2006 PLP 1849 (MLD)

TARIQ SHAMIM, J.

Through this constitutional petition the petitioner has challenged the orders of the learned executing Court, dated 16-2-2006 and the learned revisional Court, dated 12-5-2006.

2. The brief facts of the case are that respondent No.3 filed a suit for recovery or Rs.1,20,000 on the basis of promissory note against the petitioner/defendant who on appearance before the trial Court conceded the claim of respondent No.3 and admitted the execution of pro note. Consequently the parties jointly filed a written compromise deed Exh. C1 on the basis of which the suit filed by respondent No.3 was decreed in his favour and against the petitioner. By virtue of the said compromise deed it was agreed between the parties that the decretal amount would be paid to the decree-holder i.e. respondent No. 3 till 31-5-2005 and if he failed to discharge his liability in terms of the compromise respondent No..3/decree-holder would be at liberty to file execution petition to recover the decretal amount from the petitioner/judgment-debtor.

3. Since the petitioner failed to abide by the compromise arrived at between the parties as such as 8-6-2005 respondent No.3 filed an execution petition before the learned trial Court on which process was issued to the petitioner who on appearing before the learned executing Court filed an application stating therein that an amount of Rs.1,07,000 had been paid by him to the decree-holder and the decree having been satisfied the execution proceedings were misconceived. In the said application the petitioner referred to two cheques issued by him and purportedly encashed by respondent No.3. The said application was resisted by respondent No.3/the decree-holder who denied the receipt of any amount from the petitioner through cheques whereupon, the learned executing Court framed issues and after recording evidence led by the parties in-respect of their claims, dismissed the application filed by the petitioner. The said order was challenged by the petitioner in revision before the learned Addl. District Judge Dera Ghazi Khan which was also dismissed vide the impugned order, dated 12-5-2006.

4. The learned counsel for the petitioner contended that the petitioner paid Rs.40,000 through a cheque, dated 13-5-2005 drawn on National Bank of Pakistan in the name of respondent No.3 and another cheque in the sum of Rs.67,000, dated 21-5-2005 also issued in the name of respondent No.3 and the balance amount had been deposited in the Court. Since the decree stood satisfied, hence the execution proceedings were misconceived. Further submitted that before the learned executing Court the petitioner had proved the payment of Rs.1,07,000 out of Court to respondent No.3. Also maintained that the receipt of payment of the amount of Rs.1,07,000 by respondent No.3 was evident from Mark `C' a certificate issued by the Bank Manager which showed encashment of the cheques by respondent No.3/decree-holder. Lastly stated that the judgments of both the Courts below were based on surmises and conjectures as the evidence of the petitioner was not discussed by the learned Courts in the impugned orders.

5. On the other hand, the learned counsel appearing on behalf of respondent No.3 contended that the instant writ petition has been filed by the petitioner in order to delay the proceedings. The cheques in question were bearer cheques which had been encashed by the petitioner or some one on his behalf. Even otherwise if the claim of the petitioner was a genuine, he should have obtained a receipt from the respondent regarding payment of the amount in question in terms of the decree passed by the learned Civil Court and since no such receipt had been placed on the record as such the payment of the amount in question was not proved and the decretal amount was still outstanding against the petitioner. He further maintained that CW1 Karam Hussain Khosa the Manager National Bank Jampur in his examination-in-chief before the learned executing Court categorically stated that the signatures of respondent No.3 purportedly affixed on the back of the said cheques did not match with the signatures of the respondent on the execution petition and the power of attorney submitted in the learned court.

6. I have heard the learned counsel for the parties and perused the record.

7. It is not denied that agreement of compromise Exh.C/1 was executed by both the parties which specified the mode for the payment of the decretal amount. The petitioner did not adopt the mode of payment of decretal amount as settled between the parties by the virtue of the said deed of agreement. Even otherwise Order XXI Rule 2 of C.P.C. provides mode for payment of money under a decree out of Court. For easy reference Rule 2 ibid is reproduced hereunder:

"R.2. Payment out of Court to decree-holder.

(1) Where any money payable under a decree of any kind is paid out of Court, or the decree is otherwise adjusted in whole or in part to the satisfaction of the decree-holder, the decree-holder shall certify such payment or adjustment to the Court whose duty it is to execute the decree, and the Court shall record the same accordingly. (2) The judgment-debtor also may inform the Court to such payment or adjustment, and apply to the Court to issue a notice to the decree-holder to show cause, on a day to be fixed by the Court, why such payment or adjustment should not be recorded as certified; and if after service of such notice, the decree-holder fails to show cause why the payment or adjustment should not be recorded as certified, the Court shall record the ' same accordingly. (3) (Any payment not made in the manner provided in rule 1 or any adjustment not made in writing shall not be recognized by the Court executing the decree)." A perusal of rule 2 ibid clearly reveals that the conditions laid down under the law for payment of money out of Court were not followed by the petitioner. The petitioner also could not prove before the Courts that the amount in question had been paid to respondent No.3 through the cheques aforementioned as the same were neither crossed cheques nor were the same exclusively issued in the name of respondent No.3 but in fact the same were bearer cheques which could be encashed by anyone. The Manager National Bank of Pakistan while appearing as a Court witness categorically stated that the cheques referred to by the petitioner were bearer cheques and that the purported signatures on the reverse side of the cheques did not match with the signatures of the respondent No.3 on the execution petition as well as the power of attorney submitted by him in the learned executing Court. No receipt has been placed on the record by the petitioner in support of his claim to show that the amount in question had been received by respondent No.3. Further the learned counsel for the petitioner has not been able to refer to any portion of the statement of any of the witnesses to show non-reading or misreading of evidence by the learned Courts below.

8. The learned counsel when questioned as to the maintainability of the writ petition has not been able to satisfy the Court although he has referred to the case of Qamar-ud-Din v. Muhammad Din and another (PLD 2001 SC 518) wherein it has been observed by the Hon'ble Supreme Court that exercise of jurisdiction under Article 199 of the Constitution depends solely on the merits of each case. The merits of the instant case do not call for interference in the exercise of constitutional jurisdiction of this Court. A Court or a Tribunal may decide a matter' rightly or wrongly and even if a decision given by such Court or Tribunal is wrong it does not render the decision without jurisdiction. Further reappraisal of evidence in writ petition is also not permissible. Reference is made to the case of Abdur Rehman Bajwa v. Sultan and 9 others PLD 1981 SC

522. Even otherwise, concurrent findings of fact cannot be interfered with in exercise of constitutional jurisdiction by this Court. Reliance is placed on the case of Moazam Hanif v. Settlement Commissioner/Collector and others (2006 SCMR 642). For what has been discussed above the petition being without merit is dismissed. There shall be no order as to costs. S.M.B./Y-8/L Petition dismissed.