2017 PLP 375 (CLC)

MAMOON RASHID SHEIKH, J.

Through the instant petition the petitioner has called into question the order dated 04.02.2016 passed by the learned executing Court (respondent No.2); in the petition filed by respondent No.1 for execution of the judgment and decree, dated 26.11.2011, passed by the Civil Judge 1st Class, Okara, for recovery of Rs.7,361,219/- plus profit at the rate of 10% per annum from the date of decree till realization; whereby upon the petitioner's failure to pay the decretal amount he was sent to prison for a period of one year.

2. The petitioner has challenged the order dated 04.02.2016 inter alia on the grounds that before passing the order respondent No.2 did not follow the mandatory provisions of law as contained in Section 51, read with Order XXI Rule 40 of the C.P.C. inasmuch the petitioner was not given an opportunity of showing cause as to why he should not be committed to prison. It is further contended that in absence of a show cause notice the impugned order could not have been passed. Reliance in this is placed on the judgments reported as "Mehboob Alam v. Federation of Pakistan through Secretary Finance and 2 others (2003 CLC 1705), "Precision Engineering Ltd. and others v. The Grays Leasing Limited" (PLD 2000 Lahore 290) Pakistan through Military Estates Officer, Military Estate Office, Rawalpindi v. Abdul Aziz and another" (2001 CLC 1086) and "Abdul Basit Zahid v. Modaraba Al-Tijarah through Chief Executive and 2 others" (PLD 2000 Karachi 322).

3. The learned DAG submits that, without prejudice to respondent No.1's stand on merits, the instant petition is not maintainable as the petitioner has approached this Court without exhausting the statutory remedy of appeal. Contends that by virtue of the provisions of Section 47 of the C.P.C. all questions arising between the parties in execution proceedings are to be regulated by Section 47 and any order passed under Section 47 is appealable under Section 104(1) (ff) of the C.P.C. Reiterates that as the petitioner has not filed the appeal as envisaged by the said provisions, the instant petition is not maintainable and is liable to be dismissed.

4. The learned counsel for the petitioner submits that the impugned order is patently illegal. There is nothing on record to show that the requisite show cause notice was given to the petitioner. Contends that in such circumstances the non-filing of the appeal before filing of the instant petition is not fatal to the petitioner's case.

5. The learned DAG submits that the petitioner has not approached this Court with clean hands inasmuch as on 01.02.2012 during the hearing of the petitioner's RFA No.18/2012 against the decree the petitioner in order to obtain interim relief made a statement that he is a man of means and undertook to furnish a surety bond against immovable property owned by him. The petitioner, however, failed to do so, hence, his arrest in accordance with the law. The petitioner has now taken the stand that he cannot afford to pay the decretal amount nor does he own any immovable property to be submitted as security. The petitioner's appeal (RFA No.18/2012) has, however, been remitted to the District Judge, Okara, due to the change in pecuniary jurisdiction of appeal Courts brought about by the amendment in Section 18 of the Punjab Civil Courts Ordinance, 1962, through Section 6 of the Punjab Civil Courts (Amendment) Act, 2016.

6. Having considered the arguments of the learned counsel for the petitioner and the learned DAG and after going through the record I am persuaded by the arguments of the learned DAG that in essence the impugned order has been passed in furtherance of Section 47 of the C.P.C., therefore, an appeal lies in the matter under the provisions of Section 104(1) (ff) of the C.P.C. The learned counsel for the petitioner has tried to make out a case that the non-filing of the appeal by the petitioner is not fatal to his case as the impugned order is illegal and has been passed without any lawful authority. That may be so, however, the fact remains that an appeal lies in the matter and the petitioner has been unable to establish that the remedy of appeal is neither efficacious nor speedy.

7. In the interest of justice, however, and in view of the fact that the petition was filed within the period of limitation, it is directed that the office shall treat the instant petition as the petitioner's appeal under Section 104(1)(ff) of the C.P.C. and re-register the petition as such, subject to payment of Court-fee, if any. And in view of the afore-referred amendment in the Ordinance, ibid., the office shall thereafter remit the appeal to the learned District Judge, Okara to be entrusted to the Court of competent jurisdiction.

8. It is further directed that the learned Court seized of the appeal shall decide the appeal expeditiously and purely on merits without being influenced by any observation having been made in this order.

9. Order accordingly. There is no order as to costs. MH/M-5/L Order accordingly.