1997 PLP 2003 (MLD)

SALAHUDDIN MIRZA, J.‑‑‑The respondent bank had filed Suit No.327 of 1987 in April, 1987 against appellants Nos. l, 2 and 5 and three other persons, namely, Mir Tilawat Ali, Director of appellant No.1, Mst. Rana Naheed (also Director of appellant No.1), and M/s. Moeenuddin Estates and Construction Company of which respondent No.2/defendant No.3 was the Managing Partner. The last three have not joined in this appeal whereas appellants Nos.3 and 4 were not parties to the suit. The suit was filed under the Banking Companies (Recovery of Loans) Ordinance, 1979 read with Orders 34, and 37 of C.P.C. for the recovery of Rs.1,06,09,931.31 (Rupees one crore, six lakh nine thousand nine hundred thirty‑one and paisas thirty‑one only). One of the reliefs thought in the suit was as follows: "A. A decree against the defendants jointly and severally for the sum of Rs‑10,609,931.31 with interest at 14% per annum with quarterly rests from the date of filing of the suit till realisation and costs of the suit with a declaration that the following mortgaged with the said decretal amount and a preliminary decree for sale against the respective defendants Nos.2 and 6 under Order 34, Rule 4 of the Code of Civil Procedure, 1908 in para. 5‑A in Appendix ' D' to the First Schedule thereto in respect of the following properties under mortgage. B. Final decree for sale against 'the defendant Nos.2 and 6 under Order 34, Rule 5 of the Code of Civil Procedure in Form 6 Appendix ' D' to the First Schedule thereto in respect of the aforesaid mortgaged property." All the respondents were duly served but out of the six defendants, defendants Nos. l, 3 and 6 moved application for permission to defend the suit and in the same application they admitted their liability to the extent of Rs.91,51,075.42. Learned Single Judge vide order dated 28‑10‑1987 allowed this application, passed a consent decree for the admitted amount against defendants Nos. 1, 3 and 6 and permitted them to defend the suit in respect of the balance of the amount (Rs.14,58,855.89) on the condition that the mortgaged property shall be treated as security in this suit. On 13‑12‑1987 the suit was also decreed against the rest of the defendants. All the defendants were held liable both jointly as well as severally for the decretal amount. Thereafter the bank filed execution application (being Ex. Application No.75 of 1988) and at the stage of its hearing it‑was discovered that the relief as to the satisfaction of the decree against the mortgaged property had been inadvertently left from being incorporated in the judgment and the decree. The bank therefore moved an application under section 152, C.P.C for necessary rectification by way of adding in the judgment/order dated 28‑10‑1987 the words "against the mortgaged properties and as prayed" after the word "cost" and before the words "in respect of the balance of the claim ...." so that the operative portion of the order/judgment should read like this: "In these circumstances a decree in the sum of Rs.9,151,075.42 is passed against the defendants jointly and severally with interest at the rate of Rs. 14% P.A. from the date of suit till recovery with proportionate cost against the mortgaged properties and as prayed."

2. This application under section 152, C.P.C was hotly contested by the judgment‑debtors but was allowed by the learned Single Judge vide order dated 24‑9‑1989. It was an elaborately written order running into seven pages the operative part of which was in the following words: I therefore allow the application, amend the judgment (and direct) that the plaintiff would be entitled to preliminary decree under Order 34, C.P.C in respect of the mortgaged properties. The decree should also accordingly be modified'."

3. Feeling aggrieved from this order, ‑the judgment‑debtors filed an application under section 12(2) of C.P.C on the ground that the Court acted beyond its jurisdiction by amending the judgment as it did as section 152, C.P.C. did not permit it to do so and it acted in excess of the powers conferred upon it by section 152, C.P.C. A detailed list of the grounds is given in para. 9 of the affidavit of appellant Qamruddin, which is appended to the application, due to which the order dated 24‑9‑1989, by which the application of the Bank under section 152, C.P.C. was allowed, was, according to the appellants, without jurisdiction and in excess of the powers conferred upon the Court under section 152, C.P.C.

4. We have heard learned counsel of the parties on the main appeal as well as on the various Miscellaneous applications which are pending and would dispose them of as follows: C.M.A. No.377 of 1992:

5. This is an application under Order 1, Rule 10, C.P.C moved by the appellants for impleading Habib Bank as respondent No.2 because it has taken over B.C.C.I. which is the only respondent in the appeal. The application was, however, not pressed and it is accordingly dismissed as not pressed. C.M.A. No.714 of 1992. The respondent‑bank had moved this application under section 151 praying that the legal objections raised by it against the maintainability of the appeal be decided first. It was pointed out that on 17‑10‑1991 its counsel had raised an objection that the appeal was not maintainable as the notice under order 43, Rules 3 and 4, C.P.C was not served either on the respondent‑bank or on its counsel and learned counsel of the appellants, after conceding that no such notice was given to the respondent‑bank or its counsel, had contended that the provisions of Order 43, Rules 3 and 4, C.P.C were not applicable to this appeal and had sought adjournment to argue this point and the time was given to him and the matter was adjourned but on 4‑11‑1991 the appeal was straightaway admitted on merits to consider as to whether section 152, C.P.C. empowered the Court to amend the original judgment in the manner it was amended vide impugned judgment, without hearing and deciding the preliminary objection as to the non‑maintainability of appeal for want of notice under Order 43, Rule 3, C.P.C. and feeling aggrieved from the order of admission the respondent had gone in appeal before Supreme Court in Civil Petition No.509‑K/91 but vide order dated 24‑5‑1992 leave to appeal was refused with the observation that the High Court might hear the legal objection as a preliminary objection before hearing the appeal on merits.

7. The Hon'ble Supreme Court had not observed that the pre‑objections should be decided first‑‑‑only that they should be heard first. This has been done. However, now that sufficient delay has occurred in the disposal of the appeal, learned counsel agreed that the appeal be also heard on merits so that, if the objection as to the non‑maintainability of appeal for want of notice under order 43, Rules 3 and 4, C.P.C is rejected, the final disposal of the appeal may not be further delayed. So, after hearing the learned counsel of the parties on the preliminary objections they were also heard on the main appeal. This application has therefore become redundant and infructuous and is dismissed accordingly.

8. It appears that this application is extremely misconceived. As would appear from the phraseology of section 47, C.P.C, an application under this section is to be moved only before the executing Court and not before the Appellate Court. Appellant No.2 Qamruddin alone has moved this application and he only puts forward a compromise formula. As a matter of fact, he should have made this proposal directly to the respondent‑bank and if it was accepted an application under section 47 could have been moved before the executing Court. Be that as it may, this application has not been pressed. It is dismissed as non- maintainable as well as because it was not pressed.

9. An application under Order 41, Rule 5, C. P. C (CMA No.1184/91) for stay of execution proceedings had been moved earlier and was allowed on 27‑1‑1992 subject to furnishing of security. The appellants have now moved this fresh application under Order 41, Rule 5, C.P.C on 26‑4‑1994 and submit that they have furnished security and stay of execution be confirmed till the disposal of the appeal. Now that the appeal itself is being disposed of, this application has become infructuous and redundant and calls for no further orders and is dismissed. Bar of Appeal for want of Notice under Order 43, Rules 3 and 4, C.P.C

10. This brings us to the main appeal. We shall first take up the preliminary legal objection raised by learned counsel of the respondent that the appeal is not maintainable for want of notice under Order 43, Rules 3 and 4, C.P.C. As stated earlier, it is an admitted position that the appellants had been given such notice to the respondent‑bank or to its counsel.

11. In support of his contention learned counsel for the respondent has relied on the following two reported and one unreported judgments: (1) PLD 1983 SC 693 Mrs. Dino Maneckjhi Chinoy and others v. Mohammad Matin. (2)1985 CLC 168 (Karachi) Haji Suleman Gowawala and others v. Usman and others. (3) Civil Petition No.573‑K/1990 in the case of Muhammad Latif Ghazi v. Farid Akhtar Hadi decided by Hon'ble Supreme Court on 25th April, 1990 (vide page 1 of the copy supplied) or on 24th April, 1991 (vide last page of the copy supplied).

12. In the abovenoted first judgment (case of Dino Maneckji), the point at issue in this appeal that is, the importance of Order 43, Rule 3, has been discussed at length in paras. 15 to 18 of the judgment and the gist of the observations of their Lordships of the Supreme Court is that: "Issuance of a notice to the respondent before presentation of appeal preferred against an order passed during the pendency a suit is obligatory and no appeal can be entertained without issuance of the requisite notice ..Any appeal, which is not accompanied by such an affidavit and a copy of the acknowledgment receipt should not be entertained. " However, in para. 19 of the judgment it was held as under: "In the instant case, we observe that the learned Division Bench had issued a pre‑admission notice to Advocate of the respondents (the petitioners herein) and their Advocate Mr. Akhtar Mahmood was present on pre‑admission notice. Thus, he could contest the admission of the appeal and seek its dismissal in limine. No grievance, furthermore, was made by him to the effect that any document to which reference was being made during the hearing of the appeal had not been supplied to him or that he was otherwise taken by surprise. Thus, in this case, all the objects for which rule 3 was inserted in Order XLIII of the C.P.C. were satisfied in substance. Since the proper place of procedure is to help and not to thwart the obtaining of justice, and procedural laws, as pointed out by Mr. Sharifuddin Pirzada, should be utilized as "stepping stones" rather than, we might add, as stumbling blocks; the right of a party in this case to have his appeal heard, cannot be allowed to be defeated for failure to comply with the form where the substance has, in fact, been complied with. See Imtiaz Ahmed v. Ghulam Ali and others (PLD 1963 SC 382) and Manager, J & K State Property in Pakistan v. Khuda Yar (PLD 1975 SC 678). " The abovenoted second judgment is also to the same effect. We cannot comprehend as to why learned counsel for the respondent cited these judgments because they do not support his contention. However, the unreported order of the Hon'ble Supreme Court in Civil Petition No.573‑K of 1990 does support his contention in the following words: "

3. The mere fact that respondent No.2 had appeared before the Appellate Bench of the High Court in response to a notice for hearing of stay application would not take the case out of the ratio of the stated case (the case of Mrs. Dino Maneckji Chinoy)."

13. With these observations the Hon'ble Supreme Court declined leave to appeal in a case where appeal was presented in High Court on 10‑5‑1990 and notice under Order 43, Rule 3, C.P.C. was sent to the opposite side on 13‑5‑1990 and the High Court had dismissed the appeal for want of a notice under Order 43, Rule 3, C.P.C. (In the present case notice has not been given by the appellant at all, not even after filing the appeal). It would thus appear that the Hon'ble Supreme Court has, while approving its previous observations in paras. 15 to 18 in the case of Mrs. Dino Maneckji Chinoy, has reversed and over‑ruled its observations in para.19 of the said judgment. The law as now stands is as per para. 3 of the order in Civil Petition No.573‑K of 1990. As against this, learned counsel of the appellants has cited the judgment in the case of Abdul Ghani v. Settlement and Rehabilitation Commissioner (1984 CLC901). This judgment stands overruled in the light of the order in Civil Petition No.573‑K of 1990.

14. We would, therefore, hold that when an appeal is filed against an order during the pendency of a suit, it is absolutely obligatory upon the appellant to serve notice upon the respondent in terms of Order 43, Rule 3, C.P.C. and there is no escape from such notice. This is only but natural conclusion in view of the use of the verb "shall" in the clause"... the appellant shall ....give notice of such appeal ...."in Order 43, Rule 3, C.P.C. We do not‑‑‑and we say this in all humility and with great respect to our learned brothers‑‑‑agree with the observations in the case of M/s. Haji Suleman Gowawala (1985 CLC 168) that "neither Order 43 Rule 3 provided for any penal action if its provisions were not complied with nor its language was capable of spelling a bar to the filing of appeal without such a notice. The use of the verb "shall" in Order 43, Rule 3 negates both these observations and makes it absolutely necessary on the part of a would‑be appellant to give such a notice. If there is no notice there shall be no appeal. What more penal action can be provided? The language of Order 43, Rule 3, thus, clearly spells a bar to the filing of appeal without such a notice.

15. Learned counsel of the appellant, however, maintained that no suit was pending when this appeal was filed and therefore Order 43, Rule 3, C.P.C. was not applicable in the present case. We believe that learned counsel is experienced enough to know that it is an established principle of law that execution proceedings are no more than continuation of the suit proceedings. We have, therefore, no hesitation in rejecting this argument.

16. We are therefore of the considered view that the appeal is not maintainable and liable to be dismissed for want of notice under Order 43, Rule 3, C.P.C.

17. Learned counsel of the respondent also raised the objection that an order passed under section 12(2), C.P.C. is not appealable. We must uphold this objection as well. An order passed under section 12(2), C.P.C. is neither covered by section 104, C.P.C. nor by Order 43, Rule 1, C.P.C. which provide for appeals against orders. This view finds support from the judgment in the cases of Munir Ahmed Khan v. Samiullah Khan (1982 CLC 625) and Nathan Khan v. Muhammad Rafiq 1987 CLC 1501.

18. Learned counsel of the respondent‑bank also pointed out that there is, in fact, only one effective appellant who is appellant No.2 Qamruddin, Managing Director of appellant No.1 company M/s. Ali Asbestos Limited and who was also one of the Guarantors of the loan, and he had admitted the claim in the suit vide his Miscellaneous Application No.1034/1992 (which is also being disposed of by this judgment) and therefore the appeal has no merit.

19. It may be noted that defendant No. l (appellant No. l) is the debtor company and defendants Nos.2 to 6 are the guarantors of the loan and defendants Nos.5 and 6 are also mortgagors of their properties with the bank by way of security and defendant No.6 is a partnership firm of which appellant No.2 is the Managing Partner and defendant No.5/appellant No.5 is wife of appellant No.2/defendant No.2 Qamaruddin whereas defendants Nos.2 and 5 are also close relatives of this Qamaruddin and out of the six defendants, defendant No.2 Mir Tilat Ali, defendant No.4 Mst. Rana Naheed and defendant No.6, the partnership firm of which Qamaruddin is the Managing Partner, are not parties to this appeal. As a matter of fact, none of the defendants except the debtor-company M/s. Ali Asbestos had filed the section 12(2), C.P.C. application. Moreover, appellants Nos. 3 and 4, Nizamuddin and Moiunddin, who are both sons of this Qamruddin, were neither parties to the suit nor to the 12(2), C.P.C. application and memo. of appeal is absolutely silent as to their locus standi as appellants in this appeal and there is thus a clear case of misjoinder of parties in the appeal. It is also significant that appellant No.5/defendant No.5 Mst. Jannat Bai, wife of this Qamaruddin was not party to the judgment and decree which was the subject‑matter of section 152 application because that judgment and decree was against defendants 1, 3 and

6. She and defendants Nos.2 and 4 had neither applied for permission to defend the suit nor she, alongwith defendants Nos.2 and 4, admitted part of the claim on the basis of which consent decree for the major portion of the suit amount was passed. Her locus standi for being a party to this appeal is also shrouded in mystery. Learned counsel of the appellant could not throw any light as to the locus standi of appellants Nos. 3, 4 and 5 and they are, on the very face of the record, unnecessary parties to the appeal and liable to be struck off under Order 1, Rule 10, C.P.C. and appellant No‑1 company being under liquidation before the Company Judge at Peshawar and there being no permission from the Company Judge, Peshawar to institute or continue with this appeal, and the appeal being thus non‑maintainable on behalf of appellant No. 1, it follows, as argued by learned counsel of the respondent‑bank that tile only effective appellant is appellant No.2 Qamruddin who has, vide C.M.A. No. 1034 of 1992, conceded to the claim of the respondent‑bank in the following words: "(1) The applicant Qamaruddin Ahmed (Guarantor) shall pay the amount of Rs.15 million in full and final settlement of the claim of the respondent in Suit No.327/1987."

20. However, what all this argument boils down to? To practically nothing because appellant No.2 Qamruddin alongwith appellant No.1 and defendant No.6, who is not appellant in this appeal, had already admitted the claim in the suit to the extent of Rs.91,51,075 which amount must have increased, with the addition of interest, to 15 million rupees since 1987 and as such what is stated in CMA No.1034/1992 is of no value, specially in view of the fact that C.M.A. No. 1034 of 1992 had put up before the Court a compromise formula and clause (1) of it cannot be read in isolation with the rest of its contents. This argument is, therefore, without any substance. Argument as to bar of appeal under section 12(5) of Banking Companies (Recovery of Loans Ordinance, 1979).

21. It was also argued that the appeal was barred because compliance with section 12(5) of the Banking Companies Ordinance had not been made. The argument is without any substance. The appeal is directed against an order under section 152, C.P.C. and an order under section 12(2), C.P.C. and therefore section 12(5) of the Banking Companies (Recovery of Loans) Ordinance, 1979 has nothing to do with this appeal. The argument is rejected as untenable. Main Appeal.

22. All the preliminary legal objections raised by learned counsel of the respondent‑bank having been disposed of, we come to the main appeal. The only point for consideration is whether the order passed by learned Single Judge under section 152, C.P.C. is valid.

23. Learned counsel of the appellant argued that nature of decree could not be changed under section 152, C.P.C. and therefore the order dated 24‑9‑1989 passed under section 152, C.P.C. is not in accordance with law as it has changed the nature of the decree.

24. As would appear from A & B of the prayer clause in the plaint as re produced in para. 1 of this judgement, a preliminary decree for sale of the mortgaged property and a final decree in the same terms were prayed. These reliefs did not find any place in the judgment. There is no reason why these reliefs should not have been granted in the first instance as the learned Single Judge did not specifically decline to grant them. The decree‑holder assumed it to be an accidental slip or accidental omission and sought necessary rectification by invoking section 152, C.P.C. Learned Judge, on the basis of the record before him, found that the plaintiff was a Banking Company and in the prayer clause had prayed for a decree under Order 34, C.P.C. against the mortgaged properties and the plaintiff was entitled to such relief which was not mentioned in the judgment due to an error or omission and that "it was a clear omission not to mention the relief in the judgment to which the plaintiff were entitled and had prayed for". Now, who can read the mind of the Judge than the Judge himself? He therefore relying on the case of Raj Bahadur Singh v. Shatranji AIR 1942 Oudh 226 allowed the application. Under the circumstances, no exception can be taken to the decision of the learned Judge. We have gone through the judgment reported as 1976 SCMR 420 (Haji Ishtiaq Ahmed v. Bakhshaya and others) on which learned counsel for the appellant has placed reliance in support of his contention that the learned Single Judge acted without jurisdiction in granting the application moved by the decree holder under section 152, C.P.C. It is in respect of an entirely different case in which the plaintiff/decree‑holder in a suit of pre‑emption had appealed for the reduction of the sale price and the plaintiff was allowed not to deposit the sale price during the pendency of the appeal but the appeal was eventually dismissed but the Appellate Court did not fix any time for the deposit of the pre‑emption money and the plaintiff did not deposit the pre‑emption money until one month and 18 days after the dismissal of the appeal and plaintiff's execution application was dismissed on the ground that pre- emption money was not deposited in time. The plaintiff then moved application under section 152, C.P.C. for the amendment of the decree so as to fix a time- limit for depositing the pre‑emption money and this application was allowed on the ground that the pre‑emptor had deposited pre‑emption money "within" a reasonable time but the order was set aside by the Lahore High Court on the ground that the omission to lay down a time‑limit in the appellate decree was not such as could be corrected under section 152, C.P.C. and in such a case pre- emption money should have been deposited within a reasonable time after the dismissal of the appeal and its deposit after one month and 18 days of the dismissal of appeal was not a "deposit within reasonable time". The facts of this reported case are clearly distinguishable from the facts of the present case. Law of pre‑emption being a predatory law, condonation of delay of one month and 18 days was rightly held to be beyond the purview of section 152, C.P.C. and was rightly set aside. The other two judgments on which learned counsel of the appellants had relied are PLD 1993 Kar. 578 (Dilawar Hussain v. The Province of Sindh) and 1993 CLC 923 (M/s. National Motors v. The Muslim Commercial Bank) and they also do not in any way support the contention of learned counsel that the impugned correction/amendment was in excess of the scope of section 152, C.P.C.

25. The impugned order under section 12(2), C.P.C. is to be seen in the light of what is stated above. Its operative part is quoted below: "Mr. S.A. Samad Khan the learned counsel for the applicant has contended that this order is bad for lack of jurisdiction as under section 152, C.P.C. only accidental slips or omissions are to be corrected. In this regard the learned counsel has referred to 1976 SCMR 420, AIR 1942 Oudh 229, AIR 1917 Mad. 29, AIR 1941 Lah. 419 and 1933 All England Law Reporter

991. Undisputedly it is correct that clerical slips or omission can be corrected under section 152, C.P.C. Such errors should be apparent on the face of the record. The power under section 152, C.P.C. has been exercised to correct the mis-description of the property in the decree PLD 1980 SC 63 and 1979 SCMR

159. It can also be exercised to correct the omission to grant in the decree, the relief asked for. Reference can be made to AIR 1955 All. ???; AIR 1937 Oudh 191 and AIR 1930 Lah.

210. In 1949 Oudh 226 scope and power to amend judgment and decree under section 152 has been considered with reference to several authorities which has been relied upon and quoted in order dated 24‑9‑1989. Where the Court has passed an order unintentionally due to oversight or omission but ‑in the facts and circumstances of the case party was entitled to a relief, the Court is empowered to correct that mistake. From the facts it is clear that the jurisdiction under section 152, C.P.C. exercised was proper and legal. The application is dismissed. We have gone through the various citations given in the abovequoted portion of the impugned order. The citations given by learned counsel of the appellant before learned Single Judge in support of his 12(2), C.P.C. application, just as his citations before this Court in support of the appeal, are only to the effect that clerical slips or omissions can be corrected under section 152, C.P.C. No doubt it is so but section 152, C.P.C. is not confined to catering for the correction of clerical slips or omissions and it also extends to accidental slip or accidental omission. We are in full agreement with the view of the learned Single Judge that it was a case of accidental omission. For the reasons noted above we would maintain the impugned order.

26. The appeal is accordingly dismissed on merits as well as for want of notice under Order 43, Rule 3, C.P.C. and also on the ground that order passed under section 12(2), C.P.C. is not appealable. A.A./A‑52/K Appeal dismissed.