2013 PLP 1516 (YLR)
RASHID AHMAD through L.Rs. and others — Appellants Versus NAZAR HUSSAIN MALIK and others — Respondents
| Citation | 2013 PLP 1516 (YLR) |
| Forum / Court | Lahore |
| Bench Members | Amin-ud-Din Khan, J |
| Parties | RASHID AHMAD through L.Rs. and others — Appellants Versus NAZAR HUSSAIN MALIK and others — Respondents |
| Primary Law | Civil Procedure Code (V of 1908) |
Q1: What are the key laws and sections cited in 2013 PLP 1516 (YLR)?
This judgment primarily cites: Civil Procedure Code (V of 1908) as referenced in Pakistani case law index.
Q2: Which judicial bench decided the case 2013 PLP 1516 (YLR)?
The case was heard and decided by the Lahore bench comprising: Amin-ud-Din Khan, J.
Q3: What is the official citation format for this judgment on Pakistan Law Portal?
Cite this legal precedent as: 2013 PLP 1516 (YLR) (RASHID AHMAD through L.Rs. and others — Appellants Versus NAZAR HUSSAIN MALIK and others — Respondents). Read the full summary and cross-referenced laws free on Pakistan Law Portal.
Laws Cited
Representation
- Ch. Aamir Rehman for Appellants.
- Muhammad Akram Khan Awan for Respondent No.1.
- At this stage learned counsel for respondent No.1/decree holder raised two preliminary objections: that the order impugned is dated 25-6-2005, whereas the appeal in hand has been filed on 14-2-2012, therefore, it is hopelessly time barred and further that the surety has not approached in the first instance the Executing Court as such this appeal is not maintainable. The basic defence of the appellant is that he was a surety for the execution of the decree and after that the decree was passed on the basis of compromise between the parties, therefore, his liability absolves when the parties agree to a decree in which is not a decree which was prayed in the suit.
- 3. So far as the point of limitation is concerned F.A.O. No.193 of 2005, filed by the judgment debtor against the same impugned order was filed within prescribed period of limitation and was pending before this Court, therefore, on the basis of Pakistan Television Corporation v. S. Ahtramullah (1987 SCMR 753) learned counsel for the appellants states that it cannot be dismissed on the basis of period of limitation. I agree with the argument of the learned counsel for the appellants to the extent of period of limitation. So far as the other objection of the learned counsel for the decree holder/respondent No.1 is concerned that the appellants are required to raise all available objections to them before the Executing Court at the first instance and then if required challenge the same before the appellate Court. I agreed with the contention of the leaned counsel for respondent No.1 therefore, I do not want to comment upon the objections raised by the appellants with regard to the execution petition against the surety as it may not prejudice the case of any party before the proper forum.
Headnotes / Summary
S.47
Constitution of Pakistan (1973), Art.199
Constitutional petition
Execution of decree, objection of
Appellants were required to raise the objections before the Executing Court at the first instance and then to challenge the same before the Appellate Court
Constitutional petition was not maintainable, which was dismissed.
Judgment & Decree
AMIN-UD-DIN KHAN, J.
Through this appeal the appellants have challenged the order dated 25-6-2005, passed by the Executing Court whereby warrant of attachment of the property of the judgment debtor as well as surety has been issued.
2. Brief facts of the case are that respondent No.1 filed a suit for recovery of Rs.80,00,000 against respondent No.2 on 8-3-1999. Rashid Ahmad (deceased) appellant filed surety bond in the trial Court on 14-7-1999 and also made a statement before the Court that in case of decree against the defendant/judgment debtor he will be responsible for the satisfaction of the same. Afterwards the parties to the suit entered into a compromise, compromise deed was written on 1-3-2001, which was presented before the Court, statements of the parties were also recorded by the Court on 22-3-2001 and on the basis of compromise the suit was decreed. Execution petition has been filed. The Executing Court passed the impugned order. At this stage learned counsel for respondent No.1/decree holder raised two preliminary objections: that the order impugned is dated 25-6-2005, whereas the appeal in hand has been filed on 14-2-2012, therefore, it is hopelessly time barred and further that the surety has not approached in the first instance the Executing Court as such this appeal is not maintainable. The basic defence of the appellant is that he was a surety for the execution of the decree and after that the decree was passed on the basis of compromise between the parties, therefore, his liability absolves when the parties agree to a decree in which is not a decree which was prayed in the suit.
3. So far as the point of limitation is concerned F.A.O. No.193 of 2005, filed by the judgment debtor against the same impugned order was filed within prescribed period of limitation and was pending before this Court, therefore, on the basis of Pakistan Television Corporation v. S. Ahtramullah (1987 SCMR 753) learned counsel for the appellants states that it cannot be dismissed on the basis of period of limitation. I agree with the argument of the learned counsel for the appellants to the extent of period of limitation. So far as the other objection of the learned counsel for the decree holder/respondent No.1 is concerned that the appellants are required to raise all available objections to them before the Executing Court at the first instance and then if required challenge the same before the appellate Court. I agreed with the contention of the leaned counsel for respondent No.1 therefore, I do not want to comment upon the objections raised by the appellants with regard to the execution petition against the surety as it may not prejudice the case of any party before the proper forum. In this view of the matter, I see no force in this appeal and the same is hereby dismissed. However, the appellants will be at liberty to raise all objections available to them before the Executing Court. AG/R-3/L Petition dismissed.