Before Cornelius, J.
Mst. FATIMA BIBI – Judgment-Debtor – Appellant
MUHAMMAD – Decree holder – Respondent
Execution First Appeal No. 237 of 1946, decided on 6th October 1947, from the order of Subordinate Judge, 1st Class, Sheikhupura, dated 13th July, 1946.
Civil Procedure Code (V of 1908), O. XXIII, r. 3 – Suit for declaration – Compromise in appeal resulting in decree for possession covering properties the subject matter of declaration – Decree, held, executable in respect of possessory relief.
M sued K and F for a declaration that a gift by K in favour of her daughter F would not affect M’s reversionary right, and got a decree. F appealed from the decree. K died during the pendency of appeal and M and F entered into a compromise by which M agreed to give F a certain share in the land in suit. The Appellate Court made a decree accordingly. On an application for execution by M against F seeking possession of land F objected on the plea that a decree for possession in a suit brought for a mere declaration was contrary to law and that M could not take possession under the decree through execution proceedings.
Held, that the operative words in O. XXIII, r. 3 are “pass a decree in accordance therewith so far as it relates to the suit”, and the decree is equally effective in every part thereof, which can be held to relate to the suit, i.e. to be directly connected with the subject matter of the litigation. In a suit for a declaration concerning certain land, the right of possession accruing in relation to those lands during the pendency of the litigation, by reason of an incident over which the parties had no control, cannot be held to be otherwise than related to the subject matter, namely the land, and therefore the decree for possession is valid and executable as a decree in respect of every part thereof. [p. 77].
Lands outside the suit are not sought to be touched but only an additional right in respect of the same lands has been awarded, such right having accrued during the pendency of the litigation on account of the death of the holder. [p. 77].
The fact that no court fee has been paid in respect of the possessory relief has no bearing on the validity of the decree. [p. 78].
24 C W N 328; 66 I C 273 followed.
46 I A 240; 31 P R 1919; 4 Lah. 263 distinguished.
Ghulam Haidar Shah, for Appellant.
Nemo, for Respondent.