1990 PLP 835 (SCMR)

ABDUL SHAKURUL SALAM, J.‑‑‑In a suit for recovery of dowery filed by the respondent a consent decree was passed on 23‑2‑1985. In execution proceedings, it was agreed to by the parties that either 25 tolas of gold as decreed or its price, amounting to Rs.60,000 shall be paid by the petitioner to the respondent. Warrant of attachment was issued against the petitioner. The latter filed an objection petition on 25‑12‑1987 urging that he had delivered a cheque of Rs.60,000 to the respondent and the latter has encashed it and received this amount from the Bank, hence the decree stands satisfied. The application was contested by the respondent who denied having received any cheque or the amount. The executing Court framed the following issues: "(1) Whether the judgment‑debtor has paid a sum of Rs.60,000 to the decree holder? (2) Whether the application is liable to be dismissed? (3) Relief." On the basis of the evidence produced by the parties, the learned executing Court found that the petitioner had failed to prove the issue regarding the payment. The objection petition was accordingly dismissed. This is vide order of the learned trial Judge dated 6‑7‑1989. The petitioner filed a revision petition and after reappraisal of the evidence, the learned Additional District Judge, Muzaffargarh in his order dated 18‑10‑1989 came to the conclusion that the petitioner has not been able to prove that he had paid the amount to the respondent. He also upheld the contention of the learned counsel for the respondent that the revision petition was not competent. The petitioner challenged these orders through Constitutional Petition W.P.No.2427 of 1989. A learned Single Judge of the Lahore High Court, Lahore held that "the two Courts below have come to a definite finding that the present petitioner had not been able to prove payment of the amount in question, as claimed by him, to his wife Mst.Riaz Elahi, respondent. This concurrent finding of fact is based on material which was available on record and which was examined, scrutinized and considered by the two Courts below". He declined to interfere. This is vide order dated 27‑11‑1989. The petitioner seeks leave to appeal against the order of the learned High Court. The contention of the learned counsel for the petitioner is that the petitioner had paid a sum of Rs.60,000 as agreed to by him through a cheque which was encashed by the respondent. With the assistance of the learned counsel for the petitioner we have gone through the evidence recorded by the learned executing Court in this behalf. There is no evidence regarding the delivery of the cheque to the respondent nor it has been proved that the cheque was encashed by the respondent. The learned executing Court has come to the definite finding that it was. not proved that payment has been made by the petitioner. The learned Additional District Judge after re‑appraisal of evidence affirmed the finding of the executing Court, notwithstanding that he found the revision petition to be incompetent. The learned single Judge declined to interfere in the finding of fact recorded by the two Courts in exercise of Constitutional jurisdiction. No case is made out for leave to appeal. The petition is, therefore, dismissed. AA./B‑155/S Appeal dismissed.