RIAZ HUSSAIN and others vs MUHAMMAD AKBAR and others

' QAZI MUHAMMAD FAROOQ, J.---This is an appeal, by leave of the Court, from the judgment dated 5-7-1995 rendered by a learned Judge in Chambers of the-Lahore High Court in Civil Revision No, 474 of 1995.

' The facts are not disputed. Put shortly, the same are that land measuring 7 Kanals, 7 Marlas situate in village Murakiwal, District Sialkot was sold through a registered sale-deed dated 18-10- 1961 by one Mubarik Ali to Muhammad Din for a sum of Rs,3,500. The transaction was followed by a suit for possession of the alienated land through pre-emption filed jointly by Muhammad Khan, predecessor-in-interest of the appellants and one Faqir Hussain. The suit was decreed on 29-10- 1963 and the pre-emption amount was deposited by the successful pre-emptors in accordance with the terms of the judgment and decree dated 23-11-1963. The appeal preferred by the vendee was, however, allowed by the learned District Judge, Sialkot on 18-2-1965 on the ground that one of the pre-emptors, namely, Faqir Hussain was not possessed of a right of pre-emption. The judgment and decree thus passed was challenged by Muhammad Khan pre-emptor through Regular Second Appeal No, 580 of 1965 filed in the Lahore High Court wherein a prayer was made for deletion of the name of Faqir Hussain from the array of the plaintiffs. The appeal was accepted on 1-6-1977, the name of Faqir Hussain was deleted from the panel of the plaintiffs and Muhammad Khan was held to be the sole decree-holder. The vendee filed a petition for leave to appeal while the decree-holder filed execution petition which was consigned to the record room pursuant to a stay order issued by this Court. The petition for leave to appeal was dismissed on 28- 5-1984. The decree-holder instead of getting the executich petition restored got entered Mutation No,546, on the basis of the judgment and decree passed in his favour, which was attested on 27- 10-1993. In the meantime the pre-emptor and the vendee died. The legal heirs of the vendee challenged Mutation No,546 through two suits but the same were dismissed on 17-5-1994 as a result of an undertaking from the other side that their possession would not be disturbed. It was, however, held that the pre-emptor had become the owner of the land in dispute in view of the dictum reported in PLD 1973 Lahore 207 (Ali Ahmad and another v. Muhammad Fazal and another).

An appeal was filed before the District Judge but without any success as the plaint was rejected under Order VII, rule 11, C.P.C. Thereafter, the legal heirs of the vendee filed an objection petition under section 47, C.P.C. But it was dismissed by the Executing Court on the ground that it was not maintainable for want of an execution petition. The appeal filed by them was also dismissed on 20- 11-1994. Feeling aggrieved they filed a civil revision in the High Court which was allowed in the following terms:- ' "The upshot of the above discussion is that this revision petition is accepted with no order as to costs. The result is that the objection petition under section 47, C.P.C. Of the petitioner would be deemed pending before the Executing Court who shall decide all questions including legality of Mutation No,546 expeditiously and in any case before the 23rd of December, 1995."

3. Leave was granted to consider whether the objection petition filed by the respondents under section 47, C.P.C. Was maintainable in the absence of an execution application.

4. Mr. Taqi Ahmad Khan, learned counsel for the appellants contended at the outset that existence of an execution petition was a pre-condition for filing of an objection petition because objection to the execution of the decree envisaged by Order XXI, rule 23, C.P.C. Can be made by the judgment- debtor only when an application for execution of the decree is made by the decree-holder and a notice is issued to him under Order XXI, rule 22, C.P.C. He further contended that the expression "desires" used in Order XXI, Rule 10, C.P.C. Clearly indicates that filing of an execution petition depends upon the desire of the decree-holder and if he elects not to file an execution petition the judgment-debtor has got no locus standi to raise any objection about the method of satisfaction of the decree adopted by him. It was also contended that the pre-emptor was well within his right to get Mutation No,546 attested in his favour in view of provisions of Order XX, rule 14(b), C.P.C. And the objection petition was devoid of substance.

5. Mr. Gul Zarin Kiani, learned counsel for the respondents, on the other hand, defended the impugned judgment by contending that an objection petition is maintainable without an execution petition as held in M.P. Shreevastava v. Veena (AIR 1967 SC 1193) and National Bank of Pakistan v.

Ch. Auto Tools Agency (PLD 2001 Lah.135). He went on to contended that if existence of an execution petition is held to be a condition precedent for filing of an objection petition then judgment-debtor will be left with no forum for redressal of his grievance. He further contended that if a contrary view is taken the judgment-debtor in the present case will be left without a remedy, notwithstanding serious objections in regard to executability of the decree raised in the objection petition, because the decree-holder having got the decree satisfied through attestation of a mutation had neither got the previous execution petition restored nor filed a fresh one. He also contended that scope of section 47, C.P.C. Is wide enough to permit filing of an objection petition in the absence of an execution petition.

6. The only question for decision in this appeal is whether an objection petition filed by a judgment- debtor under section 47, C.P.C. Is maintainable when there exists no application for execution of the decree. The question was answered in the affirmative in the impugned judgment mainly on the strength of the judgment of the Supreme Court of India reported as M.P. Shreevastava v. Veena (AIR 1967 SC 1193) wherein an identical controversy was resolved in favour of the judgment-debtor with the following observations:-- ' "The principle of section 47, C.P.C. Is that all questions relating to execution, discharge or satisfaction of a decree and arising between the parties to the suit in which the decree is passed, shall be determined in the execution proceeding, and not by a separate suit; it follows as a corollary that a question relating to execution, discharge or satisfaction of a decree may be raised by the decree-holder or by the judgment-debtor in the execution department and that pendency of an application for execution by the decree-holder is not a condition of its exercise,"

7. The above view is unexceptionable and while agreeing with 'the rationale and reasoning thereof we would like to add that the scope of section 47, C.P.C. Is very wide inasmuch as the objection petition filed thereunder by a judgment-debtor is akin to a suit and for that very reason it contains an in-built provision empowering the Court to treat the objection petition as a suit subject to certain conditions. The view tends to advance the object of the legislature and provide an opportunity to the judgment-debtor to make an objection petition even if the decree-holder withholds the execution petition and gets the decree satisfied through some other mode. A contrary view would certainly limit the scope of section 47, C.P.C. And thus militate against the object and intention of the Legislature. It will also take the judgment-debtor to a point where he is left with no remedy and forum of redressal of his grievance as has happened in the present case.

The respondent has been left high and dry due to non-filing of an execution petition by the decree- holder. The right to file an objection petition conferred on the judgment-debtor by the Code of Civil Procedure is a vested right which cannot be denied by blowing the expression "desires", used in Order XXI, rule 10, C.P.C. Out of proportion or raising a hypertechnical ground that non-filing of an execution petition is a bar to the maintainability of an objection petition. Lastly, the view is in line with the well-known principle of interpretation of statutes that a statute should be interpreted in a manner which suppresses the mischief and advance the remedy. It is also supported by the observations made in Manager, Jammu and Kashmir State Property v. Khuda Yar (PLD 1975 SC 678) that mere technicalities unless offering any insurmountable hurdle should not be allowed to defeat the ends of justice and the logic of words should yield to the logic of realities.

8. Adverting to the leave granting order we feel no hesitation in holding that pendency of an application for execution of the decree is not condition precedent for filing of an objection petition under section 47, C.P.C. The objection petition in question is, therefore, maintainable.

' For the foregoing reasons, the appeal is dismissed. Parties to bear their own costs.