ORDER SHEET
IN THE HIGH
COURT OF SINDH
AT
EXECUTION No. 69 OF
2004
Date
order
with signature of Judge
1. For
orders on objections to main application.
2. For
orders on CMA No. 900/2006.
3. For
hearing of main application.
R&Ps of Suit No.B-16/2006, Suit No.
B-14/2002, J.M.Nos.29 & 30 of 2006 are put up herewith.
Mr. Rashid Anwar, Advocate for Decree Holder.
Dr. Farogh Naseem, Advocate for Judgment Debtor
Mr. Mansoorul Arifin, Advocate Amicus Curie
GULZAR AHMED, J:- By this execution application Decree Holder
has sought execution of decree dated 29.8.2002 passed in Suit No. B-32/2002.
The Judgment Debtors have filed objections to the execution application. The
suit was decreed in terms of the compromise arrived at between the parties
through agreement dated 09.8.2002 wherein the Judgment Debtors have agreed to
pay to the Decree Holder an amount of Rs.2,550,000,000/-. Such payment was to
be made within 7 years starting from 1.1.2003 by down payment of
Rs.500,000,000/-, Rs.100,000,000/- vide cheque No. 3461101 dated 30.9.2002,
Rs.400 million by 12.10.2002 through sale of shares pledged with the bank and
balance Rs.2,050,000,000/- in equal quarterly installments including mark up @
11% per annum as per schedule of the agreement starting from 1.1.2003. It is
stated that as against the above decree the Judgment Debtors paid Rs.604,.784 Million
but the remaining amount was not paid consequently this execution application
is filed wherein the Decree Holder has sought execution of the decree for
payment of Rs.2,481,013,802.21 with mark up @ 11% per annum from 17.8.2004 till
realization. As stated above the Judgment Debtors have filed objections to the
execution application.
Mr. Rashid
Anwar learned Counsel for the Decree Holder has contended that the objections
filed by the Judgment Debtors cannot be considered unless the Judgment Debtors
fulfill the condition precedent for considering of objections as provided under
Rule 23-A of Order 21 CPC. In support of his submissions, he has relied upon
the cases of Happy Family Associates Vs. M/s. Pakistan International Trading
Company (PLD 2006 SC 226), Muhammad
Jamil Vs. Haji Muhammad Din (PLD 1995 Lahore 107), Gul Muhammad Meer Bahar Vs.
NLC (2001 YLR 837), Muhammad Yasin Khan Vs. Aftab Ahmed Khan (PLD 1976 Kar.
1133), Hanifa Begum Vs. Muhammad Qamar Zaman (1992 CLC 1699), Abdul Hameed Vs.
Allied Bank of Pakistan (2003 CLD 288) and M/S. Naushera Bricks & Tiles
(Pvt.) Ltd. Vs. Regional Development Finance Corporation (2002 CLC 904).
Dr. Farogh Naseem learned
Counsel for the Judgment Debtors on the other hand has contended that the
objections filed by the Judgment Debtors may be treated as an application u/o
21 Rule 2(3) read with section 151 CPC for recording satisfaction of the decree
by way of an adjustment in writing. He has further contended that while
treating the objections as an application for the satisfaction of the decree by
way of an adjustment, the Rule 23-A will not have application and there is no
requirement for the Judgment Debtors to make deposit or to furnish security in
respect of the decretal sum. In support of his submissions he has relied upon
the cases of Ganga Dihal Rai Vs. Ohdh Ram (AIR 1929 Allahabad 79), Abdi Hussain
Vs. Kunj Behari Lal (AIR 1939 Allahabad 531), Chairman District Council Jehlum
Vs. Ali Akbar (1970 SCMR 105), Nazeer
Hussain Shah Vs. The State (PLD 1965 SC 139), Ram Chand Gupta Vs. Wazir Chand
(AIR 1962 Punjab 293), Bholo Ram Vs. Kanhya (AIR 1963 Punjab 133), Darumal Vs.
Todar (AIR 1938 Lahore 602), Murli Dhar Vs. Firm Bashesharlal Motilal (AIR 1938
Lahore 126), Muhammad Tariq Vs. Mst. Fazeelat (PLD 1977 Lahore 728), Ramnath
Sarma Vs. Baidyanath Chatterjee (AIR 1954 Calcuta 620), Mrs. Zia Farhat Vs.
Presiding Officer Special Court (Banking) (1969 MLD 680), The Allahabad Bank
Limited Vs. Chaitram Chaudhry (AIR 1964 Madya Pardesh 226), Usman Hussain Vs.
Habib Bank Limited (PLD 1988 Karachi 620), Malik Gul Hassan & Company Vs.
(Allied Bank of Pakistan (1966 SCMR 237), Jagan Nath Charan Das Vs. Thakardas
Kaliandas, (AIR 1935 Lahore 589), S. Udham Singh Vs. S. Atma Singh (AIR 1941
Lahore 149), Ramanarasu Vs. Matta Vankata Reddy (AIR 1933 Madrass 28),
Lachhumal Morumal Vs. Attamahammad Khan Nabibaksh Khan (AIR 1939 Sindh 243),
VNA Firm Vs. Bank of Chettinad Ltd. (Air 1938 Rangoon 353), Major (Rtd.) Ahmed
Khan Bhatti Vs. Mst. Masood Fatmi (PLD 1981 Karachi 398), Al-Huda Hotels &
Tourism Company Vs. Paktel Limited (2002 CLD 218), Sandoz Ltd. Vs. Federation
of Pakistan (1995 SCMR 1431), Province of West Pakistan Vs. Gammon’s Pakistan
Ltd. (PLD 1976 Kar. 458), Nagendranath Majumdar Vs. Kshitish Chandra Ghose (PLD
1958 Dacca 179), Banque Indosuez Vs. Banking Tribunal for Sindh &
Baluchistan (1994 CLC 2272), Todarmal Tejmal Vs. Chironjilal Gopilal (AIR 1956
MB 25), Moti Shah Vs. Ghandharp Singh (AIR 1926 Allahabad 715), Muhammad Sama
Mondal Vs. Muhammad Ahmed Shaikh (PLD 1963 Dacca 816), Rajkishor Mohanty Vs.
Banebehari Patnik (AIR 1951 Orissa 291), M/s. Seghal Brothers Vs. Bharat Bank
Ltd. (AIR 1961 Punjab 439), Bharat Bank Ltd. Vs. M/s. Seghal Brothers (AIR 1960
Punjab 459), Oudh Commercial Bank Ltd. Vs. Thakurain Bind Basni Kuer (AIR
1939 Privy Council 80), Ram Das Vs. Ali
Bahadur (AIR 1933 Peshawar 53), Haji Hafiz Abdul Shakoor Khan Vs. Administrator
Municipal Committee Multan (PLD 1951 Lahore 32), Sultan Ahmed Sharif Vs.
Mathura Mohan Chowdhury (PLD 1958 Dacca 36), Islamic Republic of Pakistan Vs.
Muhammad Saeed, (PLD 1961 S.C. 192), Chaudhry Muhammad Nawaz Vs. Chaudhry
Rehmat Ali (1994 SCMR 349), Girish Chandra Santra Vs. Purana Chandra Bhattachar
jya (AIR 1944 Calcutta 53) and Dr. Major Abdul Ahad Khan Vs. Muhammad Iqbal
(PLD 1989 Karachi 102).
Mr.
Mansoorul Arfin, a learned senior counsel was appointed as amicus curie to
assist the Court in determining the question as to whether an objection filed to the execution application
can be treated as an application under Order 21 Rule 2(3) CPC without making
compliance of Rule 23-A of Order 21 CPC. Learned amicus curie has contended
that if the objection is considered to be an application u/o 21 Rule 2(3) CPC
the same in terms of Article 174 of the Limitation Act has to be filed within
90 days from the date of payment or adjustment. He has further stated that
apparently the condition provided in sub Rule (3) of Rule 2 of Order 21 CPC has
not been complied with inasmuch as there is no adjustment made in writing to be
recognized by the Court. He has also submitted that the question of considering
the objection to be an application u/o
21 Rule 2(3) CPC will also attract the provision of Rule 23-A of Order 21 CPC
and the Judgment Debtors will be required to fulfill this condition precedent.
He has further submitted that in case the Judgment Debtor does not file an
application under Rule 2(3) of Order 21 CPC in 90 days and if the Decree Holder
does not accept payment or adjustment, the remedy of the Judgment Debtors is to
file suit for recovery of money paid in terms of Rule 29 of Order 21 CPC. He
has also submitted that Rule 23-A will not be applicable if the application
under Rule 2(3) of Order 21 CPC is filed in 90 days and has cited the case of
Muhammad Jamil (supra).
Dr. Farogh
Naseem learned Counsel for the Judgment Debtors in respect of the point of
limitation has relied upon the cases of Abid Hussain Vs. Kunj Behair Lal (AIR
1939 Allahabad 581) and A.T.N.A.T Chokalingam Chettyar Vs. A.K.R.M.M.N.M.N
Narayana Chettyar (AIR 1938 Rangon 328).
Learned
Counsel for the Decree Holder on the other hand has contended that the
adjustment of the decree claimed by the Decree Holder cannot be considered
because it is not certified. He has further contended that Rule 23-A will still
be applicable and has relied upon Oudh Commercial Bank Limited (supra), Anath Nath Birwas Dwarkanath
Chakravati (AIR 1939 Privy Council 86), Chowdhry Abdul Sobhan Sahib Vs. Kante
Ramana (AIR 1945 Madrass 161), Kirishna Govind Patil Vs. Moolchand Keshavechand
Gujar (AIR 1941 Bombay 302) and Choudhry Vs. Aliraja (AIR 1928 Calcutta 527).
As regards the point of limitation, the learned Counsel has relied upon the
case of Dr. Major Abdul Ahad Khan (supra),
Abdul Ghani Vs. Rasif Khan (PLD 1994 AJ&K 8), Muhammad Ishaque Ali Vs.
Heeralal Seraogi (PLD 1964 Dacca 637), Makachhed Molla Vs. Abdul Jabbar Molla
(PLD 1956 Dacca 96), Fatimunissa Vs. Asghar Hussain (AIR 1928 Oudh 195),
Mehbunissa Begum Vs. Mehdunissa Begum (1925 Bombay 309), Shiraldas Mohandas Vs.
Lalchand Vallabdas (AIR 1933 Sindh 305) and B. Mourari Lal Vs. S. Raghbir Saran
(AIR 1934 Allahabad 209). Learned Counsel has further submitted that no
contract for settlement was concluded and there was no adjustment and that the
alleged contract is void being without consideration and has relied upon the
cases of Al-Huda Hotels & Tourism company (supra), M/s. Shalsons Fisheries Limited Karachi Vs. M/s Lohmann
& Company (PLD 1982 Karachi 76), S. Udham Singh Vs. S. Atma Singh (AIR 1941
Lahore 149), Mst. Bhagawani Vs. Lakhim Ram (AIR 1960 Punjab 437) and
Anarunachallam Chettyar & A.P. Bhagchi Vs. Mrs. F. Morgan (AIR 1935
Allahabad 513).
I have considered the submissions of the learned counsel.
Though the learned counsel for the parties have made
extensive submissions on the merits of the execution application and on the objections/application,
but before dilating upon such submissions, it appears that the question, as to
whether the judgment debtors may be asked either to deposit the decretal amount
in court or furnish security for its payment in terms of Rule 23-A of Order 21
CPC, needs to be examined first. The judgment debtors have filed objections
which the learned counsel for judgment debtors submits that it may be treated
as an application under sub-rule (3) of Rule 2 of Order 21 CPC with prayer that
the decree stands satisfied by adjustment in writing. In the cases of Ganga
Dehil Roi and Abid Hussain (supra) cited by the counsel for judgment debtors it
has been held that an application by the judgment debtor praying for an
adjustment to be recorded need not to be a document ‘separate’ from the
objections filed by him on the ground of such adjustment. Apparently, the
observation in these two cases are that the application for adjustment and the
objections in essence are one and the same document. In any case section 47 CPC
also provides that all questions arising between the parties to the suit in
which the decree was passed or their representative and relating to execution,
discharge or satisfaction of decree shall be determined by the court executing
the decree and not by a separate suit. In the case of Happy Family Associates
(supra), the Supreme Court of Pakistan has observed that the provision of Rule
23-A of Order 21 CPC is mandatory and the objection to the execution by judgment
debtor cannot be considered unless the judgment debtor deposits the decretal
amount in Court or furnish a security for its payment. In the case of Gul
Muhammad Mir Bahar (supra) a learned single Judge of this court noted the fact
that the judgment debtor has filed objections to the execution application in
the form of an application under Order VII Rule 11 CPC. It was noted in the
order that though there is nobody in attendance to prosecute this application
but in view of Order 21 Rule 23-A CPC objections are not to be heard unless the
judgment debtor deposits the decretal amount or furnishes surety which ever
ordered by the court. In the case of
Qadir Ahmed Siddiqui (supra) Mr. Justice Zaffar Hussain Mirza as a judge of
this court made the following observations:
“6. On a careful examination of scheme of the
Code of Civil Procedure, I am of the view that there is no warrant for the
contention that section 47 and Order XX1, rule 23-A, C.P.C. are to be read
independent of each other or that section 47 furnishes an independent right to
remedy relating to execution of a decree. Section 47 is included in Part 2 of
C.P.C. the main title of which is ‘execution’. This part deals with the
procedure and powers of the Court in execution of a decree. Section 47 itself
has been captioned with a sub-title: “Questions to be determined by Court
executing decree.” The section itself provides that all questions arising
between parties relating to the execution, discharge or satisfaction of the
decree shall be determined by the Court executing the decree and not by
separate suit. From the bare reading of section and the scheme in which it is
placed in the Code of Civil Procedure it is quite clear that section 47, C.P.C.
postulates the determination of questions relating to execution of a decree by
the Court which is executing the decree. The words are not “the Court competent
to execute the decree”. It is,
therefore, difficult to agree with the learned counsel for judgment-debtor that
this section provides an entirely independent right to remedy as to questions relating
to execution of the decree. The obvious intention was to exclude and bar the
right to file a separate suit as to questions inter alia relating to the
execution of a decree. In this view of the matter it is patently obvious that
the provisions of Order XXI, C.P.C. which also relate to the execution of
decree and provide for detailed procedure in that regard are to be read with
section 47, C.P.C. Rules 22 and 23-A pertain to the procedure for disposal of
execution application. On a proper reading of the provision of the aforesaid
rules it appears that the right to raise objection was substantively extended
to the judgment-debtor under rule 22 of Order XXI, C.P.C. and the scope of the
objections that can be raised in execution is governed by section 47, C.P.C.
The objection as to the non-executability of the decree obviously relates to
the execution of the decree and a Court would clearly be barred from
considering the same under the provisions of rule 23-A unless the judgment-debtor
deposits the decretal amount in the Court or furnishes the security for its
payment. The mere fact that in a case where the Court has not yet issued notice
to the judgment-debtor or where no such notice is required to be given, would
not entitle the judgment debtor to by-pass the provisions of rule 23-A and be
heard without compliance thereof.”
Now the rule appears to be that the provisions of order 21
CPC as it relates to the objections to the execution of a decree are to be read
in conjunction with the provision of section 47 CPC which lays down the scope
of the objections that can be raised in execution. Section 47 as noted above
empowers the executing court to determine questions relating to execution,
discharge and satisfaction of decree. It bars a separate suit where question is
within the scope of this section that a court is barred from considering such
objections unless the judgment debtor makes compliance of Rule 23-A by
depositing the decretal amount in court of furnishes security for its payment. The
plea of the judgment debtors, in substance
is an objection which is within the scope of section 47 CPC as it relates to
the question of execution, discharge and satisfaction of a decree which can only
be considered when the judgment debtors deposit the decretal amount in court or
furnish security for its payment as provided in Rule 23-A of Order 21 CPC.
Having come to such conclusion, all other points raised by the learned counsel
need not be considered at this stage but will be considered after the judgment
debtors have made compliance of Rule 23-A. The judgment debtors are directed to
furnish security in the sum of Rs.2,481,013,802.21 within one month from this
order to the satisfaction of the Nazir of this Court.
I am grateful to the assistance which the learned amicus
curie has extended during the course of hearing of this matter. Adjourned to a
date in office.
Date: J
U D G E