IN THE HIGH COURT OF SINDH AT KARACHI.
Date Order with signature of Judge
For hearing of CMA No.590/2009.
Dated: 11.6.2009
Mr. Khawaja Shamsul Islam for the Decree Holder.
Mr. Muhammad Ali Lari for Judgment Debtor No.4.
-.-.-
Muharram G. Baloch, J.- The matter is fixed for hearing CMA No.590 of 2009 whereby the Judgment Debtor No.4 has prayed that the proceedings in this execution application against him be stayed or set aside. Learned counsel for Judgment Debtor has filed affidavit in rejoinder which is taken on record and copy of the same is supplied to learned counsel for Decree Holder.
Mr. Muhammad Ali Lari, learned counsel for judgment debtor, submits that the application is filed on the grounds that order 37 rule 4 CPC fully authorizes the Court to set aside the decree/stay the execution. According to him since the order/judgment is passed in absence of judgment debtor No.4, therefore, request can be considered on the ground taken by the judgment debtor No.4 that the cheques were issued by judgment debtor No.1 to the decree holder and judgment debtor No.4, who only stood guarantee for the good payment of the cheques and made certain endorsement. He has referred to the document annexed with the counter-affidavit filed by the decree holder as D/1. He further submits that the judgment debtor does not admit to have signed the document D/1 and according to him Article 84 of Qanoon-e-Shahadat is applicable in the circumstances of the case as the signature of judgment debtor No.4 on the document in question is not the same as appeared on the I.D. Card or other documents. In this respect he has placed reliance on PLD 1987 Karachi 86. He has also placed reliance on PLD 1994 Karachi wherein it is held that the technicalities be ignored and the matter be adjudicated on merits. He further submits that annexure D/4 annexed with the counter-affidavit to the application is the affidavit of judgment debtor No.1 but surprisingly no decree has been passed against him and instead the execution has been filed against the present judgment debtor No.4.
As against Mr. Khawaja Shamsul Islam, learned counsel for decree holder, submits that this Court is hearing execution application of a money decree. According to him this Court cannot sit as an appellate Court and cannot go beyond the decree. He further submits that as per the provisions of Order 21 rule 23-A CPC if any judgment debtor wants to get the execution stayed then it is mandatory upon him to first deposit the decretal amount as per provision of order 21 rule 23-A CPC, which is reproduced as under:-
“23-A. Deposit of decretal amount, etc.- An objection by the judgment debtor to the execution of a decree shall not be considered by the Court unless—
(a) in the case of a decree for the payment of money, he either deposits, the decretal amount in Court or furnishes security for its payment; and
(b) in the case of any other decree, he furnishes security for the due performance of the decree”
He submits that in view of the above provisions of order 21 rule 23-A if any judgment debtor wants to get the decree set aside then he has to deposit the decretal amount or furnish security for its payment or in the case of any other decree he furnishes security for due performance of the decree.
Mr. Kh. Shamsul Islam further submits that he has not received any notice of CMA No.5741/2009 by which the judgment debtor No.4 prayed for stay of the execution till disposal of that application, which is filed in main suit i.e. Suit No.1481/2005, therefore, he has not filed the counter-affidavit to that application due to non-issuance of the notice. Learned counsel for the decree holder further submits that order 37 rule 4 CPC is in respect that the judgment debtor has to show sufficient cause and special circumstances for setting aside the decree or staying the execution proceedings, which he has failed to do. He further submits that it is admitted that the judgment debtor No.4 through advocate appeared in the main suit in the initial stage and then neither his counsel nor he put any appearance. Contention of the judgment debtor No.4 that it was negligent on the part of his advocate cannot be considered because it is not the duty of the advocate only but of the party itself and if the party chooses to remain indolent and negligent then he is not entitled for any relief. He further submits that the application is barred by time under article 151 of the Limitation Act which envisages that in case the application is moved against the order or decree passed by the High Court in exercise of its original jurisdiction, the time provided is 20 days for filing of the appeal. He did not file the appeal till today. He further submits that for getting the decree or order set aside the provisions of article 164 of the Limitation Act is applicable and the limitation provided for it is 30 days. He further submits that the judgment debtor No.4 has filed such application in the suit after two years which is apparently barred by time. According to him, the only recourse now available for the judgment debtor is to file an application under section 12(2) CPC and that too only in the main suit i.e. Suit No.1481 of 2005. In support of his arguments he has placed reliance on PLD 1993 Karachi 516, 1993 MLD 238, 1974 SCMR 104. The above law is in respect of the point that the parties to the suit are under obligation not to forget about the case after engaging a counsel but to keep abreast of different stages of the matter and his counsel being negligent in pursuing the case, does not entitle him to any indulgence under order 9 rule 13 CPC. Learned counsel for the decree holder further submits that any party does not discharge of his obligation to conduct the case or defend it by engaging an advocate but it is his duty to ensure that the case is properly and diligently prosecuted or defended. Any negligence on the part of his advocate will be binding on him. In support of his submission he has placed reliance on PLD 1979 SC 479. Learned counsel further placed reliance on the case law reported in PLD 1979 SC AJK 18, PLD 1981 SC 364, 2008 SCMR 287 and 284. Learned counsel lastly referred the law reported in 2006 SCMR 631 in which it is held that only remedy for unfortunate client of such a counsel appears to be to sue him for damages for loss suffered on account of his gross negligence.
In rebuttal learned counsel for judgment debtor No.4 submits that in para 6 of his rejoinder he has stated that he has been made escape goat for none of his fault and his involvement in the entire transaction of alleged receipt of Plot No.20-A, Sheet No.CF-15, Clifton Quarters, Karachi, is fabricated. He further stated in this Para that the signature and the initial on the document are apparently different from the signature appearing on his I.D. Card or Vakalatnama and therefore, the signatures may be referred to handwriting expert.
I have heard the arguments of learned counsel for the parties and with their assistance also perused the law cited by them. It is an admitted position that the judgment debtor No.4 did appear in the suit through an advocate and thereafter the advocate did not appear, thus it was also negligent on his part as well as he also chosen not to appear or pursue the proceedings. Consequently, the suit against him was decreed exparte. The judgment debtor No.4 has also not filed any appeal to the judgment and decree till today but instead he has filed an application for recalling and setting aside the decree under order IX read with section 151 CPC in main suit No.1481/2005.
Since it is well settled law that the executing Court cannot go beyond the decree, the judgment debtor No.4 has in fact wanted that the things which could be done in the suit, in which the original order is passed, that may be done through this application filed in the execution application, which cannot be accepted under the provisions of law as cited by learned counsel for the decree holder. Consequently, this application (CMA No.590/2009) for staying the execution proceedings is devoid of force which is hereby dismissed with no orders as to costs. However, judgment debtor No.4 is at liberty to pursue his matter in the summary suit No.1481 of 2005, if so advised, in which the application bearing CMA No.5741/2009 filed by the judgment debtor No.4 is already pending.