JUDGMENT SHEET

HIGH COURT OF SINDH, BENCH AT SUKKUR

Before Mr. Justice Syed HasanAzhar Rizvi

Mr. Justice Muhammad Humayon Khan

C.P. Nos. D- 1074 & 1075 of 2016

PETITIONERS	:	Syed Muhammad Ismail Shahand another through Mr. Syed Jaffar Ali Shah, Advocatealongwith Attorney of the petitioners Syed Mureed Ali Shah
RESPONDENTSNOS.1, 3TO6	:	Pakistan through Secretary Communication & Works and others through Mr. Ahmed Ali Shahani, AAG
RESPONDENT NO.7	:	M/s. Hussain Construction Company (not represented)
RESPONDENTNO.2	:	Chairman National Highway Authoritythrough Mr. Khan Muhammad BangashAdvocate.
DATE OF HEARING	:	14.03.2017
DATE OF JUDGMENT	:	14.03.2017

JUDGMENT

Muhammad Humayon Khan, J:Initially, the petitioners filed Civil Revision Applications Nos. 32 and 33 of 2004 against the common Order dated 29.03.2014 passed by the learned IInd Additional District Judge, Khairpur, in Civil Appeals Nos.29 and 30 of 2014, whereby, two Orders dated 26.02.2014 passed by the learned Senior Civil Judge, Gambat, on two applications namely (i) Application for re-opening of execution application and (ii) Application for increasing/re-calculating the decreetal amount from Rs.94,46,870/- to Rs.14,37,62,481/- were set-aside. Later on, by Order dated 14.03.2016 both the said civil revision applications were converted into above constitution petitions. Since, the facts and legal points are same, we intend to decide both the petitions by this common Judgment.

2) The relevant facts for the disposal of these petitions are thaton 24.12.2001, petitioners filed a Civil Suit No. 41of 2001 for declaration, compensation and permanent injunction against the respondents pleading therein that in the year 1993, the respondents acquired an area of 3.05 acres of their land having petrol pump etc. over it, for construction/extension of National Highway and for this purpose, Notification under Section 4 of the Land Acquisition Act, 1874 (hereinafter referred to as “the said Act”) was issued on 25.11.1993, which was followed by another Notification under Section 6 of the said Act and taking over of possession of acquired land on 25.01.1994, but as yet no Award has been made and no compensation has been paid to them for their lawful acquired land. The suit was contested between the parties and ultimately the suit of the petitioners was decreed as prayed by the Trial Court vide Judgment dated 10.05.2005,which was challenged by the respondents in Civil Appeal No.51 of 2005 before the learned Additional District Judge, Gambat, who dismissed the said appeal vide Judgment dated 13.04.2006. The concurrent findings of the two Courts below were thereafter challenged by the respondents before this Court in Civil Revision No.75 of 2006, which was also dismissed vide Judgment dated 20.07.2009. Against the concurrent findings of three Courts below, the respondents filed Civil Appeal No.38-K of 2010 before theHon’ble Supreme Court,which was dismissed by Order dated 17.05.2013 being devoid of merits. After dismissal of the said appeal by the Hon’ble Supreme Court, the petitioners filed two applications under Section 151 CPC before the Executing Court, whereby Execution Application was reopened and decreetal amount was re-calculated by Orders both dated 26.02.2014, which were challenged before the learned 2^nd Additional District Judge, Khairpur, in Civil Appeals Nos. 29 and 30 of 2014, which were allowed by the impugned Orders and Orders of the Executing Court were set- aside. Against the common impugned Orders, the petitioners have filed the instant petitions.

3) We have heard the learned counsel for the petitioners and respondentsas well as learned AAG and perused the material available on record.

4) The learned counsel for the petitioners contended thatsince the Execution Application was pending for sufficient time, therefore, Executing Court was competent to pass an order reopening the same when no appeal was pending before any higher Court. He further contended that the Trial Court had not calculated the real amount of compensation at the time of deciding suit and now the Executing Court has correctly calculated the compensation amount. He further contended that valuable land and petrol pump of petitioners had gone under the construction of Road and respondents had not paid the compensation amount calculated by the Executing Court and filed appeals before appellate Court to avoid paymentof the said amount although neither the calculation of amount by the Executing Court is illegal nor the Orders passed by the ExecutingCourt on applications under Section 151 CPC. In support of his contentions, learned counsel for petitioners relied upon the following case-law:-

i) Syed Saadi Jafri Zainabi Vs. Land Acquisition Collector and Assistant Commissioner (PLD 1992 Supreme Court 472);

ii) BP Pakistan Exploration and Production, through AttorneyVs.Sher Ali Khawaja and another (PLD 2008 Supreme Court 400);

iii) Imamuddin Shah through AttorneyVs. Deputy District Officer (Rev.) and Land Acquisition CollectorSanghar and another (2005 MLD (Karachi) 69);

iv) Engineer Jameel Ahmad Malik and 9 othersVs. Land Acquisition Collector,Attock and 3 others (2004 MLD (Lahore) 523);

v) AbdulQadir and 5 othersVs. A.C./Collector, Quetta and another (2003 YLR (Quetta) 199).

5) On the other hand, the learned counsel for respondents contended that the concurrent findings of threeCourts below in favour of the petitioners were challenged before the Hon’ble Supreme Court by the respondents in Civil Appeal No.38-K of 2010, which was dismissed vide Order dated 17.05.2013 and hencethe decision attained finality. He further contended that Execution Application filed by the petitioners before the Trial Court was pending due to pendency of appeals, but no stay order was granted by the appellate Court to stay the execution proceedings, therefore, Orders for reopening the Execution Application and re-calculation of amount on applications under Section 151 CPC were totally irregular, illegal, null and void and the same were rightly set-aside by the learned Additional District Judge. He further contended that Trial Court had decreed suit for compensation of an amount of Rs.94,46,870/- and that amount was neither increased nor decreased by any Appellate Court but the Judgment and decree passed by the Trial Court was maintained as it is uptoHon’ble Supreme Court, as such Executing Court was not competent to go beyond the decree, hence the Appellate Court has rightly set-aside the Orders passed by the Trial Court on applications under Section 151 CPC by the impugned Orders.

6) The learned AAG supported the arguments advanced by the learned counsel for the respondents.

7) We have carefully gone through the following case-law relied upon by the learned counsel for the petitioners and came to the conclusion that none of the said case-law is applicable to the facts of the instant petitions in as much as all the reported cases pertain to the land acquisition proceedings under the Land Acquisition Act, 1874 after the Award was passed by the Land Acquisition Officer, whereas, the present case is entirely different as neither land acquisition proceedings were commenced nor any Award was passed but the petitioners instead of approaching the Land Acquisition Officer to commence the land acquisition proceedings filed civil suit, which is of civil nature and the procedure prescribed under the Land Acquisition Act,1874 is not applicable in the civil suits:-

i) Syed Saadi Jafri Zainabi Vs. Land Acquisition Collector and Assistant Commissioner (PLD 1992 Supreme Court 472);

ii) BP Pakistan Exploration and Production, through AttorneyVs.Sher Ali Khawaja and another (PLD 2008 Supreme Court 400);

iii) Imamuddin Shah through AttorneyVs. Deputy District Officer (Rev.) and Land Acquisition CollectorSanghar and another (2005 MLD (Karachi) 69);

iv) Engineer Jameel Ahmad Malik and 9 othersVs. Land Acquisition Collector,Attock and 3 others (2004 MLD (Lahore) 523);

v) AbdulQadir and 5 othersVs. A.C./Collector, Quetta and another (2003 YLR (Quetta) 199).

8) It appears that after full-fledged proceedings in the suit before the Trial Court, it was established that the disputed land owned by petitioners was utilized by the respondents for the construction of national carriageway of National Highway after issuing Notifications under Sections 4 and 6 of the Land Acquisition Act, 1874, but thereafter neither any Land Acquisition Officer was appointed nor land acquisition proceedings were commenced and therefore no Award for compensation was passed. Admittedly, the concurrent findings of the three Courts below were maintained upto the Hon’ble Supreme Court. However, after dismissal of appeal by the Hon’ble Supreme Court, petitioners moved applications under Section 151 CPC before Executing Court and by Orders dated 26.02.2014, the Executing Court reopened the Execution Application and increased/recalculated the decreetal amount. Since, the matter had already attained finality and thus the Orders dated 26.02.2014 passed by the learned Senior Civil Judge, Gambat (Executing Court) were beyondthe powers of Executing Court and hence without jurisdiction, null and void having no legal effect whatsoever and accordingly the same were rightly set- aside by the Appellate Court vide impugned Orders.

9) In the case ofSardarAhmed Yar Khan Jogezai and 2 others Vs. Province of Balochistanthrough Secretary, C & W Department reported in 2002 SCMR 122,the Hon’ble Supreme Court has held that:-

“The said substitution or drastic amendment could not have been made by the learned executing Court which in fact amounts to a futile attempt to frustrate the object of Judgment and Decree dated 04.11.1985 which had already attained finality and thus the Order dated 13.04.1989 passed by the learned District Judge Loralai (Executing Court) is arbitrary, capricious and coram-non-judice. It worth mentioning that executing Court could not go beyond the decree. It is well‑settled by now that "when decree passed attained finality it had got to be executed even if it was erroneously passed. Executing Court cannot rectify any mistake in decree which would tantamount to going behind decree." (Messrs Haji Ahmed &. Co. v. Muhammad Siddique and others (PLD 1965 Kar. 293, GhanayaLal and others v. Punjab National Bank Ltd., Lahore AIR 1932 Lah. 534 and Abdul Khatiq v. Haji PLD 1983 Lahore 445). A similar proposition was discussed in case titled Topanmal v. KundomalGangaram (AIR 1960 Supreme Court 388) that "the executing Court could not go behind the decree and given relief to the plaintiff which was expressly denied to him in the suit. A Court executing a decree cannot go behind the decree; it must take the decree as it stands, for the decree is binding and conclusive between the parties to the suit". In fact the original judgment/decreedated 21‑5‑1977 was passed by the same District Judge in the capacity as Civil Judge and, therefore, the controversy should not have been resolved by him which aspect of the matter has been ignored for the reason best known to the learned District Judge himself”.

10) The learned counsel for the petitioners has not been able to show any legal error in the impugned Orders passed by the learned Additional District Judge, which are passed in accordance with law and do not call for any interference by us in the constitutional jurisdiction.

11) In view of the above discussion, the instant petitions alongwith the listed applications were dismissed by us vide short Order dated 14.03.2017 and the above are the reasons for our said short Order.

JUDGE