1983 PLP 790 (CLC)

(c) Constitution of Pakistan (1962)‑ ‑Art. 98‑Writ jurisdiction‑Re‑appraisal of evidence, held, cannot be undertaken in exercise of writ jurisdiction‑Material available on record sustaining finding of civil Court‑Petition primarily aimed at seeking re‑appraisal of evidence‑Exercise cannot be undertaken in writ jurisdiction‑Petitioner not challenging decree through appeal, held, precluded from challenging same in writ jurisdiction on this score also.‑[Appeal]. Muhammad Akbar for Petitioner. Ch. Asghar Ali for Respondents. Date of hearing: 2nd November, 1982. The facts of this case in brief are; that from January, 1949 to June, 1952, the petitioner acted as Manager of the Phularwan Branch of Central Co‑operative Bank, now Punjab Provincial Co‑operative Bank and during this period, an account holder, namely, Mir Baz obtained a loan from the Bank, which he failed to repay. Accordingly, on 28‑1‑1955, the Bank brought a suit against him for recovery of Rs. 31,285.11 inclusive of interest to which the petitioner was also impleaded as a defendant, on the ground that in C. L. C. 2 managing the affairs of the Bank he was guilty of culpable negligence and thus caused to it a wrongful loss to the extent of the said amount. Both the defendants contested the suit. The learned Senior Civil Judge, Sargodha decreed the suit on 23‑12‑1955 against both the defendants who were held liable jointly as well as severally. The petitioner did not challenge this decree through an appeal and so also the other defendant. It, therefore, attained finality.

2. The Assistant Registrar, Co‑operative Societies Sargodha, proceeded to recover the amount due under the decree, with future interest, as arrears of land revenue and in pursuance of section 5 of the Revenue Recovery Act, 1890, issued a recovery certificate for Rs. 55,728.81 to the Assistant Registrar, Layallpur‑East (now Faisalabad) to recover the same from the petitioner, under section 6 of the Act. The petitioner has now invoked the writ jurisdiction of this Court, to assail the recovery.

3. I have beard the learned counsel for the parties and examined the available record. It was argued on behalf of the petitioner that since the dispute, which was the subject‑matter of the civil suit, could be dealt with by the Registrar, under section 54 of the Co‑operative Societies Act, 1925, clause (a) of section 70‑A was a bar to the suit; the decree dated 23‑12‑1955 was ever got executed by the Bank; as the Court lacked jurisdiction to cent ain the suit; the decree was a nullity;‑ being a void instrument, it did not Teat any right in favour of the Bank; the petitioner, in law, was not bound challenge such a decree through an appeal and in any case the amount payable by him there under, could not be realised, its recovery as arrears of and revenue was thus without lawful authority. It was also urged that the was sanctioned by the Bank's Director Incharge and the petitioner was not in any manner concerned with the advancing of the loan to Mir Baz Khan. In the submission of the learned counsel, the liability imposed on the petitioner, under the decree, was not based on tiny evidence.

4. A reference to the provisions of 1925 Act, for ouster of Civil Court in jurisdiction is misconceived. The Act, formally known as Sind Co‑operation 'v Societies Act, 1925, was extended to the whole of the erstwhile Province and West Pakistan, by means of West Pakistan Ordinance VII of 1965 and simultaneously, the Co‑operative Societies Act, 1912, was repealed. The recreant was passed on 23‑12‑1955 when the latter Act was in force. It did no contain any provision for departmental adjudication of a dispute, between society and a non‑member. It is not disputed that the petitioner as well the principle debtor, were non‑members. Thus, whatever may be the position under 1925 Act, the fact remains that 1912 Act, did riot bar the suit filed by the Bank. 14 therefore, cannot be said that the decree was passed without lawful authority. Presumably, for this reason, the petitioner did not object to the jurisdiction of the Civil Court during the hearing of the suit. In this view of the matter the submission resting on the assumption, that decree is a nullity is misconceived.

5. There is nothing on the record as to whether or not the Bank applied for execution of the decree. But even if it did not apply, and the right to take out the execution became barred by time, that does not mean that the judgment‑debt was extinguished and the decree ceased to exist. It is well settled that statute of limitation runs against the remedy and does not dis. charge the debit. Ibis principle i& recognized by section 25 (3) of the Contract Act which makes a time‑barred debt, as a valid consolation for a promise to pay the debt. Likewise, section 60 entitles a creditor to adjust 4 time‑barred debt, against 'an amount paid to him by the debtor, without giving a direction as to its appropriation. Thus as an adjudication of the rights of the parties, the decree remained in force and in the meanwhile 191 Act was replaced by 1925 Act, embodying section 59 (2), empowering the Registrar to recover any amount due under decree of the Civil Court, arrears of land revenue. Thus, the mode of recovery enforced against the petitioner was not illegal.

6. The argument that the decree is not based on any evidence is also without substance. There was material on the record to sustain the findings of the Civil Court. The submission of the learned counsel is primarily ‑timed at seeking the re‑appraisal of evidence, but in exercise of writ jurisdiction, such an exercise cannot be undertaken. Furthermore, the petitioner could have challenged the decree through an appeal, but as observed above he did not file any appeal. This would also preclude him from challenging the decree now.

7. As all the contentions raised on behalf of the petitioner failed, the writ petition merits dismissal and I order accordingly leaving the parties to bear their own costs. M. Y: H. Petition dismissed.