2007 PLP 2816 (YLR)

JAWWAD S. KHAWAJA, J.--The respondent-decree-holder, namely, Haji Muhammad Ashraf obtained a decree, dated 1-4-1998 for recovery of Rs.74,850 against the petitioner-judgment-debtor. He filed an execution petition but the same was dismissed as withdrawn based on a statement on 3-10-2000 made by the respondent-decree-holder to the following effect:--

2. Thereafter, the respondent-decree holder filed an application on 12-9-2003 i.e. almost three years after the dismissal of his earlier execution petition, seeking restoration of the same. The case set up by him was that the parties had approached a Punchait which had determined that the petitioner-judgment-debtor should satisfy the decree in instalments of Rs.2,000 per month. It was alleged in the application that the petitioner paid the instalments for a period of one year and thereafter no further payment was made. The respondent also relied on an agreement (Mark "A") which was executed between him and the son of the petitioner, namely, Sajjad. The learned executing Court dismissed the restoration application on the ground that the decree had been satisfied. The respondent preferred an appeal against the dismissal of his application, which has been allowed by the learned Additional District Judge vide order, dated 5-6-2006. At this point, it may be noted that the learned Appellate Court framed the following issues in order to resolve the factual controversy between the parties:-- (1) Whether the decree dated 1-4-1998 has been fully satisfied during pendency of previous execution petition? OPP (2) Whether second execution petition is time-barred? OPR (3) Relief.

3. In respect of issue No.2, it was held that the second petition was within time. Issue No.1, therefore, is the crucial issue. The learned Appellate Court, relied on the agreement (Mark "A") to hold that the petitioner had not satisfied the decree.

4. Learned counsel for the petitioner has argued, firstly, that the statement made by the respondent-decree-holder on 3-10-2000 is itself abundantly clear that the respondent's decree had been fully satisfied because the categorically stated that there was no necessity for any further proceedings against the petitioner.

5. Secondly, it was contended that the conduct of the respondent-decree-holder was, by itself, sufficient to justify the conclusion that the decree had been satisfied. In support of this submission, learned counsel for the petitioner adverted to the fact that although the earlier execution petition filed by the respondent had been dismissed on 3-10-2000, the petition for restoration of the same was moved three years later on 12-9-2003. According to learned counsel, there is no explanation on the record to justify the inordinate delay in filing the restoration application. The inference, which learned counsel seeks to draw from this delay, is that the respondent had no outstanding claim against the petitioner.

6. In addition to the above, learned counsel for the petitioner drew the attention of the Court to the note made by the learned Executing Court at the end of the testimony of the respondent when he appeared as A. W.1. In this note, it has been recorded that the respondent-decree holder offered a special oath to the petitioner to the effect that if the petitioner - swears on the Holly Qur'an that he has satisfied the decree and the document (Mark "A") was a forgery the restoration application be dismissed. The learned Court has also noted that the petitioner accepted this offer but at that point the respondent resiled from the offer. Learned counsel for the petitioner argued that this was also conduct showing the falsity of the plea set up by the respondent-decree holder.

7. There is yet another aspect of the case. Learned counsel for the respondent decree-holder placed reliance on an agreement dated 30-9-2000 which has been placed on record as Mark "A" by the learned trial Court. It was contended on behalf of the respondent that the petitioner had not complied with the aforesaid agreement and, therefore, the respondent was entitled to execution of the decree, dated 1-4-1998. This contention is misconceived. Even if it is accepted that the agreement (Mark "A") was entered into by the petitioner, this will not help the respondent-decree-holder. The said agreement could, at most be treated as t satisfaction of the aforesaid decree. It may well be that the agreement furnishes a fresh cause of action to the respondent. If so, the respondent would have to enforce the agreement through a suit and not by means of execution proceedings.

8. The learned Appellate Court has not taken note of the above circumstances and nor has it met the reasoning of the learned Executing Court. In the foregoing, this petition is allowed and the impugned I appellate order dated 5-6-2006 is set aside. F.B./M-236/L Petition allowed.