P L D 2005 Lahore 331 (PLP)

‑‑‑‑S. 47‑‑‑Execution of decree‑‑‑Cost of damages not included in decree‑‑‑Executing Court inserting costs of damages‑‑‑Executing Court; at the time of execution of decree, included cost of damages also in the decree on the ground that the suit was decreed as it was prayed for‑‑ Objection raised by the judgment‑debtor was that the decree did not include cost of damages‑‑‑Objection was dismissed by Executing Court as well as by Appellate Court‑‑‑Validity‑‑‑Decree as it stood was to be executed by Executing Court and nothing could be added nor imported into it on the basis of any assumption that the suit was decreed as prayed for‑‑‑Sanctity of decree passed in a suit remained intact till such time it was corrected altered or modified by the Court in accordance with law‑ ‑Executing Court was bound to execute the decree as it was and nothing beyond that‑‑‑There was no decree about the claim for damages and the Executing Court was obliged to execute the decree by deducting only the amount of earnest money/advance money and the balance sale consideration had to be paid by the decree holder‑‑‑Orders passed by both the Courts below were in excess of their jurisdiction and were illegal, thus the same were set aside and the Executing Court was directed to proceed with the matter in accordance with law‑‑‑Revision was allowed accordingly. Ghulam Muhammad v. Sultan Mahmud and others PLD 1963 SC 265 ref. Ch. Inayat Ullah for Petitioner. Rao Jalal‑ud‑Din for Respondent. Date of hearing: 16th February, 2005. A suit for specific performance of agreement dated 25‑9‑1993 instituted by Zakir Hussain respondent was decreed by the trial Court on 26‑9‑1998. The said judgment and decree was affirmed on dismissal of R.F.A.No.511 of 1998 on 3‑4‑2000 when the appeal of the defendant (now petitioner) was dismissed. Execution of the said decree then was taken in hand by the Executing Court where an objection petition was filed by the petitioner which was dismissed on 2‑8‑2002 and his appeal was also dismissed by the learned Appellate Court on 7‑2‑2003.

2. It is contended by the learned counsel that the decree passed by the trial Court, which was upheld by this Court has been misconstrued and misinterpreted by the Courts below as to the balance sale consideration. It is contended that the decree as prepared and drawn was to be executed by the Court and the Court could not go beyond the same. The learned counsel for the respondent on the other hand contends that the suit was decreed by the trial Court as prayed for and the decree should be construed accordingly. According to him the decree holder was entitled to deduct another sum of Rs.1,50,000, which had been claimed by him as damages and was awarded by the trial Court. Reference in this context has been made by him to findings of the trial Court qua issue No.6.

3. Admittedly the total consideration for the suit land as per agreement was Rs.4,80,000 out of which Rs.1,50,000 was found to have been paid by the plaintiff/decree holder. The suit had been decided on the basis of the evidence produced by the plaintiff/decree holder only as the right to produce evidence of the petitioner/defendant had been closed. In the suit the plaintiff1decree holder had claimed damages of Rs.1,50,000 as well. There was no specific issue thereabout. Issue No.6 was as to "whether the plaintiff is entitled to get the decree as prayed for". The said issue was decided by the trial Court in favour of the plaintiff. The finding on issue No.7 (Relief) was that "the suit of the plaintiff is decreed in his favour and against the defendant with no order as to costs". The decree that was drawn and issued was "the suit of the plaintiff is decreed in his favour against the defendant with no order as to costs." Neither the relief granted was "as prayed for" nor the decree drawn had reflected it like that. However, the Courts below have proceeded on the premises and assumption as if the claim of damages (ﻪﻧﺎﺟﺮﻫ) of Rs.1,50,000 was also decreed. Such an approach has been adopted with reference to the discussion of the learned trial Court on issue No.6. It, however, does not find support from either the decree drawn in the suit nor the law applicable on the subject. The settled rule in regard to the execution of decree is that:‑(a) it is the decree drawn by the Court which is executable and not the judgment/findings; (b) the executing Court cannot go behind the decree; (c) the executing. Court must take the decree as it stands and cannot make any alteration or modification therein and (d) that in case of reversal, modification or alteration of the decree by the Court of last instance, the decree is to be executed accordingly. Reference in this context may be made to Syed Riaz Ahmad Shah and another v. Dayal Singh College Trust Society and another (1972 SCMR 237), Muhammad Ali v. Ghulam Sarwar and others (1989 SCMR 640), Mst. Naseem Akhtar and 4 others v. Shalimar General Insurance Company Limited and 2 others (1994 SCMR 22), Sardar Ahmad Yar Khan Jogezai and 2 others v. Province of Balochistan through Secretary, C & W Department (2002 SCMR 122), Ghulam Muhammad v. Sultan Mahmud and others (PLD 1963 SC 265), Topanmal Chhotamal v. M/s Kundomal Gangaram and others (AIR 1960 SC 388), and Sunder Das v. Ram Parkash (AIR 1977 SC 1201). Though the decree of the trial Court was upheld by this Court by dismissing R.F.A.No.511 of 1998 on 3‑4‑2000 yet the decree as it stands is to be executed by the executing Court and nothing can be added nor imported into it on the basis of any assumption that the suit was decreed as prayed for.

4. The learned counsel for the respondent/decree holder has endeavoured to support the view taken by the Courts below and contends that the decree should be read in the light of the findings recorded by the trial Court on issue No.6 and that it should be deemed that the suit had been decreed as a whole as prayed for. This, however, is not possible without reading something more into the decree what is not there. Nothing more can be read into the decree, which is to be taken as it stands for the purposes of execution. "As prayed for" does not find mention either in the relief part of the judgment or in the decree that was drawn and issued by the Court. Reference in this context may also be made to Ghulam Muhammad v. Sultan Mahmud and others (PLD 1963 SC 265). That judgment arose in a declaratory suit which had been filed with relief of possession. The suit was dismissed by the trial Court and the First Appellate Court. In second appeal, however, the judgments were reversed by the High Court but in the decree drawn although the relief of declaration was incorporated nothing was mentioned about the relief of possession. A suit for possession was thereafter filed, which was dismissed. The matter reached before the Hon'ble Supreme Court of Pakistan wherein issue of applicability of principle of res judicata had arisen in view of the earlier suit. It was observed that the decree in the earlier suit did not ex facie grant the relief of possession. The subsequent suit for possession was thus decreed by the Court. The sanctity of the) decree passed in a suit is thus manifestly evident which remains intact till such time it is corrected, altered or modified by the Court in accordance with law. So far as the executing Court is concerned the same is bound to execute it as it is and nothing beyond that. Since in the instant case there was no decree about the claim for damages (ﻪﻧﺎﺟﺮﻫ) the executing Court was obliged to execute the decree by deducting only a sum of Rs.1,50,000 paid as earnest/advance money and the balance sale consideration had to be paid by the respondent/decree holder. Thus by setting aside the orders passed by the Courts below, which are clearly in excess of their jurisdiction and are illegal, the executing Court is directed to proceed with the matter in accordance with law. The revision petition is accepted accordingly with no order as to costs. M.H./M‑878/L Revision allowed.