P L D 1983 Lahore 445 (PLP)

The facts giving rise to this Execution Second Appeal are that the appellant, Abdul Khaliq filed a suit for the recovery of Rs. 1,

000. There were three defendants in the suit. Two of the defendants are respondents in the instant appeal. They are Haji and Mst. Sharifan. The third defendant was Mst. Rehmat Khatoon. It was alleged by the appellant that Mst. Rehmat Khatoon had got Rs. 1,000 from him on the promise of contracting marriage with him but she had failed to do so. In regard to the respondents, his averment was that they had persuaded him to pay Rs. 1,000 to Mst. Rehmat Khatoon and, therefore, they were also impleaded as defendants. He claimed the said amount from all the defendants. . While resisting the suit, it was urged by the respondents that there was no cause of action against them inasmuch as even according to the appellant (plaintiff), they were not parties to the agreement on which his claim was based. Of the five issues framed in the suit, Issue No. 3 related to the aforesaid plea of the respondents and it made the following reading: "Whether there is no cause of action against defendants Nos. 2 and 3 7" The Civil Judge, Khanpur, District Rahimyar Khan, who decided the suit recorded following finding on Issue No. 5: "Defendants Nos. 2 and 3 are the mother had step-father of defendant No. 1 and are said to be the persons who persuaded the plaintiff to pay the money to defendant No.

1. It is also alleged that they later on persuaded the defendant No. I not to marry the plaintiff: Although these allegations are not established, yet the plaintiff had claimed a cause of action against them which is not proved. They are a sort of pro forma defendants. The issue is therefore, decided against the defendants." The learned Civil Judge, however, decreed the suit against all the defendants, with costs; and a decree sheet was drawn up accordingly. Two of the defendants, namely, Mst. Rehmat Khatoon and Mst. Sharifan filed a joint appeal against the judgment and decree of the learned trial Court but it was dismissed as withdrawn. Thereafter, the appellant took out proceedings for execution of the decree against the respondents. They filed an objection petition stating that "they had not been made liable by the decree to pay the decretal amount to the appellant" and, therefore, the decree could not be executed against them. Their objection found favour with the learned executing Court with the result that the execution application was dismissed. Being dissatisfied with the order made in this behalf, the appellant filed an appeal before the District Judge, Rahimyar Khan, but in vain. He has, therefore, come up in second appeal to this Court.

2. Operative part of the order of the learned District Judge by which the first appeal was dismissed reads thus- "The learned counsel for the appellant made an attempt to stretch the literal interpretation of the operative portion of the judgment of the learned Civil Judge directing the suit to be decreed to the extent of making the respondents answerable for the decree. However, the learned Civil Judge's finding in unequivocal words that the appellant had not established any cause of action against the respondents who were just pro forma defendants leaves no room for doubt that they were not liable to discharge any obligation under the decree. The mere fact that Mst. Sharifan respondent joined Mst. Rehmat Kbatun to file an appeal against the decree does not create any liability of Mst. . Sharifan who was not held liable in any manner by the learned trial Court to pay the decretal amount. The view formed by the learned executing Court is quite correct and is affirmed. There is no substance in appeal which is dismissed in limine."

3. It was contended by learned counsel for the appellant that the executing Court could not go behind the decree even though it was erroneous and since the decree passed by the learned trial Court was as much against the respondents as against Mst. Rehmat Khatoon, the learned executing Court could not decline to execute the decree on the ground that according to the learned trial Court the appellant had failed to substantiate his plea against the respondents. In this connection, reliance was placed by him on Messrs Haji Ahmed & Co. v. Muhammad Siddigue and others (P L D 1965 Kar. 293) and Ghanaya Lal and others v. Punjab National Bank Ltd., Lahore (A I R 1932 Lab. 534).

4. In reply, it was urged by learned counsel for the respondents that in view of the finding of the learned trial Court on Issue No. 3 the respondents were rightly exonerated by the learned executing Court. He did not cite any authority to meet the argument of learned counsel for the appellant that the learned executing Court could not go behind the decree.

5. I am unable to agree with the learned District Judge that the learned trial Court had decided Issue No. 3 "in unequivocal words". It was certain remarked by the said Court that allegations against the respondents had not been established and they were "a sort of pro forma defendants but; despite that he decided the issue against the defendants. According to concluding sentence of his finding on Issue No. 3, therefore, the appellant (plaintiff) had cause of action against the respondents (defendants Nos. 2 and 3) as well.

6. Even if the view taken is that while deciding Issue No. 3 the learned trial Court had held that the respondents were not liable to pay the amount in dispute it would be of little avail to them. The suit was, undoubtedly, decreed against all the defendants, including the respondents who were arrayed as defendants Nos. 2 and 3 in the suit. The decree sheet was also prepared accordingly. The appellant too had claimed the amount in dispute from all of them. According to the judgment and decree of the learned Civil Judge, therefore, the respondents were also liable to pay the decretal sum. If the. respondents were not satisfied with the decree passed against them they could assail it by means of an appeal. One of them, namely, Mst. Sharifan together with Mst. Rehmat Khatoon, who was one of the defendants in the suit, had actually filed a joint appeal which was subsequently withdrawn by them and was, therefore, dismissed. Thus, the decree had attained . finality and it had got to be executed even if it was erroneously passed against the respondents. The executing Court cannot rectify any mistake in the decree because it would tantamount to going behind the decree. And as ruled in the case of Messrs Haji Ahmad & Co., cited by learned, counsel for the appellant, the executing Court cannot go behind. the decree. In the case B Ghanaya Lal and others, which was also relied upon by learned counsel for the appellant, it was observed by a Division Bench of the Lahore High Court that "the rule of law is firmly established that where the decree is free from ambiguity, the Court of execution is bound to execute it whether it is right or wrong". In the present case the decree granted by the learned trial Court was unimbiguously against all the respondents and, therefore, i could be executed against all of them.

7. As for the submission of learned counsel for the respondents that while deciding Issue No. 3 the learned trial Court had found that the plea raised against the respondents had not been established, it has already been/ noted that the learned trial Court had recorded self-contradictory finding on the above issue. Even if it is assumed that the finding on that issue was, in fact, in favour of the respondents it is of no use to them because C what has to be executed is not a particular finding of the trial Court but the decree which is ultimately passed by it. The decree granted by the learned Court of first instance was against the respondents also and since it was not interfered with by any higher Court, it deserves to be executed as it is, regardless of the finding of the learned Civil Judge on Issue No. 3.

8. In view of the above discussion, the orders passed by the two Courts below in relation to execution of the decree in dispute are not sustainable. I, therefore, accept this appeal with costs, set aside the impugned orders of the two Courts below and remand the execution application to the learned executing Court for further proceedings in the light of above observations and according to law. M. Y. H.????????? Appeal accepted.