2014 PLP 1295 (CLC)

NAZAR AKBAR, J.

Through this application learned counsel for the Decree-Holder seeks to amend the execution application, which was filed to satisfy the judgment dated 13-3-2004 and decree dated 30-3-2004 by the Hon'ble Division Bench of this court in Admiralty Appeal No.8 of 2003 whereby the judgment of the learned Single Bench was modified/altered. The order passed in admiralty appeal was challenged before Hon'ble Supreme Court by both the parties and ultimately the final judgment in the Admiralty Suit No.27 of 1999 was delivered on 9-5-2010 by the Hon'ble Supreme Court in Civil Appeal No.1446 of 2004 in the following terms:

In view of the foregoing discussion, Civil Appeals Nos.1444 and 1445 of 2004 are dismissed while Civil Appeals Nos.1446 and 1447 of 2004 are allowed. Consequently, we set aside the judgment and decree of the learned appellate Bench dated 30-3-2004 and restore that of the learned trial Bench dated 22-9-2003. The learned counsel for the Decree-Holder has sought amendment in the execution application which was filed in 2004 to incorporate the effect of Supreme Court judgment dated 9-5-2010 whereby according to the Decree-Holder his claim of principal amount has been increased. I have heard Mr. Shaiq Usmani, Advocate for the Decree-Holder and perused the record. It is an admitted position that the decree which is being sought to be satisfied through this execution application is not and cannot be treated to be in the field anymore after the judgment of the Hon'ble Supreme Court. Since the decree which is subject-matter of this execution application has been set aside by the Hon'ble Supreme Court, this Court cannot continue to prosecute the satisfaction of a decree based on an appellate judgment which is now nullity in the eyes of law. The other aspect of the case is that the date of judgment for the purpose of execution of decree in Suit No.27 of 1999 cannot be a date prior to the date of judgment which in the case in hand is Supreme Court judgment dated 9-5-2010, an ultimate judgment which has finally decided the controversy between the plaintiff/decree-holder and the defendant/ judgment-debtor in Suit in 27 of 1999. The provision of Order VI, Rule 17, C.P.C. are not applicable to the execution proceeding. Rule 17 of Order VI, C.P.C. is reproduced below for convenience to understand that why it is not applicable to the execution application.

17. Amendment of pleadings. The Court may at any stage of the proceedings allow either party to alter or amend his pleadings in such manner and on such terms as may be just, and all such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties. The underlined portion of the rule reproduced above clearly shows that the amendments shall be made for the purpose of determining the real questions in controversy between the parties. So after the judgment of the Hon'ble Supreme Court nothing is left to be considered as a pending controversy. Pleadings has been defined in Order VI, Rule 1 as follows:

1. Pleading shall mean plaint or written statement. The execution proceedings start on culmination of controversies between the parties on pronouncement of judicial orders commonly known as "decree". And section 2(2) of C.P.C. defines decree as:

S. 2(2) "decree" means the formal expression of an adjudication which, so far as regards the court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit. ...." But for this reason the contents of decree in terms of Order XX, Rule 6, C.P.C. are compulsorily required to "agree with the judgment". The purpose of referring to the provisions of subsection (2) of section 2 and Order XX, Rule 6 of C.P.C. is to appreciate what is a decree with relation to a judgment. The net result of this exercise is that the contents of execution application are not "pleading" as the applicant cannot write anything in the application from his own sweet will nor plead anything even if it was left undetermined by the court in the judgment. The execution application is a pro forma and it has to be filled by the applicant in accordance with the statement of decree which in itself is a "formal expression of adjudication". Therefore, neither the execution application can be treated as "pleading" nor courts are empowered to amend the contents of an execution application during the process of achieving the satisfaction of a decree. The execution application, on amendment if any, would not continue to be in conformity with the decree on court file. The authority of executing court is very limited. It cannot go beyond the decree. An order on an amended execution application would, unless the decree is also amended accordingly amount to going beyond the decree. Therefore the executing court has no authority to amend an execution application and pass orders on such amended execution application and ignore the decree. The power of court in terms of the provisions of Order VI, Rule 17 of C.P.C. is not available to the executing court. The conclusion of the above discussion is that the application for amendment in execution application is misconceived; it is, therefore, dismissed. The inescapable consequence of the above finding is that even execution application is liable to be dismissed since it has become infructuous on passing of the judgment dated 9-5-2010 by the Hon'ble Supreme Court in Civil Appeal No.1446 of 2004 whereby order in Admiralty Appeal No.8 of 2004 was set aside and original judgment and decree of Single Bench of this court dated 22-9-2009 in Suit No.27 of 1999 was restored. 2. In view of the above execution application is also dismissed along with the pending application. AG/S-3/Sindh Application dismissed.