Zameer Ul Hassan vs Executing Court etc.

Stereo. H C J D A-38.

JUDGMENT SHEET

IN THE LAHORE HIGH COURT, MULTAN BENCH,

MULTAN

JUDICIAL DEPARTMENT

W.P No.6916 of 2024

Zameer-ul-Hassan Versus Executing Court & another

JUDGMENT

Date of hearing: 01.10.2026 Petitioner by: M/s Anees Mehdi and Zafar Abbas, Advocates. Respondent No.2 by: Mr. Fiaz Hussain Korai, Advocate.

MUHAMMAD SAJID MEHMOOD SETHI, J.- Through the instant petition, the petitioner has called in question the orders dated 04.05.2024, 18.05.2024 and 24.05.2024 passed by the learned Executing Court, whereby proceedings for delivery of possession of a 02-Marla house situated at Mohallah Mastoi, Fazilpur, Tehsil and District Rajanpur, pursuant to decree dated 09.06.2023 passed by the learned Family Court, were initiated and thereafter reinforced through issuance/re-issuance of Robkar/warrant of possession. The petitioner seeks setting aside of the aforesaid orders and protection against dispossession from the property in question.

2.Briefly, respondent No.2/decree-holder was granted a decree by the learned Family Court whereby she was held entitled to recover a 02-Marla house situated at Mohallah Mastoi, Fazilpur, Tehsil and District Rajanpur, or, in the event of non-transfer thereof, its alternate value according to the market value prevailing at the time of payment. The petitioner does not dispute that such relief was granted. His objection at the execution stage is that the particular house is situated in ancestral/joint property wherein his siblings/co-sharers allegedly possess independent rights. It has specifically been asserted that his sister, Bilqees Fatima, is residing therein and has a share in the

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property. The petitioner further claims that, pursuant to the order dated 15.04.2024, he purchased another 02-Marla house within the municipal limits and produced its sale deed before the learned Executing Court, along with possession/key, although the decree-holder declined to accept the substituted property. On 04.05.2024, the learned Executing Court issued Robkar for delivery of possession of the property referred to in the decree. On 18.05.2024, Robkar was re-issued and police assistance, including that of a lady constable, was authorized, with direction to the concerned SHO to assist in execution and register a case in the event of resistance. Meanwhile, an earlier writ petition filed by the petitioner was disposed of by this Court on 22.05.2024 with a direction to approach the learned Executing Court, which was required to consider and decide his application on its own merits, expeditiously and in accordance with law. The petitioner accordingly moved the learned Executing Court, but his application was dismissed on 24.05.2024 principally on the ground that the decree had not been stayed and, therefore, the warrant for delivery of possession was lawful. The challenge to the order dated 04.05.2024 before the learned Additional District Judge, Rajanpur was dismissed on 07.05.2024 as not maintainable, without examination of the merits of the objections.

3.Learned counsel for the petitioner contends that the learned Executing Court proceeded to enforce the decree against a particular property without first addressing the objection that the property is ancestral/joint and that persons other than the judgment-debtor claim independent rights therein. He further submits that the decree itself contains an alternative mode of satisfaction by payment of the market value of the property and, therefore, if physical delivery is legally incapable of being effected, the Executing Court was required to examine that alternative.

4.Learned counsel for the respondent No.2 / decree-holder, on the other hand, maintains that the decree is final and executable; that the petitioner remained in possession of the property which is the subject matter of the decree; and that execution cannot be frustrated by raising

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objections which do not alter the substantive rights conclusively determined by the Family Court.

5.Arguments heard. Record perused.

6.The controversy needs to be examined within the settled limits of execution jurisdiction. An executing Court is bound to give effect to the decree as it stands and cannot sit in appeal over it, modify its substantive terms or substitute a different relief for that granted by the adjudicating Court. This is a long-settled rule: an executing Court cannot go behind the decree, nor rescind, modify or add to the decree it is called upon to execute, and a judgment-debtor who did not challenge the decree cannot, by objections in execution, seek what amounts to its review. Reference can be made to Mushtaque Ahmed v. Shahzad Khan (PLD 2024 Supreme Court 960), Director Labour Welfare v. Muhammad Younas and others (2024 YLR 2505). The rule has particular force for decrees of the Family Court, which are passed under beneficial legislation: where a dispute arises as to the scope of such a decree it is to be read so as to advance rather than dilute the relief granted to the female decree-holder, and the executing Court's duty is to carry the decree into effect, not to add to it or alter it. Reference can be made to Irshad Masih and others v. Emmanuel Masih and others (2014 SCMR 1481) and Mst. Zaib un Nisa and others v. Additional District Judge, Taxila and others (2025 CLC 1048). Equally, however, execution is a judicial process and cannot be reduced to a mechanical act of enforcing a decree irrespective of the legal circumstances affecting its implementation. The executing Court must ensure that the process adopted remains within the scope of the decree and is directed against the property and persons lawfully amenable to execution. The same line of authority recognises that examining whether a decree, or a part of it, is capable of execution is not an exercise in going behind the decree; where part of a decree proves in-executable, the executing Court may decline execution to that extent alone and must proceed with the remainder. Reference can

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be made to Tauqeer Ahmed Qureshi v. Additional District Judge, Lahore (PLD 2009 Supreme Court 760.

7.In the present case, there is no occasion for this Court to interfere with the decree dated 09.06.2023. The decree-holder's entitlement to the 02-Marla house, together with the alternative relief expressly incorporated therein, has attained finality. The petitioner's purchase of another 02-Marla house does not, by itself, entitle him to substitute that property for the property decreed, nor can the decree- holder ordinarily be compelled to accept a different property merely because it is of the same area. The alternate relief in a decree is meant for the contingency in which the principal relief cannot be obtained, so that the decree-holder may be adequately compensated; it is not a device by which the judgment-debtor may choose the mode of satisfying the decree, and a decree-holder cannot be compelled to accept a substitute of the judgment-debtor's own choosing. The decree in the present case is itself so framed, as its alternate value, to be assessed at the market value prevailing at the time of payment, arises only in the event of non-transfer of the decreed house. The question before this Court is, therefore, not whether the decree should be varied, but whether the coercive mode adopted for its execution was legally permissible in the circumstances brought before the Executing Court.

8.The petitioner's objection is that the property identified in the decree forms part of ancestral/joint property and that persons other than the judgment-debtor possess independent rights therein. This objection cannot be answered merely by observing that the decree has not been stayed. The absence of a stay means that the decree remains operative; it does not dispense with the obligation of the Executing Court to execute it in accordance with law. A decree for possession cannot, through the execution process, be enforced in a manner which determines or extinguishes an independent right of a person who is not bound by the decree without following the procedure prescribed for adjudication of such resistance or obstruction. This caution accords with the settled law of joint property. In un-partitioned property every

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co-sharer is deemed to be in possession of every part of it according to his share, and a co-sharer in possession cannot be dispossessed until the property is partitioned by the competent forum. Reference can be made to Ali Asghar v. Mst. Farkhanda Rani and another (2026 CLC 1159). Order XXI Rule 35(1) CPC itself speaks of the removal of a person “bound by the decree”. These principles presuppose, however, that the claimed co-sharership is established, a matter dealt with in paragraph 13 below.

9.A preliminary question is whether the procedure of the Code of Civil Procedure can be invoked in the execution of a decree of the Family Court, section 17 of the West Pakistan Family Courts Act, 1964 having excluded the application of the Code (except sections 10 and 11) to proceedings before the Family Court. That exclusion is confined to proceedings in respect of the matters in Part I of the Schedule, which the Family Court adjudicates under section 5; execution is not among them. Section 13(4) of the Act provides that the decree shall be executed by the Court passing it or by such other Civil Court as the District Judge may direct, and it has accordingly been held that execution of a Family Court decree is regulated by Order XXI CPC. Reference can be made to Abdul Majeed v. Additional District Judge, Shujabad and 2 others (2019 YLR 2924) and that the Family Court, which cannot sit as a spectator in the execution of its own decree, may follow the procedure of the Code for that purpose. Reference is made to Muhammad Ramzan v. Ali Hamza and others (PLD 2016 Lahore 622), Abdul Rehman v. Mst. Ruqia Begum and others (2018 CLC Note 35) and Muhammad Muzamal Riaz v. Additional District Judge, Shorkot, District Jhang and 6 others (2020 CLC 970). Provisions of the Code have been applied to the execution of Family Court decrees even in respect of objection petition filed by the surety as held in Ghulam Shabbir v. Mst. Tanzeela Nusrat and others (2023 CLC 2169).

10.The Code of Civil Procedure, 1908 itself provides the mechanism for such a situation. While Section 47 governs questions arising between the parties to the suit and relating to execution,

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discharge or satisfaction of the decree, Order XXI Rules 97 to 103 specifically deal with resistance or obstruction to delivery of possession and provide for adjudication of the rights, including right, title or interest, of persons whose claim is relevant to such resistance or obstruction. Thus, where a person other than the judgment-debtor asserts an independent right in the property and resists delivery, the executing Court is not powerless; rather, it is required to adopt the procedure provided by law and determine the objection within the jurisdiction conferred upon it. This ensures that execution remains effective without converting coercive process into a means of adjudicating rights behind the back of persons affected by it.

11.The record demonstrates that the objection regarding the alleged co-sharers was specifically brought before the learned Executing Court and that resistance by the petitioner's siblings was subsequently reported. In such circumstances, the matter required judicial determination before forcible possession was pursued with police assistance. The order dated 18.05.2024, by which police assistance was authorized and resistance was sought to be met through criminal proceedings, could properly operate only as an ancillary measure for enforcement of a decree otherwise lawfully executable. It could not itself resolve the underlying dispute as to whether persons other than the judgment-debtor had an independent legal interest in the property.

12.The order dated 24.05.2024 suffers from a more fundamental defect. This Court, on 22.05.2024, had specifically directed the learned Executing Court to consider the petitioner's application on its own merits and in accordance with law. The subsequent order, however, substantially proceeded on the premise that since the decree had not been stayed, its execution through warrant of possession was lawful. That reasoning answers only whether the decree was operative; it does not answer whether the particular mode of execution adopted was legally permissible in the face of the specific objection regarding the nature of the property and the asserted rights of persons other than the judgment-debtor. A judicial order passed pursuant to a specific

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remand/direction must demonstrate consideration of the questions for which the matter was remitted. The order dated 24.05.2024 does not adequately do so.

13.At the same time, the objection raised by the petitioner cannot itself be treated as conclusively established. This Court is not determining that the property is, in fact, joint or ancestral, nor that the petitioner's siblings possess any particular share therein. Those are factual and legal questions to be determined by the learned Executing Court in accordance with the applicable execution procedure and the material lawfully placed before it. Nor can every assertion of co- sharership be permitted to indefinitely frustrate a final decree. Finality of judgments is a matter of public policy, and a judgment-debtor who has exhausted his remedies cannot be allowed to stall execution on flimsy pretexts or by relying on disputes in which he has no independent right of his own. Delay of this kind in satisfying a decree in a family matter has also been deprecated. Nor can the petitioner, under the guise of such an objection, reopen the decree or raise a plea that was open to him in the suit. The decree-holder remains entitled to the fruits of the decree, and the execution proceedings must continue to their lawful conclusion. The appropriate course, therefore, is one of limited interference. The execution proceedings themselves are not liable to be quashed. What cannot be sustained is the immediate coercive delivery of possession without first determining the objection which goes to the executability and lawful manner of enforcing the decree against the property in question. The warrants/Robkar issued pursuant to the impugned orders are consequently liable to be recalled, while the execution petition shall remain pending before the learned Executing Court.

14.As the learned Executing Court will have to determine the permissible mode of delivery, the following principles governing delivery of possession of joint property in execution are noticed. Order XXI Rule 35 CPC provides for delivery of actual possession, if necessary by removing a person bound by the decree, and, where the

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decree is for joint possession, for symbolic delivery under Rule 35(2). Symbolic possession has been upheld where the effect of the decree was to leave the parties as joint owners of the property. In the case of Manzoor Ahmad and another v. Muhammad Sain and others (2010 CLC 789), it has been held that actual exclusive possession cannot be delivered out of un-partitioned joint property to one co-sharer unless the decree grants separate possession of a demarcated share or a prior partition exists, symbolic delivery being the course otherwise. Reference can be made to the case of Ali Asghar, supra. These pronouncements arose in different settings, the one being a decree restoring joint ownership and the other an appeal under the Khyber Pakhtunkhwa Enforcement of Women's Property Rights Act, 2019 against orders of the Ombudsperson, and they are noticed not to decide the present dispute but to guide the Executing Court should it find that the decreed house forms part of a joint, un-partitioned holding.

15.Upon remand, the learned Executing Court shall determine, after affording reasonable opportunity to the decree-holder, the judgment- debtor and, where necessary, the persons resisting or claiming an independent interest in the property, whether the property identified in the decree is capable of lawful delivery in execution against the judgment-debtor. Where resistance or obstruction by a person claiming an independent right is involved, the learned Executing Court shall proceed in accordance with the applicable provisions of Order XXI CPC and determine the objection within the jurisdiction conferred by law. For that purpose the Executing Court may frame issues and record such evidence as the disputed facts require and, where the identity, extent, boundaries or occupation of the property are in dispute, may appoint a Local Commission to inspect the spot and report, the parties being at liberty to object to the report and to cross-examine the Commissioner, so that the controversy is resolved without a protracted trial, by taking guidance from 2023 Ghulam Shabbir, sura and Abdul Rashid v. Muhammad Nazir Abbasi and 24 others (PLD 2006 Peshawar 37), where, on the parties' agreement, a Local Commission

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was directed to be appointed in execution proceedings in place of a full trial). If, upon such determination, the learned Executing Court finds that the decreed property can lawfully be delivered to the decree-holder without affecting rights not bound by the decree, execution shall proceed accordingly. If the property is found to be joint and un- partitioned so that actual exclusive possession cannot lawfully be delivered, the learned Executing Court shall, after hearing the decree- holder, consider whether and to what extent the decree can be satisfied by symbolic delivery in terms of Order XXI Rule 35(2) CPC. If, on the other hand, physical delivery of the particular property is found legally impermissible or incapable of being effected in the manner contemplated by the decree, and symbolic delivery is found inadequate or unavailable, the learned Executing Court shall consider and give effect to the alternative relief expressly granted by the Family Court, namely determination and payment of the market value prevailing at the time of payment, as the decree itself provides, the judgment-debtor not being entitled to defeat that term by tendering a stale or nominal figure, in accordance with the terms of the decree and law.

16.The petitioner's alleged purchase of another 02-Marla property shall not, merely by virtue of his unilateral purchase, be treated as substituted satisfaction of the decree. The decree-holder's refusal to accept such property is also material. Were it otherwise, the judgment- debtor would be left to choose the manner in which the decree is satisfied, which the law does not permit, and objections of this kind, if pressed as a means of postponing satisfaction, are liable to be deprecated. Nevertheless, the learned Executing Court may examine whether the transaction has any legal consequence in the context of satisfaction of the decree, but only within the parameters of the decree and the law governing execution. The foregoing approach preserves both competing juridical interests. It protects the finality and enforceability of the Family Court decree while ensuring that the coercive machinery of the Court is not employed beyond the persons and property legally amenable to that decree. This Court, in exercise of

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constitutional jurisdiction, does not itself assume the role of the executing Court or undertake a first-instance determination of disputed questions of title and co-sharership. Its intervention is confined to correcting the failure of the learned Executing Court to address the material objection in accordance with the earlier direction of this Court and the governing law of execution.

17.Consequently, this petition is partly allowed in the following terms:

(i)The orders dated 04.05.2024, 18.05.2024 and 24.05.2024, to the extent that they authorize, re-issue or sustain Robkar/warrants for forcible delivery of possession of the disputed property without determination of the material objection raised by the petitioner, are set aside.

(ii)The warrants/Robkar issued pursuant to the aforesaid orders are recalled and shall not be acted upon.

(iii)The execution proceedings shall remain pending and are remitted to the learned Executing Court for fresh determination in accordance with law.

(iv)The learned Executing Court shall afford reasonable opportunity of hearing to the decree-holder, the judgment-debtor and, where required by law, the persons resisting execution or claiming an independent right, title or interest in the property.

(v)The learned Executing Court shall determine, in accordance with the applicable provisions of Order XXI CPC, whether the property identified in the decree is capable of lawful delivery in execution and whether any resistance or obstruction is supported by an independent legal right. For this purpose it may frame issues, record evidence and, if it considers necessary, appoint a Local Commission as observed in paragraph 15 above.

(vi)If physical delivery of the particular property is legally permissible, execution shall proceed in accordance with the decree and without unlawfully affecting any person not bound by it.

(vii)If the property is found to be joint and un-partitioned such that actual exclusive possession cannot lawfully be delivered without affecting persons not bound by the decree, the learned Executing Court shall, after hearing the decree-holder, consider whether and to what extent the decree can be satisfied by delivery of symbolic possession in terms of Order XXI Rule 35(2) CPC.

(viii)If physical delivery is found legally impermissible or incapable of lawful execution, and symbolic delivery under clause (vii) is found

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inadequate or unavailable, the learned Executing Court shall examine and give effect to the alternative relief contained in the decree, including determination of the market value prevailing at the time of payment in accordance with its terms and law.

(ix)The alleged purchase by the petitioner of another 02-Marla property shall not be treated as substituted satisfaction merely on his unilateral assertion; its legal effect, if any, shall be determined strictly in accordance with the decree and law.

18.The learned Executing Court shall pass a detailed, speaking and reasoned order addressing the material objections and clearly determining the lawful mode of execution. Nothing contained herein shall be construed as a finding that the disputed property is, in fact, joint/ancestral or that the alleged co-sharers possess any particular right therein. Likewise, nothing herein shall be construed as diluting or varying the decree-holder's substantive entitlement under the decree dated 09.06.2023. The learned Executing Court shall endeavour to decide the matter expeditiously, preferably within three months from receipt of a certified copy of this judgment, subject to cooperation of the parties. The parties shall cooperate in the proceedings and no unnecessary adjournment shall be granted, it being open to the learned Executing Court to proceed on the material available should any party seek to protract the matter. It is clarified that the decree dated 09.06.2023 passed by the learned Family Court is neither varied nor annulled by this judgment. The decree-holder's substantive rights thereunder remain intact. The present judgment merely regulates the lawful mode and manner of execution so that the decree is enforced within its terms and in accordance with the procedure prescribed by law. There shall be no order as to costs.

(Muhammad Sajid Mehmood Sethi)

APPROVED FOR REPORTING

Judge *Sultan*