MUHAMMAD AFZAL and 4 others vs BASHIR AHMED and 4 others

' MAULVI ANWARUL HAQ, J.---A suit filed by the petitioners for specific performance of an agreement against one Mst. Deshan Bibi was decreed on 24-11-1997. An execution application was filed on 18-9-1998. In execution of the decree, a sale-deed was executed and got registered in favour of the petitioners. Warrants for possession were issued which were executed on 25-3-2000.

On 4-10-2000 the respondents filed an objection petition. The precise objection was that the land measuring 2 Kanals, 15 Marlas comprising Khasra No.1221 was not the subject-matter of the suit, the decree, the agreement or the sale-deed but the possession has been delivered to the petitioners by the bailiff. According to them, they had purchased the suit-land vide sale-deed dated 8-1-1991 and were in possession. They accordingly prayed for restoration of possession. The petitioners replied that the objections are barred by time and that the objectors have nothing to do with the said Khasra number. According to them, the Khasra number, in fact, was the subject-matter of the suit. The objections were dismissed by the learned Executing Court. On 22-10-2001 primarily for the reasons that these were found to be barred by time and some factual findings were also recorded to state that the objections are not correct. A first appeal filed by the respondents was allowed by a learned A.D.J., Chunian, who remanded back the case to the learned Executing Court to conduct an investigation in the matter as prima facie Khasra No.1221 was not mentioned in the plaint, the agreement, the decree or the sale-deed.

2. Learned counsel for the petitioners contends that since the respondents were not parties to the suit, the case was not covered by section 47, C.P.C. And the application was filed beyond the time prescribed in Article 165 of the Limitation Act, 1908. They further explained that upon a reading of the plaint, the agreement and the sale-deed and consequently the decree-sheet, the said Khasra number was part of the Khata wherefrom the land was agreed to be sold and was ultimately sold.

It is further being contended that the sale-deed in favour of the respondents also does not contain any mention of Khasra No.1221. Learned counsel for the respondents, on the other hand, contends that a question of title and possession is involved and the learned A.D.J. Has only ordered an inquiry to determine the factual position and as such a case for interference in revisional jurisdiction is not made out. According to him, all the said questions can be determined only after an inquiry.

3. I have gone through the copies of the records, with the assistance of the learned counsel for the parties. So far as the question of limitation is concerned a radical change was made in the law vide Law Reforms Ordinance, 1972 inasmuch as whereas earlier all orders passed under section 47, C.P.C. Were included in the definition of decrees but by virtue of A the said amendment Ordinance all orders except those passed, inter alia, under rules 101 and 103 of Order XXI, C.P.C. Were made appealable as orders under section 104(FF), C.P.C. While the said orders were brought under the definition of a decree as given in section 2(2), C.P.C. The reason apparently was that whereas earlier, a person aggrieved of an order passed under the said provision could file a suit, after the amendment such a suit is barred. Thus, the question or the right to file the said application has attained an added significant. Since it is not the function of this Court to provide omissions or to amend statutory provisions, I will not be discussing this matter any further. For the present case, it cannot be ruled out that the respondents acted under the impression that the matter being governed A by section 47, C.P.C. And proceeded to file the application beyond the prescribed period of 30 days. However, without prejudice to any proceedings to be undertaken by the learned Executing Court, I may note here that in case the contents of the objections are found to be correct then the order impugned before the learned A.D.J. Was tantamount to approving the delivery of possession of the property, which was not subject-matter of the suit. The learned A.D.J. Had acted within his domain to interfere. Besides I am in agreement with the learned counsel for the respondents that this is a matter, which calls for an investigation or an inquiry and needs to be determined which will be for the benefit of both the parties.. The contentions of the learned counsel for the petitioners are accordingly left open to be considered by the learned Executing Court during the course of inquiry to be conducted by him as directed by the learned A.D.J. With these observations, the civil B revision is disposed of. No orders as to costs.

4. A copy of this judgment be remitted to the learned Executing Court.