2000 PLP 2696 (YLR)

The respondent filed a suit for specific performance of the contract, dated 4‑4‑1985. As per terms of the contract the appellant had agreed to sell the land measuring 29 Kanals 9 Marlas of the respondent at the rate of Rs.17,500 per Kanal the total consideration came to Rs.5,15,

375. However, in the plaint dealt with was stated for purposes of court‑fee to be Rs.1,10,

835. Apparently, the learned trial Court or the office failed to take note of the said fact. The appellants also did not raise a question of court‑fee and no issue was framed on the subject. The parties went on trial on issues framed and upon the conclusion of trial the suit was decreed by the learned trial Court. Against the decree, dated 29‑7‑1991 an appeal was filed in the Court of learned District Judge, Lahore. The question of the value for the purposes of court‑fee was raised before the learned District Judge. It is on record that the respondent filed an application under section 149, C.P.C. praying for grant of time to pay the deficient court‑fee on the plaint. The learned District Judge, however, and rightly so, proceeded to return the memo. of appeal to the respondent for presentation before this Court. Consequently, R.F.A. 243 of 1992 was tiled which was dismissed by Division Bench of this Court vide judgment, dated 15‑12‑1998. A perusal of the said judgment would show that whereas the question as to the valuation of the suit for the purposes of jurisdiction of the appellate forum come up in the course of hearing. However, the matter as to a deficiency in the court‑fee on the plaint as also the application tiled by the respondent to make up the deficiency was neither raised nor dealt with by the Court. I am informed by both the learned counsel that CPSLA No. 200‑L of 1999 is presently pending before the Supreme Court of Pakistan against the said judgment of this Court.

2. The present F.A.O. arises out of objection petition filed by the appellants before the learned Executing Court. The precise objection raised was that since the plaint was admittedly deficiently stamped, it was to be treated to be a void document and as such the decree resulting from the same shall also be deemed to be void and cannot be executed. This petition was resisted by the respondent and the learned Executing Court dismissed the same vide order, dated 19‑7‑2000.

3. Learned counsel for the appellants has repeated the same contention which had not found favour with the learned Executing Court. Learned counsel for the respondent who had entered appearance duri4g the limine hearing informs that in fact the court‑fee has been deposited and challan thereof has been tendered in the Supreme Court of Pakistan. Further states that the precise matter of court -fee is sub judice before the Supreme Court.

4. After hearing both the learned counsel and examining the copies of record appended with this F.A.O. as also the impugned order I do not find any force in the contentions of the learned counsel for the appellants. The jurisdiction to deal with the question of court‑fee has been clearly defined in section 12 of the Court Fees Act which provides that all questions relating to court fee are to be dealt with by the trial Court or the Court hearing an appeal, revision or reference. Clearly an Executing Court is not such a Court. The jurisdiction of an Executing Court is also clearly defined i.e. it has to execute the decrees as it is. Learned counsel for the appellants has not been able to cite any law or case‑law in support of his proposition that an Executing Court can refuse to execute a decree on the ground that the plaint in the suit in which the decree was passed was definitely stamped. I have myself made an effort and I have not been able to come across any such precedent. Even otherwise, I find that had the question being raised in the learned trial Court even, then after determining the deficiency of court‑fee the plaintiff in the suit had to be given an opportunity to make up the deficiency court- fee and it was only upon failure of the plaintiff to comply with the order that the plaint could have been rejected. Since no order as contemplated by Order VII, Rule 11, C.P.C. was ever passed by the learned trial Court or for that matter the Court dealing with appeal, there is no question of penalising the respondent.

5. I also find the conduct of the respondent to be above board. The moment the question was raised before the learned District Judge the respondent immediately took steps to secure the order for payment of court‑fee. It was not his fault that the Court did not pass any order thereon. Learned counsel is also not in a position to deny the statement made by the learned counsel for the respondent at the Bar that the court‑fee has in tact been deposited and the challan tendered in the Supreme Court of Pakistan. Finally the matter is still to be considered by the Supreme Court and till such time that the said matter is decided the decree stands as passed by the learned trial Court and affirmed by this Court and in the absence of any restraining order the learned Executing Court is bound to execute the same as it is.

6. Finding no force in this F.A.O. the same is dismissed. Q.M.H./M.A.K./M‑307/L