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Civil Appeal No. 33 of 1962, decided on 18th April 1963.

(On appeal from the judgment and order of the High Court of West Pakistan, Peshawar Bench, Peshawar, dated the 15th October 1959, in Civil Revision No.261 of 1959).

Granted to consi der points of law involved‑[Whether suit was barred by provisions of S. 47, Civil Procedure Code (V of 1908) or by principles of res j judicata]‑Constitution of Pakistan (1956), Art. 160.

(Not fully carrying out directions of judgment) Suit for declaration and possession‑Judgment granting both relief Decree ex facie not granting relief of possession‑Not to be read as granting such relief by referring to judgment‑Subsequent suit by plaintiff praying for ejectment of defendant, not barred by S. 47, Civil Procedure Code (V of 1908).

, S. 11, Explanation Suits of different kinds‑Previous suit for redemption and posses sion‑(Both relief s granted by judgment but grant of relief of posses sion omitted from being incorporated in decree)‑Subsequent suit not barred by res judicata‑Explanation S inapplicable‑Relief granted by judgment but omitted from decree cannot be said to have been refus ed‑[Ali Ahmad v. Khan Muhammad A I R 1929 Lah. 833 ref.].

Not agreeing with judgment‑(Suit for redemption and possession Both relief s granted by judgment but grant of relief of possession omitted from being incorporated in decree)‑Subsequent suit by decree‑holder for ejectment of judgment‑debtor not barred Decree‑holder not bound to apply for amendment of decree under S. 152, Civil Procedure Code (V of 1908)‑Both remedies concurrent.

Mushtaq Hussain Khan Advocate Supreme Court instructed by Mazharul Haq Bhatti Attorney for Appellant.

Malik Muhammad Jaffar Khan Advocate Supreme Court ins tructed by Hussain & Co. Attorneys for Respondents.

Date of hearing: 15th March 1963.

‑The facts giving rise to this appeal by special leave are as follows. Ghulam Muhammad appellant's father had mortgaged the property in dispute, with possession, in favour of one Khuda Bakhsh deceased who is now represented by the respondents, on 21‑7‑23. The appellant instituted a suit on 4‑8‑49 against the first four respondents and Mst. Zulekhan widow of the deceased mortgagee (now represented by the 5th and the 6^th respondents) for a declaration that the mortgage created by his father was an illegal transaction and in the alternative that the mortgagees had realised more than double the original sum lent, from the produce of the land and consequently the property was liable to be redeemed without any further payment. The relief of possession was also asked for. The trial Court dismissed the suit and the plaintiff failed in appeal before the District Judge. The decision was reversed on second appeal by the High Court of West Pakistan on 25‑11‑52. On all points except that of ille gality of the mortgage, the judgment of the High Court recorded findings in favour of the plaintiff, but somehow or other, although the relief of declaration was incorporated in the decree that was drawn up, nothing was said about the relief for possession. The decree remained unexecuted and the plaintiff then brought the suit, out of which the present appeal arises, on 3‑7‑58, for posses sion of the same property, on the basis of the previous declaratory decree granted to him. He described the respondents as being in illegal possession of the land. The suit was consequently one for ejectment of the respondents as trespassers. The Court o first instance as well as the Court of first appeal held that the suit was barred under section 47 of the Civil Procedure Code and alternatively by the principle of res judicata embodied in section 11 of the Code. This decision was upheld in revision by a learned Single Judge of the West Pakistan High Court. Leave to appeal was granted to consider the points of law involved.

Mr. Mushtaq Hussain Khan who appeared for the appellant, has forcefully contended before us that section 47, C. P. C. was not attracted to the case as the decree drawn up in the High Court had failed to include the relief of possession. The decree, there fore, as it stood, was merely one for a declaration and was not executable as such. Section 47 of the Civil Procedure Code pro vides that all questions arising between the parties to the suit in which the decree was passed or their representatives and relating to the execution, discharge or satisfaction of the decree, shall be determined by the Court executing the decree and not by a separate suit. No such question, it is argued, arises in the present case and therefore the second suit was not barred on the language of section 47.

From the respondents' side it was sought to be established that the decree of the High Court had in fact granted the relief of possession. For this purpose, it was suggested, the decree should be read with and construed in the light of the judgment that preceded it. We are unable to accede to this contention as correct. The words of the decree contain no reference to the relief of possession. In the heading of the decree, no doubt, the statement of the claim mentions that the relief of possession had also been asked for in addition to the declaration that the land stood redeemed without any further payment. In the body of the decree sheet, however, the operative words read as under:‑

it is ordered that the appeal be accepted, that the decree of the District Judge, Attock at Campbellpur, dated the 30th August 1950, arming that of the trial Court dated the 20th May 1950, be set aside and that in lieu thereof the plain tiff's suit for a declaration, as described overleaf, be and it is hereby decreed with the exception of the prayer about the ille gality of the mortgage . . . . . ."

The official who drafted this decree apparently confined himself to the twin declarations asked for in the suit, namely, (1) that the mortgage was illegal and (2) in the alternative, that even if the mortgage was legal, it stood redeemed without further payment. The decree therefore did not ex facie grant the relief of possession. The position adopted on behalf of the appellant by learned counsel therefore appears to us to be sound and section 47 of the Civil Procedure Code is not at all applicable to the facts of this case.

The second question that arises for consideration is whether the subsequent suit was barred by the principle of res judicata. The short answer to the contention raised by the respondents in this behalf is that the subsequent suit was one for ejectment of a trespasser and the matter involved in it was therefore different and distinct from the subject‑matter of the previous suit which, was for redemption of the mortgage and possession. A suit of the one kind cannot be held up as a bar, by invoking the principle of res judicata, to a subsequent suit of the other kind. Reference in this connection may be made inter alia to Ali Ahmad v. Khan Muhammad (A I R 1929 Lah. 833). It was pointed out by a Division Bench of the Lahore High Court in that case that the matter involved in a suit for ejectment is essentially different from that involved in a suit for redemption.

On behalf of the respondents, reliance was placed on Explanation 5 to section 11 of the C. P. C., and it was urged that as the relief of possession, though asked for in the previous suit, had not been granted by the decree formally drawn up, it must be deemed to have been refused and the same relief therefore could not be asked for in the subsequent suit. The Explanation, how ever, is not at all applicable where the nature of the suit is different, as in the present case.

It is also doubtful whether Explanation 5 appended to section 11, C. P. C. would have been applicable in the circum stances of this case, as there was adjudication in the previous suit in favour of the appellant as regards the relief of possession, but it was merely omitted from the decree. The deeming provi sion of this Explanation would appear to be inapt in such circumstances.

It is suggested that the sole remedy open to the appellant was by way of amendment of the previous decree under section 152 of the Civil Procedure Code. It is also pointed out that the High Court could have suo moto amended the decree so as to make it conform to the judgment. This is true, but it does not follow that the appellant, if he failed to resort to that remedy, had no other remedy left at all. He was not bound to apply under section 152, C. P. C. for the correction of the decree. He could treat it as a declaratory decree alone and then base a suit for ejectment on it against the respondents, who after the date of that decree occupied the position of trespassers. The two remedies were concurrently open to him and we have not been shown any provision of law or referred to any principle, which could stand in the way of a suit for ejectment being brought in these circumstances.

It appears therefore that the view on which the appellant was non‑suited in the Courts below is erroneous. The appeal is allow ed and the suit for possession decreed with costs throughout.

A. H. Appeal allowed.

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