P L D 1973 Karachi 686 (PLP)

AGHA ALI HYDER, J.‑This appeal has arisen out of execution proceedings in the following circumstances.

2. The appellant and the respondents Nos. 1 and 2 are brothers inter se. The respondent No. 3 is their father. They jointly owned substantial properties and business concerns in Pakistan and outside. Differences having arisen in the family, they decided to refer their dispute to Haji Fazal Karim. as sole arbitrator. The said arbitrator, with the approval of the parties, made his award on 1‑6‑1963. An objection was filed, but the award was made a rule of the Court by a learned Single Judge, and accordingly a decree was passed on 6‑2‑1966. As a result of it, certain specific properties and business fell to the share of the appellant. In order to make the distribution of the business and immovable properties equitable, certain specific sums also were awarded to the appellant. These sums were made payable out of the amounts due to the parties from the Karachi Development Authority, the Karachi Municipal Corporation and the Military Engineering Service. Paragraphs 2, 12 & 13 of the decree which are pertinent In that context read as under :‑ "2. (I) The Factory Yousuf Iron & Pipe Mills, Karachi, (2) Kohinoor & Co., and a house In Machuwa Bazar, Calcutta, and (3) House No. III‑A 1/18 situated in Nazimabad, shall, each of the three, be considered to be the property of the party of the second part. The party of the 1st part shall nave no proprietary rights in or business concern with any of these three properties.

12. The party of the second part shall be entitled to the rents and income of Kohinoor & Co., Calcutta and the douse situated in Machuwa Bazar after April 1961.

13. In addition to the properties and business hereby already awarded to the party of the second part by this Award, the party of the first part shall pay a further lump sum or Rs. 60,000 (in Pakistani currency) to Muhammad Yousuf the party of the second part. In full settlement on account of the cessation of his interest in the firms and properties mentioned above. The sum of Rs. 60,000 (Rupees sixty thousand only) shall be paid in the following manner: When all the final payments of the K. D. A. bills are made, and the fixed deposit of Rs. 50,000 is refunded, at that time the party of the first part shall pay the aforementioned amount to the party of the second part. Besides this amount and the amount shown in clause 14 below, no party shall claim any thing against any other party."

3. The appellant in Execution Application No. 17 of 1966, filed on 3‑3‑1966, applied for the attachment of the sums payable to the parties by the garnishees and also of the properties of the respondents, as he claimed a sum of Rs. 5,30,000 on account of the rents and profits of Kohinoor Co., and the House in Machuwa Bazar. Calcutta. It was further stated that 1n due course, an application would be mad: to the Court to determine the actual amount due from the respondents.

4. The learned Single Judge allowed the application for the attachment of the sums in the hands of the garnishees and the payments there-from of the sums payable to the appellant, but he disallowed the appellant's claim for the recovery of the amounts by way of rent and profits of the business and the house awarded under paras. 2 and 12, on the ground that these parts of the decree were merely declaratory and therefore inexecutable, resulting in this appeal. The respondents fled a cross‑objection, but in the events that have followed, and need not be re‑counted, it is not necessary to advert to the same. All that remains to see is whether, paras. 2 and 12 of the decree were declaratory or executory.

5. Mr. Tayabji, learned counsel for the appellant, in the course of his address, referred us to the following cases‑Mst. Lachmi Bai v. Asudomal (1 S L R 184), Gokaldas Divarkadas v. Otandas (2 S L R 33), Lalibai v. Valiram Ghanshamdus and others (7 S L R 192), Bannumal v. Paras Ram and another (A I R 1930 Lah. 110), S. Pilloi and another v. L. Petter & others (A I R 1928 Mad. 474), Siraj Bakhsh v. Ganga Bakhsh (A I R 1927 Orrisa 457.), J. Rustomji v. Guranditta Mal (A I R 1915 Lah. 207), Gangaram v. M. Bhatta and another (A I R 1937 Mad. 879), G. Sanmukhmal v. Mst. Bhombo (A I R 1943 Sind 11) and Ramanand and others v. Jai Ram arid others (I L R 43 All. 170). The rule deducible there from is that decree will be declaratory, if it merely declares or creates the right, while in an executory decree, "there is a definite order to a definite person to do or refrain from doing a certain thing, either forthwith or at a given future date or to the happening of a certain event". The matter is therefore to be examined in the light of the aforesaid test.

6. It is clear from the terms of the decree set out earlier, that the decree did not contain any absolute direction. It stopped short with declaring the rights and the obligations of the parties relating to the property forming the basis of the claim sought to be enforced through these execution proceedings. There was no provision therein that the rights so fixed were to be enforced by execution proceedings much less against the respondents. The decree under the circumstances would be just declaratory in nature, and, therefore, incapable of execu tion.

7. Even on merits, the claim is not sustainable. The learned Single Judge, from that point of view, considered it expedient In the interest of justice to record the statement of Khawaja Abdul Rashid, respondent No. 2 before us. No objec tion was taken to this step at that time. The appellant did not even indicate his desire to enter the witness‑box himself or produce any body else on his behalf, to give any other version of the affairs in controversy. No grievance was made of it in the Memorandum of Appeal either, though Mr. Tayabji, learned counsel for the appellant has now chosen to find fault with the course adopted. It is rather belated.

8. Khawaja Abdul Rashid has stated that the rent of the house in Machuwa Bazar used to be collected by Said Ali and Abdur Rauf, who are Indian nationals and the business of Kohinoor & Co. was looked after by its employees, who did not make any remittances to them.

9. In the result, I will dismiss the appeal with costs. GHULAM RASOOL K. SHEIKH, J.‑I agree. K. B. A. Appeal dismissed.