MUHAMMAD ALI and others vs GHULAM SARWAR and others

ORDER

1. ' NAIMUDDIN, J.--Respondents filed a suit for possession through preemption which was decreed and petitioners' appeal against the same was dismissed however, their second appeal is still pending.

2. ' Respondents applied for execution of the decree and claim to have obtained possession. The petitioners, however, moved an application before the Civil Judge, Layyah, contending therein that the land about which the decree had been passed was a share in joint holding and incapable of delivery of physical possession. And further claimed that the respondents had obtained fictitious report about the delivery of actual possession. The learned Civil Judge, by the order dated 2-5- 1985 accepted the application and held that no physical possession was or could be delivered to the respondents and the reports of the revenue agency were fictitious.

3. ' Respondents preferred an appeal with the District Judge, Layyah but failed leading to the filing of a revision petition before the Lahore High Court, Multan Bench, Multan and succeeded there.

4. ' Now the petitioners seek leave to appeal from the order dated 21-11-1988, passed in Civil Revision No,648 of 1985. Before the High Court it was contended that the decree was for joint possession and therefore no physical possession of the land could be delivered to the respondents in execution thereof and only a symbolic possession in accordance with Order XXI rule 35(2) of Civil Procedure Code could have been given to the petitioners. Dealing with this objection the learned Judge in the High Court observed that the decree in the present case was not for joint possession but for possession through partition and therefore, Order XXI rule 35(2) ibid has no application.

5. ' We have heard the learned counsel for the petitioners, he has raised the same objection before us. We asked him to produce the copy of the decree which was passed against the petitioners. Learned counsel expressed his inability to produce the same, however, we would presume that it was passed by the Civil Judges in accordance with the provisions of Order XX, Rule 14, C.P.C. Which provides as follows:-- "Decree in pre-emption suit. --(1) Where the Court decrees a claim to pre-emption in respect of a particular sale of property and the purchase-money has not been paid into Court, the decree shall--

(a) specify a day on or before which the purchase-money shall be so paid, and

(b) direct that on payment into Court of such purchase-money together with the costs (if any) decreed against the plaintiff, or before the day referred to in clause (a), the defendant shall deliver possession of the property to the plaintiff, whose title thereto shall be deemed to have accrued from the date of such payment but that, if the purchase-money and the costs (if any) are not so paid, the suit shall be dismissed with costs.

(2) .......................................

6. (a)

7. (b)

8. Therefore, the decree could be only for delivery of possession of the land sold and pre-empted by the respondents which, it is not denied, was a definite property and not a share in the joint property.

9. Therefore, Order XXI rule 35(1) will be applicable which reads as follows:-- "Decree for immovable property. Where a decree is for the delivery of any immovable property, possession thereof shall be delivered to the party to whom it has been adjudged, or to such person as he may appoint to receive delivery on his behalf, and if necessary, by removing any person bound by the decree who refuses to vacate the property."

10. It is, however, submitted that the decree was wrongly drawn up by the Civil Court. But it is well- settled principle that the executing Court cannot go behind the decree and has to execute it as it is unless the decree is patently a nullity which is not the case here. Reference, however, may be made to Brig. (Retd.) Muhammad Aslam Khan v. The Azad Government of the State of Jammu and Kashmir (1983 CLC 1204) and Messrs Haji Ahmed and Co. v. Muhammad Siddique and others (PLD l%5 (W.P.) Kar. 293).

11. ' We, therefore, find no merit in this petition and accordingly dismiss it.

12. ' Leave to .