P L D 1957 (W (PLP)

AKHLAQUE HUSA1N, J.‑

This appeal arises out of a suit for accounts by the appellant firm against the respondent Bank in which a preliminary decree was passed by Mr. Muhammad Abdullah Cheema, Additional Senior Civil Judge, Rawalpindi; but on appeal the suit was dismissed by the learned Senior Civil Judge, Rawalpindi, with enhanced appellate powers, by his judgment and decree dated the 30th of October 1954. In order to appreciate the questions which call for deter mination in this appeal, it is necessary to state at some length the facts which led to the present suit. The plaintiff firm (hereinafter referred to as the firm) consists of two partners, namely, la1aji Abdul Qadir and Sh. Abdul Basir. The firm had a loan and over‑draft account with the defendant, the Trader's Bank Limited, hereinafter referred to as the Bank, and in 1944 had pledged with the defendant as security (a) certain shares which they held in Pindi and Kashmir Transport Company, and (b) certain insurance policies on the lives of its two afore‑mentioned partners. A few years afterwards, a dispute arose between the firm and the Bank regarding their dealings and it was referred to the arbitration of one Shamas Din, who made his award on the 31st of August 1949. By that award the firm was held liable to the Bank for the amount of Rs. 2,98,288‑0‑6 and was directed to pay off that amount in monthly instalments of Rs. 10,

000. The award further provided that in default of two instalments the entire amount remaining due to the Bank shall become payable to it at once. The only other term of the award which it is necessary to refer for the purpose of this appeal is contained in paragraph 13 which runs as follows :‑ "The debtor firm or its individual partners shall authorise the Official Liquidator of the Pindi Kashmir Transport Ltd. (in Liquidation) to pay all the moneys due of the partners of the debtor firm from the said company in lieu of the shares standing in their name jointly or severally, in the boos of the Company to the Bank and the amount so received. if any, by the Bank shall be adjusted in lieu of the payments in instalments to that extent and the debtor firm will not be liable to pay monthly instalments then due to the Bank to the .extent of this amount. The Bank shall deliver to the Official Liquidator, Pindi‑Kashmir Transport Limited (in Liquidation) the share scraps of the Pindi Kashmir Transport Company as and when the Bank is asked in writing to do so by the debtor firm." A decree was passed in terms of the award on the 24th of April 1950. It appears that on the 1st of July 1950, the Bank applied to the Liquidation Court for transfer of the shares of the Firm in the Transport Company, which was then in liquidation, to its own name on the allegation that they had been trans ferred to it by the Firm on the 5th of May 1947. Neither the plaintiff nor the liquidator resisted the claim and the shares were duly entered in the name of the Bank. It may be mentioned here that, on the basis of the evidence produced in this case, learned counsel for both the parties are agreed that in cases of such share scrips as are involved in this case the practice of the Bank is to obtain the signature of the pledgor to an endorsement of transfer on the documents con cerned. ‑(In this case the shares of the Transport Company). The name of the transferee is not at the time mentioned in the endorsement‑obviously to enable the Bank, at its option, to subsequently transfer the shares either to itself or to any other person that it may consider proper. Mr. Rizvi for the respondent also stated at the Bar, and this statement was not controverted by the learned counsel for the appellant, that even after such an endorsement (and even when the name of the transferee has been filled in the endorsement) the nature of the transaction remains, according to the prevailing practice, that of a pure pledge and that the transfer becomes effective only after notice of the transfer is given by the Bank to the pledgor. Admittedly in this case no such notice was ever given by the Bank to the Firm. The Firm instituted the present suit on the 1st of July 1952. The relevant allegations and the relief asked for are contained in the following paragraphs of the plaint. "(6) That the plaintiffs sometime after the signing of the consent decree learnt that the defendants had on one hand fraudulently arranged to transfer the shares of the Pindi Kashmir Transport Ltd., in their own favour while on the other they claimed instalments from the plaintiffs in terms of the decree. (7) That the representatives of the defendant bank for a few months would neither confirm nor deny the transfer of the shares when questioned by the plaintiffs. (8) That on 1st July 1950, the defendant bank during the liquidation proceedings of Pindi‑Kashmir Transport Ltd., in the High Court, Lahore, claimed the ownership of the shares for Rs. 1,83,000 which had been pledged with them as security only. These shares showed the transfer date y 1947, regarding which the plaintiffs have no knowledge. (9) That the plaintiffs have already accepted before the High Court, Lahore, the transfer of the shares as claimed by the defendants. (10) That the defendants have apart from amounts paid to them at Lahore recovered several amounts in respect of life policies discharged by the plaintiffs in their favour. (11) That the defendants are liable to give credit to the plaintiffs for the face value of the shares they had trans ferred in their own favour plus the premium of 30 /o available on the date of the transfer. (12) That it is prayed that decree for rendition of accounts with. costs may be passed in favour of the 'plaintiffs against the defendants and subsequently the final decree may be passed regarding the amount found due after rendition of accounts from defendants to the plaintiffs. It is also prayed that any other relief which is found due may also be granted in the interest of justice". The learned lower appellate Court dismissed the suit on the grounds (a) that it was barred by the provisions of section 47 of the Civil P. C , and (b) that a suit for accounts between a decree‑holder and judgment‑debtor is not maintain able. Learned counsel for the appellant has stated before me that the whole object of the suit was to get the benefit of the value of the shares as it stood on the date of the transfer, namely, the 5th of May 1947, and not merely the amount which may be payable in liquidation ill respect of these shares. He contended that in a sense he was asking for a modification of the consent decree based upon the award to the extent that it treats the shares as belonging to the firm and not to the Bank ; and that such a suit is not maintain able under section 47 of the Code of Civil Procedure. He relied upon a ruling of the Tripura High Court in Associated Bank of Tripura v. Sonatan Gope (A I R 1954 Tripura 5) which lays down that the validity of the decree cannot be challenged before the execution Court but by civil suit. There can be no dispute regarding that proposition but the question is whether the present suit for accounts is a suit for challenging the validity of the decree in question. Learned counsel contends that in substance such is the object of the suit. It may or may not have been the object but the suit itself as framed is not one for either setting aside or modification of the decree. There is no allegation in the plaint against the validity‑in part or in whole‑of the decree and no such relief has been prayed for. Nor has the requisite Court‑fee for such a relief been paid. I am, therefore, unable to treat this suit as one for setting aside, or modification of, the decree. This being so the decree stands and the plaintiff had to make his claim, for what it was worth, in accordance with the provisions of section 47 of the Code of Civil Procedure, because the entire relationship between the plaintiff and the defendant as debtor and creditor and the state of accounts between them had been the subject of that decree. It may also be mentioned that at no stage of the suit an amendment of the plaint was asked for by the plaintiff. After the order in this appeal had been pronounced, learned counsel for the appellant asked this Court to consider the question of the amendment of the plaint. As regards the other finding of the lower appellate Court that a suit for accounts between the decree‑holder' and the judgment‑debtor is not maintainable in respect of matters which have been disposed of by the decree, learned counsel for the appellant, without denying the proposition in abstract, reverted to his contention that this suit was really one for modification of the decree. He argued that once a decree is modified there could be no objection to the frame of the suit. But the decree has neither been modified in a previous suit, nor has its modification been asked for in this suit. Therefore, the question of taking accounts between the plaintiff and the defendant whose present relationship qua the transaction in question, is only that of judgment‑debtor and decree‑holder, cannot arise. For the reasons stated above, the decree of the lower appellate Court must be upheld and this appeal dismissed with costs. A.H. Appeal dismissed.