relied on 1972 SCMR 237, 1982 CLC 2395, 2004 MLD 402 and PLD 2006 Lahore 1000. He submits that the learned appellate Court erred in law while remanding the matter to the trial Court for recording of evidence after framing of additional issue. He submits that no order could be passed mere on the oral assertion of a party. The execution petition was filed for execution of a consent decree. Admittedly the judgment-debtor had made statement before the Court for receiving of decretal amount and he also withdrew zar-e-soim deposited by the plaintiff. His version that he after re-settlement with the plaintiff had returned the decretal amount to decree-holder seems to be un-plausible. He submits that the First Appellate Court was competent to determine the issue itself. The all material was available and specially keeping in view the inquiry conducted by the same Court there was no need to remand the case to the executing Court.
5. On the other hand learned counsel for respondent Akhtar Hussain and the petitioner of Civil Revision No. 229-D-2009 contends that to the extent of assertion of counsel for Ahmad Khan that the Addl. District Judge was fully empowered to decide the matter he concedes the arguments that appellate Court should decide/determine the issues itself instead of remanding the case to the Executing Court. However, he opposed the contentions of the counsel for Ahmad Khan that the matter may not be decided by this Court and to remand it back to First Appellant Court for its decision on merits. He submits that Ahmad Khan decree-holder has obtained another decree sheet through mis-statement as the same was issued much earlier and executing petition was time barred. He submits that the Executing Court may determine question relating to the decree. He relied on 1989 SCMR 640.
6. I have heard counsel for the parties and perused the record. The ground taken by the judgment debtor in his objection petition that he had returned the decretal amount to the decree holder as a result of re-settlement between the parties has no avail because no receipt or any other document has been produced by the judgment-debtor, even the Executing Court while rejecting execution petition of Ahmad Khan did not give any observation regarding oral assertion of the judgment-debtor and that order was not challenged by him in appeal nor cross-objection in the appeal of Ahmad Khan were filed. The other ground taken by Akhtar Hussain is that in the presence of first decree sheet there was no need to get prepared the second one. He produced a photo stat copy of decree sheet showing that the decree sheet was prepared earlier and decree-holder filed a time barred execution petition by getting a fresh decree sheet which was obtained on the basis of mis-statement. An inquiry was held on the application of Ahmad Khan in which three witnesses were examined, all of them are consistent that neither application form for certified copy was available nor was mentioned in the concerned register. The copying clerk deposed that the said photo stat was not prepared by him and stamp reflects on the photo stat did not of copying agency. In the circumstances there was no decree sheet except produced by Ahmad Khan decree-holder and Executing Court was bound to allow the same in the absence of any other decree sheet. The Executing Court cannot hold inquiry on a photocopy and cannot refuse to allow the execution petition validly filed on the basis of certified copy of decree sheet. Akhtar Hussain judgment debtor could not produce any evidence regarding return of decretal amount to the plaintiff. on the basis of mere oral assertion of the defendant the execution proceedings cannot be delayed further on the basis of fake and ambiguous photo stat of decree sheet.
7. For what has
been stated above Civil Revision No. 310-D-2008 filed by Ahmad Khan is allowed.
The order dated 26.5.2008 passed by
(R.A.) Order accordingly.