Rao TAMKEEN ALI KHAN vs MUHAMMAD ASLP.M and others
This matter concerns the dismissal of execution applications for non-prosecution by the executing court, which was subsequently upheld by the High Court in revision. The core legal question was whether the executing court acted correctly in dismissing the execution petitions for non-prosecution on a date that was not fixed for a hearing, but rather for the submission of a report by the bailiff. The Supreme Court found that the executing court erred in dismissing the petitions, as the date in question was not a hearing date, and the High Court further erred in assuming the absence of the petitioner's counsel. Consequently, the Supreme Court set aside the orders of the courts below, converted the petitions into appeals, and remanded the matter to the executing court for disposal in accordance with the law. The key principle laid down is that an executing court cannot dismiss an execution application for non-prosecution on a date fixed merely for a report, as such an action is procedurally improper and constitutes a failure to exercise jurisdiction correctly.
- Can an executing court dismiss an execution application for non-prosecution on a date fixed only for the submission of a bailiff's report?
- Is it legally permissible for an executing court to dismiss an execution petition when the date was not fixed for a hearing?
' IRSHAD HASAN KHAN, J.---Through this common order we intend to dispose of Civil Petitions for Leave to Appeal Nos. 981-L to 987-L of 1997, arising out of a consolidated judgment dated 12-5-1997, passed in Civil Revisions Nos.490 to 496 of 1997.
2. The execution applications filed by the petitioner for execution of the decree dated 20th April, 1990, passed by Civil Judge, Chunian, District Kasur, were dismissed for non-prosecution by order dated 26th of November, 1992.
3. We have heard the learned counsel for the petitioner and Ch. Muhammad Anwar, learned Counsel for the respondents/caveator and find that the execution applications were not fixed for hearing on 26-11-1992 and it was only for the submission of the report, after seeking police assistance, by the bailiff of the Civil Court. Thus, visualized, the executing Court was wrong in dismissing the execution petitions and not restoring the same on application moved by the petitioner. The learned Judge in Chambers was also wrong in dismissing the revision petitions filed by the petitioner on the erroneous assumption that the counsel for the petitioner was not present on the date of hearing.
4. We, therefore, convert these petitions into appeals and allowing the same set aside the orders of the Courts below and remit the case to the executing Court to dispose of the execution applications in accordance with law. The parties are directed to appear before the executing Court on 27th July, 1998.