Deputy Director NHA Vs Ikramullah Khan & another

JUDGMENT SHEET

IN THE PESHAWAR HIGH COURT,

MINGORA BENCH (DAR-UL-QAZA), SWAT

(Judicial Department) W.P No. 782-M/2025 with Interim Relief Deputy Director, National Highway Authority, Malakand Division..................(Petitioner) vs Ikramullah Khan & another.........(Respondents) Present: Mr. Farid Ullah Khan, Advocate for petitioner.

Mr. Shahzad Anwar, Advocate for respondent No. 1 Date of hearing: 25.09.2025

JUDGMENT

SABIT ULLAH KHAN, J.- The petitioner, has invoked the constitutional jurisdiction of this Court under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, with the following prayer:

“It is therefore, humbly prayed that on acceptance of this writ petition, this Hon’ble Court may pleased to declare the impugned order and judgment as illegal and against the law by setting aside the same and consequently by allowing the objection petition, the execution petition may kindly be dismissed being non- executable.

Grant any other relief deemed just and proper by this Court for the interest of justice.”

2.The factual matrix is concisely stated that respondent No.1 filed a complaint against the Sikandar Hayat/ (D.B) HON’BLE MR. JUSTICE SABIT ULLAH KHAN

HON’BLE MR. JUSTICE QAZI JAWAD EHSANULLAH

petitioner-department alleging that during the widening and reconstruction of N-95 road several side drains and retaining structures were demolished but not reconstructed upon completion of the project, This omission, it was alleged, caused hardship to inhabitants of villages Qambar and Balogram. The petitioner-department contested the allegation before the trial court. By order dated 25.05.2022 the trial court directed the petitioner-department to reconstruct 500 feet of demolished drains and to erect a retaining wall for the protection of the road and adjoining land within two months. Thereafter respondent No.1 instituted execution petition.

3.In the execution proceedings the

petitioner-department filed objections, contending, inter alia, that the decree was incapable of execution owing to the existence of underground gas pipelines, optical-fiber cables, electricity poles and transformers at the site furthermore, the peculiar topography of land at the site created a technical impediment. The learned trial court appointed a local commission which duly inspected the site and submitted its report and deposed before the Court as CW-1. An additional objection petition was also subsequently filed on behalf of Qaum Dawlatkhel and Mir Khel. However, by order dated Sikandar Hayat/ (D.B) HON’BLE MR. JUSTICE SABIT ULLAH KHAN

HON’BLE MR. JUSTICE QAZI JAWAD EHSANULLAH

24.05.2025, the learned trial court dismissed the objection petition and again directed the execution of the decree, hence the instant petition.

4.Arguments were heard and record was perused.

5.A plain reading of the objection petition demonstrates that the petitioner did not impugn the decree on any legal ground rather reliance was placed on alleged technical impediments. Essentially, the petitioner sought to nullify the decree through objections in execution, a course of action clearly barred by section 47 of the Civil Procedure Code,

6.It is a settled proposition that the executing court is not vested with jurisdiction to re- examine or re-open the merits of the decree. Its mandate is confined to effectuating the decree as it stands. It cannot substitute its judgment for that of the court that rendered the decree nor can it entertain matters that ought to have been raised earlier. The impugned order thus, suffers from no illegality warranting interference. The Hon’ble Apex Court in the case of "Irshadi Masih and others Vs. Emmanuel Sikandar Hayat/ (D.B) HON’BLE MR. JUSTICE SABIT ULLAH KHAN

HON’BLE MR. JUSTICE QAZI JAWAD EHSANULLAH

Masih and others"1 authoritatively held that an executing Court cannot travel beyond the decree nor dilute its bindings effect once it was attained finality.

Similarly in the case of “Defence Housing Authority through Secretary Vs. District and Sessions Judge, Lahore and 07 others”2, it was held that ancillary issues arising out of decree fall squarely within the jurisdiction of executing court, but the decree itself cannot be re-opened or altered.

7.The chronology reveals that although

execution petition was filed in 2022 and the petitioner- department continuously represented until 03.07.2024 that the internal process was underway and funds have been allocated. Only after protracted delay, did the petitioner raised technical and jurisdictional objections which had not been raised before the trial court in the primary hearing. This conduct suggests that the objections were a dilatory tactic rather than genuine gradiences. The report of local commission which had already been filed and corroborated in court, attained finality as it was not challenge at the proper stage and the petitioner cannot now, seek to re-open those settled issues.

2014 SCMR 1481

2023 MLD 339, Lahore

Sikandar Hayat/ (D.B) HON’BLE MR. JUSTICE SABIT ULLAH KHAN

HON’BLE MR. JUSTICE QAZI JAWAD EHSANULLAH

8.The presence of utility installations and the peculiarities of topography of the site are administrative matters ordinarily resolvable through coordination with the utility companies. A public works department entrusted with road construction cannot evade execution by invoking such grounds.

Should third party utility bodies obstruct execution, recourse lies in pursuing remedies against them, not in resisting compliance with lawful decree. The petitioner’s pleas that the decree itself is inexecutable reflects a misconception and manifests a deplorable dereliction of duty by public department, which this Court strongly deprecates.

9.In legal terms, the crux of the case is that the petitioner’s objection petition in execution proceedings was misconceived, as it sought to defeat and nullify a valid decree on technical and factual grounds which, under section 47 of the Civil Procedure Code, 1908, are impermissible. The executing court is confined to enforcing the decree as it stands and lacks jurisdiction to re-open, vary or re- examine its merits. The alleged impediments such as utility installations and site topography were administrative matters to be resolved by departmental coordination and could not render decree inexecutable.

Sikandar Hayat/ (D.B) HON’BLE MR. JUSTICE SABIT ULLAH KHAN

HON’BLE MR. JUSTICE QAZI JAWAD EHSANULLAH

10.Section 47 of the Code of Civil

Procedure, 1908, embodies the salutary principle that all questions arising between the parties to the suit, or their representatives, which pertain to the execution, discharge, or satisfaction of decree, shall be determined exclusively by the executing Court and not by means of separate suit. The object of this provision is to obviate multiplicity of proceedings and to ensure finality of litigation within the same procedural framework. The jurisdiction of executing Court under this Section, however, is circumscribed: it cannot ordinarily traverse behind decree or re-open matters already adjudicated upon, save in exceptional circumstances where the decree is a patent nullity or has been passed by Court inherently lacking jurisdiction. The superior Courts have consistently settled the proposition that objections under Section 47 C.P.C are maintainable only where the decree is void ab initio, and not where it merely suffers from irregularity or erroneous findings and also reaffirmed that the executing Court must give effect to the decree as it stand, and may decline enforcement only where the decree is inexecutable on account of manifest illegality or jurisdictional defect. Thus Section 47 C.P.C serves as both a bar to collateral challenges Sikandar Hayat/ (D.B) HON’BLE MR. JUSTICE SABIT ULLAH KHAN

HON’BLE MR. JUSTICE QAZI JAWAD EHSANULLAH

through independent suits and a mechanism for safeguarding against enforcement of decrees that are legally nullity.

11.It is well-entrenched principle of law, repeatedly affirmed by superior Courts, that a party who, despite of availability of a statutory appellate remedy, abstains from challenging the original decree at the proper stage, cannot subsequently be permitted to assail the decree at the stage of its execution by invoking Section 47 of Code of Civil Procedure, 1908.

The settled jurisprudence of apex Court underscores that execution proceedings are not a forum for re- agitation of issues which stood conclusively determined in the suit or could have been raised in appeal. The executing Court, being by the terms of decree, lacks jurisdiction to sit in appeal over its correctness or legality; its remit is confined by examining the decree’s executability only in cases where the decree is nullity, having been passed without jurisdiction or in defiance of a statutory prohibition, can an objection under Section 47 of C.P.C be entertained. The apex Court has clarified that failure to avail appellate remedies forecloses the right of judgment debtor to question the merits of the decree in execution proceedings. Thus, the crux of the Sikandar Hayat/ (D.B) HON’BLE MR. JUSTICE SABIT ULLAH KHAN

HON’BLE MR. JUSTICE QAZI JAWAD EHSANULLAH

superior Courts findings is that Section 47 of C.P.C cannot be misused as a substitute for appeal, and doctrine of finality bars collateral attacks upon a decree which, through perhaps erroneous, is not ab initio.

12.For the foregoing reasons, the findings recorded by the executing court in the impugned order are sound, well-reasoned and legally sustainable. No.

jurisdictional or legal infirmity has been demonstrated to justify interference by this Court. Accordingly, the instant writ petition is dismissed as being devoid of merits. No order as to cost.

Announced 25.09.2025 Sd/-

JUDGE

Sd/-

JUDGE

Sikandar Hayat/ (D.B) HON’BLE MR. JUSTICE SABIT ULLAH KHAN

HON’BLE MR. JUSTICE QAZI JAWAD EHSANULLAH