Bakht Jamal and others Vs Khushdil

JUDGMENT SHEET

PESHAWAR HIGH COURT, PESHAWAR

[JUDICIAL DEPARTMENT]

Civil Revision No. 119-P/2026 with CM No. 167-P/2026.

Bakht Jamal and others vs Khushdil

PRESENT

For petitioner (s): Mr. Altaf Ahmad, Advocate For respondents Nemo (motion) Date of hearing: 02.02.2026.

JUDGMENT

MUHAMMAD NAEEM ANWAR, J.- This civil revision has been filed against the judgment dated 10.01.2026 passed by the learned Additional District Judge-I, Lahor, Swabi, whereby the appeal filed by the petitioners against the judgment dated 05.11.2025 passed by the learned executing court (Civil Judge- II, Lahor, Swabi) was dismissed.

2.Brief facts of the case are that the respondent, Khushdil, filed a suit for possession of property, measuring 20 kanals and 08 marlas, the particulars of which were given in the plaint, against the present petitioners. After conclusion of the trial, the suit was decreed vide judgment dated 02.02.2024. For execution of the decree, the decree-holder filed Execution Petition No. 26/10. During the pendency of the execution proceedings, the petitioners filed an objection petition under Section 47 of the Code of Civil Procedure, which was dismissed by the learned Executing Court vide order dated 05.11.2025. The petitioners filed an appeal against the said order, which was also dismissed by the learned Additional District Judge-I, Lahor, Swabi, vide judgment dated 10.01.2026, hence, the instant petition.

3.The learned counsel for the petitioners contended that the respondent/decree-holder has already alienated a portion of the decretal property, specifically measuring 07 kanals and 19 marlas, vide Sale Mutation No. 1057, duly attested on 27.11.2015. This transaction occurred out of the aggregate

decretal area of 20 kanals and 08 marlas. This material fact has been duly acknowledged by the respondent in his formal reply to the objection petition. He vociferated that notwithstanding this admission, the respondent persists in demanding possession of the entire decretal property through their execution petition, despite his ownership interest in the suit khasra number being restricted to only 12 kanals and 09 Marlas. According to the learned counsel, this discrepancy precipitates a disputed question of fact which necessitates the formal recording of evidence. The counsel submits that this crucial procedural aspect was entirely overlooked by the courts below, thereby rendering their impugned findings contrary to both established law and fact, and thus, are liable to be set aside.

4.Arguments have been heard and the record duly perused

5.It is an admitted position that the petitioners were arrayed as parties to Suit No. 90/1 of 2018, instituted by the decree-holder. It is further undisputed that, pendente lite (during the pendency of the suit), the petitioners contended they were the rightful owners of the disputed property. To resolve this issue, Issue No. 4 was framed, and following the conclusion of evidence, the findings were rendered against the defendants/petitioners. It is now an established fact that the petitioners do not hold title to the disputed property. It was never the petitioners' contention that they were the contiguous/adjacent owners of the property and that the transfer of possession of the decreed property would result in the wrongful handover of their owned property to the decree-holder. Consequently, their objection did not fall within the ambit of Rule 97 or Rule 98 of the Code of Civil Procedure, 1908 (CPC), nor could their case be sustained under Rule 99 of the CPC. Resistance to the possession of the decreed property can only be legitimately exercised by a co-

sharer in accordance with Order XXI, Rule 35(2) CPC, or by a contiguous owner. As the objectors satisfy neither of these criteria, thus, they are precluded from resisting possession and lack any legal justification for impeding the execution process. The assertion that the decree-holder has alienated a portion of his ownership interest to another party is immaterial; this constitutes no valid ground to resist or object to the execution of the transfer of actual possession.

6.Insofar as the objection filed under Section 47 of the Code of Civil Procedure (CPC) is concerned, the court holds that this provision pertains exclusively to the satisfaction, discharge, and execution of the decree, and all questions related thereto must be adjudicated by the executing court between the original parties to the suit. Crucially, the objectors bear the burden of proof to demonstrate the justification of their objection, specifically, whether their legal possession of an adjacent property is being adversely affected. This is particularly pertinent given their failure to substantiate their claim of ownership over the property in dispute. No such averment or reference was included in the objection submitted before the executing court that would warrant or justify the formal determination of facts through the recording of evidence. Absent title ownership of the decreed property or as a contiguous owner thereof, the objectors are legally barred from challenging the title or possession of the decree-holder with reference to any alleged "deficient possession" on their part. The matter of the decree-holder's possession of the entire decreed property, or any portion thereof, is an issue inter se (between themselves) amongst the actual owners.

7.The objectors' concerns regarding their own deficient physical possession at the locus in quo (at the actual site) may require determination, but this cannot be achieved either through objections under Section 47 or under Order XXI,

Rules 97 to 99 of the CPC, as no such claim was formally raised in their submissions. If the petitioners/objectors have a legitimate boundary dispute concerning any property they possess, they retain the right to submit an application to the relevant authority for a formal determination and resolution based on survey or demarcation. Should any encroachment be established in lieu of that process, it may be redressed in accordance with the law, in consonance with the Latin maxim "Ubi jus ibi remedium" (where there is a right, there is a remedy). This principle signifies that for every legal wrong or violation of a recognized right, the law provides a mechanism to enforce it or compensate the aggrieved party, thereby ensuring that legal rights are not merely theoretical in application.

8.Moreover, the contention advanced by the objectors, that they are in possession of a lesser portion of the land, and that the decree-holder had previously alienated a part of the property via Mutation No. 1057 (attested on 27.11.2015) is fundamentally misconceived. A perusal of the record reveals that the decree for recovery of possession was issued on 02.02.2024, whereas the mutation relied upon by the objectors predates the decree, pertaining to the year 2015. Despite the fact that this plea was available to them during the original proceedings, the objectors failed to substantiate it during the trial. It is a well-settled proposition of law that a judgment debtor cannot be permitted to raise new pleas of fact in execution proceedings which could have been, and ought to have been, raised during the trial of the suit. In other words, the provisions of Section 47, C.P.C. (Code of Civil Procedure), do not entitle a party to seek a retrial of issues already involved in the suit, particularly when that party had ample opportunity to contest the suit but failed to raise such issues during the trial phase. Section 47, C.P.C., empowers the Executing Court to adjudicate all questions arising between

the parties to the suit which relate strictly to the execution, discharge, or satisfaction of the decree. It deals exclusively with events occurring subsequent to the passing of the decree; it does not, however, relate to causes which arose prior to the issuance of the decree.

9.Since the objectors have failed to substantiate the plea raised in their objection petition during the trial of the suit, and furthermore, since the objectors have already exhausted all available remedies against the main judgment and decree (their appeal against the decree has been dismissed, and their subsequent application under Section 1 2 (2 ), C.P.C., challenging the validity of the decree has also been dismissed), the decree has achieved finality. As held in Mst. Yasmeen v. National Insurance Corporation (2004 CLC 979), once a decree becomes final, the executing court is mandated to execute it as passed and cannot travel beyond its terms to re- determine liability or reconsider the law. In addition, once a decree attains finality, then, statutory right and interest accrue in favour of Decree Holder, which cannot be strangulated on the basis of procedural law, status of which is that of stepping stone and not a stumbling block, as held in the case of Dino Manekji Chinoy and 8 others v. Muhammad Matin (P L D 1983 SC 693). Accordingly, the findings of both the subordinate courts are well-reasoned, legally sound, and require no interference by this Court. In the case of Mst. Naseem Akhter and 4 others (1994 SCMR 22), the apex Court held that a plea not taken by the judgment debtor before the trial court is barred during execution.

10.The crux of the above discussion is that the instant petition being without merit is hereby dismissed in limine with no order as to costs.

Announced.

*M Zafral CS* J U D G E