2025 PLP 1947 (CLC)

AURANGZEB, J.

Through this First Appeal Against the Order under section 104 read with section 151 of the Code of Civil Procedure, 1908, the appellant has challenged the order of Additional District Judge-III, Abbottabad dated 07.01.2025 whereby the objection petition filed by judgment debtors under section 47 read with section 151 C.P.C. was dismissed.

2. Arguments of learned counsel for the parties were heard in considerable detail and the record perused with their able assistance.

3. The case involves the acquisition of property belonging to the decree holders, including the late Farid Shah, by the judgment debtors/appellants through Award No. 176 dated May 10, 2004, for defense purposes. Dissatisfied with the compensation, the decree holders sought enhancement under Sections l8 and 30 of the Land Acquisition Act, 1894, which was granted on March 30, 2013. Both parties appealed to the Peshawar High Court, Abbottabad Bench, which upheld the Referee Court's decision on October 22, 2014 and subsequently, the decree holders initiated an execution petition. The trial court issued notices to the judgment debtors/appellants and directed the concerned Patwari Halqa to submit a Goshwara, which was provided on October 29, 2024. The court then ordered the judgment debtors/appellants to pay the decretal amount as specified. Instead of complying, the judgment debtors/appellants filed an objection petition.

4. The Goshwaras of the legal heirs (L.Rs) of the deceased Farid Shah, available on the case file, have been verified by Patwari Halqa LAC, who recorded his statement before the court while producing a copy of Naqsha Tajwezi and the acquaintance roll. These documents reflect the name of Farid Shah, indicating that he was declared entitled to receive the compensation amount as assessed by the Collector lRevenue officials. A reference petition for the enhancement of compensation was filed before the Referee Court, which was allowed through its judgment dated 30.03.2013. This decision was subsequently upheld by this Court through its judgment dated 22.10.2014. Notably, no objections were raised by the judgment debtors/appellants, who were contesting parties in the proceedings.

5. Another significant aspect of the case is that the Award available on the case file establishes that compensation for the acquired land was to be distributed among the owners based on their respective entitlements as recorded in Register Haqdara-e-Zameen under Khana Malkiat. Meanwhile, compensation for land that had been sold, as recorded in Khana Kasht, was to be paid to the purchasers in Khana Kasht to protect their interests. Therefore, the objections raised by the counsel for the judgment debtors, challenging the entitlement of the decree holders to the compensation amount, appear to be unjustified. Consequently, these objections are declined, as the name of their predecessor, Farid Shah, is duly reflected in the revenue record as an owner in Khana Kasht. 5.(sic) During arguments the learned counsel for the appellant confronted with the provision of the Civil Procedure Code, 1908, Order XXI rule 23-A pertain to the execution of Money Decree, provide a procedure for filing objection. The learned counsel for the appellant contended that their case fall under Order XXVII Rule 8-A C.P.C. which is reproduced as under:- Order XXVII SUITS BY OR AGAINST THE [GOVERNMENT] FOR PUBLIC OFFICERS IN THEIR OFFICIAL CAPACITY.

1. Suit by or against Government

In any suit by or against [the Government], the plaint or written statement shall be signed by such person as [Government] may, by general or special order, appoint in this behalf, and shall be verified by any person whom [the Government] may so appoint and who is acquainted with the facts of the case. Rule 8-A C.P.C. "No security to be required from Government or a public officer in certain cases". No such security as is mentioned in rules 5 and 6 of Order XLI shall be required from the [Government] or, where the [Government] has undertaken the defence of the suit, from any public officer sued in respect of an act alleged to be done by him in his official capacity. Order 27 Rule 8-A of the Code of Civil Procedure Code 1908 states that in certain cases, no security deposit will be required from the Government or a public officer when they are being sued for action taken in their official capacity; essentially, it exempt the Government from providing security in specific legally proceeding against them. This Rules essentially means that when the Government or a public officer is sued for official acts they are not required to provide a security deposit as per the usual rules in Order XLI of the Civil Procedure Code, 1908. The exemption only applies when the Government or public officer is being sued for action done in their official capacity. While Order XXI Rule 23-A of Code of Civil Procedure Code, 1908 essentially state that if a judgment debtor wants to raise an objection against the execution of a decree, they must first deposit the decretal amount in Court or provide security for its payment before their objection can be considered, meaning they cannot simply object without first providing financial assurance to the Court, this Rule applies when a judgment debtor wishes to dispute the execution of a decree against them. Order XXI Rule 23-A as reproduced as under:- Order XXI Rule 23-A. Deposit of decretal amount, etc

An objection by the judgment debtor to the execution of a decree shall not be considered by the Court unless

(a) in the case of a decree for the payment of money, he either deposits the decretal amount in Court or furnishes security for its Payment: and (b) in the case of any other decree, he furnishes security for the due performance of the decree. This rule is considering mandatory, meaning the Court cannot entertain objection unless the security requirement is not fulfilled. In the case of Najm Koreshi v. Chase Manhattan Bank now Muslim Commercial Limited, Lahore and others reported as 2015 SCMR 1461, the Hon'ble Apex Court has held that for interest under the Decree to be applied and calculated,, it is necessary that the base figure, that is, "decretal amount", is an ascertained or a readily ascertainable amount. The view that the expression "decretal amount" should be an ascertained sum finds support from the terms of Order XXI, Rule 23A, C.P.C. wherein for raising an objection to a decree, the judgment debtor must deposit or secure the "decretal amount" with the executing court. Likewise in Muhammad Sadiq v. WAPDA (PLD 2003 SC 290) it has been held that deposit in Court under Order XXI, Rule l, C.P.C. of money payable under a decree entitles a judgment debtor to the relief of suspension in the accrual of further interest. For a deposit to be made to avail the said relief it is necessary that the requisite amount is ascertained or readily ascertainable. Such a sum is the principal amount adjudged and the decretal amount. In the present case also such sum is the decretal amount upon which interest under the Decree is to accrue. In the case of Happy Family Associate throush Chief Executiye v. Messrs Pakistan International Trading Company reported as PLD 2006 SC 226, the Hon'ble Apex Court has held that it was unfortunate that some litigants attempt to frustrate decree/its execution by resorting to provisions of Ss.12(2) and 151, C.P.C., unnecessarily

Objection to execution by judgment-debtor could not be considered unless judgment-debtor had deposited decretal amount in Court or had furnished a security for its payment, under O. XXI, R. 23-A, C.P.C.

Both the Executing Court and High Court had correctly found that objections of defendant to execution of decree were liable to be dismissed for failure to comply with the provisions of O. XXI, R. 23-A, C.P.C., in spite of the order of Executing Court

Leave to appeal was refused. In the case of Nadeem Akhtar Tabasum v. Muslim Commercial Bank Limited and others reported as 2014 SCMR 1371, the Hon'ble Apex Court has held that mortgaged property was put to auction twice

First auction was set aside at the motion of the judgment-debtor and other objectors and re-auction was ordeled

Judgment-debtor was fully aware of the re-auction proceedings

Judgment-debtor could not challenge the auction on grounds that notice was sent to the incorrect address, as notice was also published in the newspaper

Part of decretal amount already paid by the judgment debtor was adjusted by the bank/decree holder towards the outstanding liability of the judgment debtor

Appeal filed by judgment-debtor against judgment of Banking Court was rightly dismissed in limine by the High Court

Petition for leave to appeal was dismissed accordingly and leave was refused.

6. In view of the above discussion and exposition of law on the subject, the instant Appeal against the Order being bereft of any merits is hereby dismissed and consequently the impugned judgment and decree of the learned Trial Court dated 07 .01.2025 is maintained and upheld. MH/103/P Appeal dismissed