2021 CLC 400 | AHMED MURTAZA Versus NASEERA FATIMA SUGHRA

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2021 C L C 400

2021 C L C 400

[Islamabad]

Before Lubna Saleem Pervez, J

AHMED MURTAZA----Appellant

Versus

NASEERA FATIMA SUGHRA and 2 others----Respondents

F.A.O. No.03 of 2020, decided on 30th December, 2020.

Civil Procedure Code (V of 1908) ---

----Ss.12(2) & 47---Executing Court, powers of---Scope---Plea of fraud and misrepresentation raised during execution proceedings---Propriety---Role of Executing Court was to execute the judgment and decree issued by the Trial Court, as such and in execution proceedings only those questions were considered which pertained to execution of decree---Section 47, C.P.C. provided the scope of jurisdiction of the Executing Court to the extent of determining the questions relating to execution, discharge or satisfaction of the decree between the parties to the suit---Executing Court was not legally permitted to go beyond the judgment and decree, passed by the Trial Court as the conclusion in judgment and decree was the outcome of long drawn process of recording evidence on facts---Executing Court thus, was not authorized to entertain any new question out of the same set of facts and record which was not raised during the course of trial as it would violate the mandate and scope of S.47, C.P.C. --- Allegations of fraud and misrepresentation, therefore, were not the questions to be determined by the Executing Court under S.47, C.P.C., at the time of execution proceedings---Questions of fraud and misrepresentation were to be raised and determined through institution of proceedings under S.12(2) of C.P.C., which provision had been specifically provided to challenge the validity and legality of judgment and decree obtained through fraud, misrepresentation or want of jurisdiction.

Allied Bank Limited v. M/s Fazal Vegetable ghee Mills and others 2019 CLD 441 and Muhammad Irfan through Special Attorney v. Naseer Ahmad and others 2019 YLR 1756 ref.

Saqib Jillani for Appellant.

Syed Riaz Hussain and Intizar Hussain Panjutha for Respondents.

Date of hearing: 25th November, 2020.

JUDGMENT

LUBNA SALEEM PERVEZ, J.----Appellant has filed instant first appeal under section 104 read with Order XLIII, Rule 1, C.P.C., to assail the order dated 16.12.2019, passed by learned Civil Judge 1st Class, (West) Islamabad, whereby objection petition filed by Respondent No.2/CDA was allowed and consequently execution petition filed by the appellant was dismissed, being not executable.

2. Succinct facts of the case are that the appellant filed a suit for specific performance of the sale agreements dated 19.04.2016 and 19.03.2018, and permanent and mandatory injunction against Respondents Nos. 1 and 2. During the trial proceedings, Respondent No.1 appeared and recorded her statement before the Trial Court on 16.10.2018, stating that she has no objection if the suit is decreed in favour of plaintiff/appellant. Learned Trial Court then, vide order dated 16.10.2018, directed Respondent No. 2/CDA to file reply to the following queries:-

i. Whether the allotment of plot No. 12, G-8 Markaz measuring 500 sq. yards, Islamabad, in the name of defendant No. 1 namely Naseera Fatima Sughra is still intact or not?

ii. Whether the Capital Development Authority has knowledge in respect of any other case with regard to above mentioned suit plot in any Court of law or not?

iii. Whether any stay order has been granted in any other case in respect of above mentioned suit plot?

3. Respondent No. 2/CDA, in compliance thereof, filed its report which is as under:-

i. As per record of Estate Management Directorate of CDA, suit property initially allotted to Mr. Dr. Major (R) Bilqees Mohammad Din vide letter CDA/EM-27(1223)/83 Dated 11-06-1983, later on Lease Agreement also executed between the allottee and CDA on 16-06-1983 which was duly registered in the Office of Sub-Registrar Islamabad. In March, 2003, suit property was transferred to Miss. Naseera Fatima Sughra D/o Khalid Aziz vide CDA Letter No. CDA/EM-27(1223)/83/1070 Dated March, 2003. CDA also issued confirmation of ownership - Plot No. 12-H/2, Markaz G-8, Islamabad in favor of Miss. Naseera Fatima Sughra on 3rd October, 2007.

ii. As per record of Estate of Management Directorate of CDA, there is no document regarding any other case in file.

iii. As per record of Estate Management Directorate of CDA, there is no any injunctive order regarding this suit plot.

4. Thereafter, the suit filed by the appellant was decreed in his favour by the learned Trial Court, vide judgment and decree dated 23.11.2018. The appellant filed Execution Petition on 20.07.2019, which was contested by Respondent No.2/CDA by filing objection petition which was allowed by the learned Executing Court, vide impugned order dated 16.12.2019, by dismissing the main execution petition holding it to be not executable. The appellant, being aggrieved, has filed present FAO.

5. Learned counsel for the appellant submitted that the suit property has been purchased by the Respondent No.1 from its original allottee; that the impugned order dated 16.12.2019, is illegal and unsustainable as the learned Executing Court acted beyond the parameters of section 47, C.P.C. as it could not entertain any new question of alleged fraud and misrepresentation; that the learned Executing Court cannot go behind and beyond the decree; that Respondent No. 2/CDA had not raised any objection or arguments before the learned Trial Court at the time of passing of judgment and decree; that no question regarding legality and validity of a decree can be raised at the time of its execution; that Civil Procedure Code provides separate mechanism under section 12(2) for the purposes of dealing with the decree obtained through misrepresentation and fraud; that there is no restriction for alienation of suit plot, vide Regulation 19 of Land Disposal Regulations, 1993, as according to this regulation all categories of plots are transferable on payment of transfer fee, except diplomatic plots and plot allotted through Housing Foundation; that throughout the proceedings, the Respondent No.2/CDA was in attendance and no question/objection regarding sale and transfer of the suit land was raised. He in support of his arguments by relying on case titled Muhammad Irfan through Special Attorney v. Naseer Ahmad and others (2019 YLR 1756) and Allied Bank Limited v. M/s Fazal Vegetable ghee Mills and others (2019 CLD 441), whereby it is held that Executing Court cannot extend its jurisdiction to go behind the decree and the question of its correctness. He, therefore, submitted that the impugned order dated 16.12.2019, is not sustainable in the eye of law.

6. On the other hand, learned counsel for the respondent submitted that the decree was obtained by misstatement and concealment of facts before the learned Trial Court; that it has been categorically mentioned vide clause 14(c) of the lease agreement dated 18.06.1983, executed between the CDA and its original allottee that the plot is non-transferable outside the family members; that the same condition also found mentioned in the allotment order dated 11.06.1983, vide clause xiii(b); that this plot is a community plot and thus, not transferable under the provisions of Islamabad Land Disposal Regulations, 2005. Learned counsel prayed for dismissal of instant appeal.

7. Arguments heard. Record perused.

8. Perusal of the record shows that the plot bearing No. 12, G-8 Markaz, Islamabad, was allotted to one Dr. Major (R) Bilquees Muhammad Din, vide allotment order dated 11.06.1983/lease agreement dated 18.06.1983 and as per record a hospital namely, Sughra Bilquees Memorial Hospital has been constructed over the said plot. The property was transferred to Respondent No.1 by its original allottee in March 2003, vide CDA Letter No. CDA/EM-27(1223)/83/1070 and the same was purchased by the present appellant, vide sale agreements dated 19.04.2016 and 19.03.2018. The appellant filed suit for specific performance of the said agreements to sell and during trial, Respondent No.1 agreed to perform her part of the agreement and with her consent the suit was decreed in favour of the appellant. It is pertinent to mention here that Respondent No.2/CDA was also a party to the suit and the learned Trial Court had put specific queries and highlighted issues regarding the suit property, vide order dated 16-10-2018, in compliance thereof issues wise reply was filed by the CDA, vide report dated 18-10-2018. The queries put by the learned Trial Court and the replies submitted by the CDA are reproduced as under:--

S.No.	Queries	Answer
i.	Whether the allotment of Plot No.12, G-8 Markaz measuring 500 sq. yards, Islamabad, in the name of defendant No. 1 namely Naseera Fatima Sughra is still intact or not?	As per record of Estate Management Directorate of CDA, suit property initially allotted to Mr. Dr. Major (R) Bilqees Mohammad Din vide letter CDA/EM-27(1223)/83 Dated 11-06-1983, later on Lease Agreement also executed between the allottee and CDA On 16-06-1983 which was duly registered in the Office of Sub-Registrar Islamabad. In March, 2003, suit property was transferred to Miss. Naseera Fatima Sughra D/o Khalid Aziz vide CDA Letter No. CDA/EM-27(1223)/83/1070 Dated March, 2003. CDA also issued confirmation of ownership - Plot No. 12- H/2, Markaz G-8, Islamabad in favor of Miss. Naseera Fatima Sughra on 3rd October, 2007.
ii.	Whether the Capital Development Authority has knowledge in respect of any other case with regard to above mentioned suit plot in any Court of law or not?	As per record of Estate of Management Directorate of CDA, there is no document regarding any other case in file.
iii.	Whether any stay order has been granted in any other case in respect of above mentioned suit plot?	As per record of Estate Management Directorate of CDA, there is no any injunctive order regarding this suit plot.

9. On the basis of above report, the learned Trial Court proceeded to decree the suit of specific performance, vide judgment and decree dated 23.11.2018, in favour of the appellant considering the above report to be based on the record of the suit property maintained with the CDA. However, after filing of execution petition under Order XXI Rule 11 of C.P.C. by the appellant on 20.07.2019, the respondent CDA filed objection petition on 25.10.2019, assailing the judgment and decree dated 23.11.2018, to be not executable on the ground that the suit property is not transferable outside the family of the original allottee, in terms of clause xiii (b) of the allotment order and that Regulation 9 of the Islamabad Land Disposal Regulations, 2005, also barred the transfer of amenity plots. The learned Executing Court accepted the objection petition on the ground that the appellant in order to obtain the judgment dated 23.11.2018, has concealed the letter of CDA bearing No.CDA/EM-27(1223)/83/3171-3174, dated 25.04.2018, wherein they were informed that the suit property is not transferable outside the family members. He also relied on Regulation 9 of the Islamabad Land Disposal Regulations, 2005, for allowing the objection petition filed by Respondent No.2. Perusal of the above facts shows that the CDA issued letter dated 25.04.2018 to Respondent No.1 intimating that suit property is not transferable beyond family members, whereas, Respondent No.2/CDA, vide its report dated 16.10.2018, nowhere took said objection of non-transferable status of the suit property. Moreover, the allotment letter dated 11.06.2018, as well as lease agreement dated 18.06.1983, were part of the record available with the Respondent No.2 all the time but the Respondent No.2 opted to remain silent over it perhaps, for the reason that the restriction of transfer of the suit property only to family members is only to the extent of completion of building to the satisfaction of the authority and compliance of its terms and conditions and thereafter with the previous permission of Respondent No.2, in writing, the sale deed could be registered and executed for transfer of rights in the plot, vide clause-xiv of the allotment letter dated 11.06.1983 which is also reproduced as under:-

"xiv.(a) On the completion of the building to the satisfaction of the Authority and compliance with other terms and conditions of the agreement referred to in clause (iv) above the Authority will at your expense and cost execute and register a sale deed in your favour.

(b) Except with the previous permission of the Authority in writing you shall not until after the execution and registration of the sale deed as stated in conditions xiv (a) above transfer your rights in the plot by sale, sub-lease, mortgage, gift or otherwise, provided that nothing herein contained shall apply to a mortgage of such rights to any authorized loan giving agency with the prior approval of the Authority.

(c) The allottee may, after the registration of the deed transfer with the previous consent of the authority in writing her rights in the plot but subject to the provisions of any law, bye-law, rule, regulations or other instructions having the force of law and applicable to the allottees' right in the plot.".

10. The learned trial court without giving due consideration to the record of the case, allotment letter dated 11.6.1983 and the lease agreement dated 18.6.1983, has allowed the objection petition of the CDA, merely on the basis of letter dated 25.4.2018, which he considers to be concealment on the part of the Appellant by ignoring the fact that it was CDA which had issued the said letter and opted to remain mum during the entire trial proceedings and concealed the same while filing compliance report dated 16.8.2018. The CDA, therefore, has wrongly taken the plea of obtaining the judgment and decree dated 23.11.2018 through fraud, in the objection petition. It is thus apparent that the impugned order dated 16.12.2019, is based on misreading and non-reading of record.

11. Besides above factual aspect of the case, the impugned order also suffers from legal infirmity to the effect that the Learned Trial Court has travelled beyond the bounds of section 47, C.P.C. as the role of Executing Court is to execute the judgment and decree issued by the Trial Court, as such and in execution proceedings only those questions are considered which pertain to execution of decree. Section 47, C.P.C. is also reproduced below for reference:-

"47. Questions to be determined by the Court executing decree.... (1) All questions arising between the parties to the suit in which the decree was passed, or their representatives, and relating to the execution, discharge or satisfaction of the decree, shall be determined by the Court executing the decree and not by a separate suit.

(2) The Court may, subject to any objection as to limitation or jurisdiction, treat a proceeding under the section as a suit or a suit as a proceeding and may, if necessary, order payment of any additional Court-fees.

(3) Where a question arises as to whether any person is or is not the representative of a party, such question shall, for the purposes of this section, be determined by the Court. ".

12. Section 47, C.P.C. provides the scope of jurisdiction of the Executing Court to the extent of determining the questions relating to execution, discharge or satisfaction of the decree between the parties to the suit. The Executing Court is not legally permitted to go beyond the judgment and decree, passed by the trial Court as the conclusion in judgment and decree is the outcome of long drawn process of recording evidence on facts. The Executing Court thus, is not authorized to entertain any new question out of the same set of facts and record which was not raised during the course of trial as it would violate the mandate and scope of section 47, C.P.C. This Court, vide judgment reported as "Allied Bank Limited v. Messrs Fazal Vegetable Ghee Mills and others" [2019 CLD 441] while placing reliance on the judgments of the Hon'ble Apex Court, has laid down the following principles with regard to the jurisdiction of the learned Executing Court:-

"14. Following the principles laid down in the Ghulam Muhammad case Supra, the august Supreme Court has consistently held that an executing Court cannot extend its jurisdiction to go behind the decree and question correctness. Reference may be made to the cases "Syed Riaz Ahmad and another v. Dayal Singh College Trust Society and another" [1972 SCMR 237], "Muhammad Ali and others v. Ghulam Sarwar and others" [1989 SCMR 640], "Mst. Naseem Akhtar and 04 others v. Shalimar General Insurance Company Ltd. and 02 others" [1994 SCMR 22], "Fakir Abdullah and others v. Government of Sindh through Secretary to Government of Sindh, Revenue Department Sindh Secretariat and others" [PLD 2001 SC 131], "Allah Ditta v. Ahmed Ali Shah and others" [2003 SCMR 1202], "Rehmat Wazir and others v. Sher Afzal and others" [2005 SCMR 668] and "Muhammad Ali v. Zakir Hussain" [PLD 2005 Lahore 331]. Two judgments have referred to exceptions to the established rule an executing court cannot look beyond the decree or look into the judgment, and the same are as follows:

(1) When the decree is silent regarding what property was the subject matter of execution, then only in such an eventuality the executing court can look into the judgment in order to find the said property. 2003 SCMR 1202.

(ii) The executability of a decree can be questioned by the executing court if it is satisfied that (a) the decree is a nullity in the eyes of the law, (b) it has been passed by a Court having no jurisdiction (c) the execution of the decree will not infringe the legal rights of the decree holder, if refused to be executed or (d) the decree has been passed in violation of any provision of law. PLD 2001 SC 131.

Hon'ble Lahore High Court, vide judgment passed in case titled "Muhammad Irfan through Special Attorney v. Naseer Ahmed and others" [2019 YLR 1756] has also observed that:-

"It is a settled rule that all questions that pertain to the pre-decretal matters shall be raised in defence during trial and could not be allowed to be raised in execution proceedings. Executing Court cannot go behind or beyond the decree".

13. Allegations of fraud and misrepresentation, therefore, are not the questions to be determined by the learned Executing Court under section 47, C.P.C., at the time of execution proceedings. Moreover, questions of fraud and misrepresentation are to be raised and determined through institution of proceedings under section 12(2) of C.P.C., which provision has been specifically provided to challenge the validity and legality of judgment and decree obtained through fraud, misrepresentation or want of jurisdiction.

14. Perusal of the record also reveals that no appeal was filed against the judgment and decree dated 23.11.2019, by Respondent No.2, as the same was the result of a consenting statement duly admitted by the Respondent No.2, vide its report dated 16.10.2018, and no separate application under section 12(2), C.P.C. was also filed whereby the objection of obtaining decree through fraud has been raised, therefore, at the execution stage the raising of objections challenging the validity and legality of judgment and decree is unlawful, unwarranted and without jurisdiction and to frustrate the execution proceedings.

15. In view of the above, I am of the considered opinion that the findings of the learned Executing Court, vide order dated 16.12.2019, are contrary to the record as well as the law on the subject, hence, are not sustainable in the eye of law. The appeal is, therefore, allowed and the impugned order dated 16.12.2019, passed by the learned Executing Court is, therefore, set-aside and the matter is remanded back to said Court, for execution of the judgment and decree dated 23.11.2019, keeping in view the observations made hereinabove, and strictly in accordance with law.

MWA/4/Isl. Appeal allowed.