1999 PLP 2825 (MLD)

This is an Execution Application filed for execution of decree, dated 18-2-1966 passed by this Court and finally affirmed by the Hon'ble Supreme Court on 23-1-1989 in Civil Appeal No.53-K of 1977 (Asian Associated Agencies v. Government of Pakistan).

2. The facts leading to the present application are that on 21-12-1964, an award was passed in favour of the plaintiff which was made Rule of the Court in Suit No.97 of 1965 and a decree followed as noted hereinabove. The decree was in two amounts, one for US $ 15,500 and the other for US $ 34,100, the total amount of decree coming to US $ 49,

600. In addition to this amount, Rs.5,000 were also awarded in favour of the plaintiff/decree-holder by way of damages/compensation which amount, as admitted by Mr. S.A. Samad Khan, has been paid. In column 7 of the Execution Application, the decree-holder has finally adjudged the amount of the outstanding against the judgment-debtor, with 10% interest per annum from 6-4-1966 and has also claimed a sum of Rs.259,760 as interest per day till filing of the execution application. In addition to that, the decree-holder has also filed an application under Order XXI, Rule 17 read with section 151, C.P.C. (C.M.A. 1471 of 1998) seeking amendment in the execution application to the extent that the equivalence of the dollar against, Pak. rupees may be calculated at Rs.60 per dollar instead of Rs.22 as initially claimed. He has also prayed for amending other figures in rupees as mentioned in the execution application due to increase in the value of the US dollar.

3. I have heard Mr. S.A. Samad Khan, Advocate for decree-holder. Nobody has appeared on behalf of judgment-debtor since morning, despite the fact that this case was called twice and was kept aside for non-appearance of the judgment-debtor. In support of his contention that the decree-holder is entitled to payment of decretal amount in US dollars, Mr. S.A. Samad has referred to Article 3 of the Foreign Currency Loans (Rate of Exchange) Order 1982 (PLD 1982 CS 154) and to the case of Terni S.P.A. v. P.E.C.O. Ltd. (1992 SCMR 2238). He has also argued that this Court is competent to award interest, for the sake of justice and has again placed reliance on para. 31 of the case of Terni S.P.A. (ibid). It would be advantageous if section 3 of the Foreign Currency Loans (Rate of Exchange) Order, 1982 is considered and reproduced which reads as follows:-- "(3) Rate of exchange a ann1icable to foreign currency loans

For the removal of doubts, it is hereby declared that, notwithstanding anything contained in any other law for the time being in force, the judgment, or any Court or any agreement, contract or other instrument, the rate of exchange, for the purpose of conversion into Pakistan currency for repayment in respect of an outstanding foreign currency loan or any part thereof or interest in respect is thereof payable to a financial institution on the day of commencement of this Order shall be, and shall be deemed at all material times to have been, the rate of exchange in, force under section 23 of the State Bank of Pakistan Act; 1956 (XXXII of 1956), on the day on which the loan, part or interest is actually repaid or paid to the financial institution; and all parties by whom the loan, part or interest is repayable or payable shall make the repayment or payment accordingly. "

4. The above provisions was referred by the Hon'ble Supreme Court in the case of Term S.P.A. (Supra) where at page 2255, it was observed that this Order, 1982 was enacted in Pakistan while recognizing the rule aid down by the House of Lords in the case of Miliangos v. Geroge Frank (Textiles) Ltd. (1975) 3 All. E.R. 801). It was further observed by the Hon'ble Supreme Court that justice demands that the creditor should not suffer from fluctuations in the value of the Pakistani rupee and that if his contract is for a foreign currency and such plaintiff has bargained for the same, he should get that currency and not any other. It was further held that where the decree is in terms of foreign currency, it would give the judgment debtor the option to make payment either in foreign currency or in Pak rupees and execution can always be taken out by the decree holder if no payment is made by the judgment debtor in respect of so many rupees as equal to the foreign currency at the rate of exchange prevalent on the date the payment is made. A further note of caution was recorded that if any restrictive law or regulation covering foreign currency is introduced subsequently, then the rule laid down by the Supreme Court would be subject to or stand modified by the said law or regulations. In this respect, it is stated at bar by Mr. S.A. Samad Khan that no law or any regulation has been issued by the Federal Government recalling/superseding the Order, 1982.

5. The original decree in the instant suit is in US Dollars which was confirmed by the Hon'ble Supreme Court keeping in view that aforementioned law. The decree-holder is entitled for the decretal amount of US $49,600 or equivalent Pak rupees at the rate prevailing on the date of payment by the judgment-debtor. At present, it is claimed by Mr. S.A. Samad Khan that the prevailing rate is Rs.56 per US Dollar. If it is so, the decree-holder shall be 11 entitled for either a sum of US $49,600 or equivalent to the exchange rate fixed by the State Bank of Pakistan.

6. In so far as the question of interest is concerned, it was held by the Hon'ble Supreme Court in the case of Term S.P.A. (supra) (at para. 31) that section 34, C.P.C. allows that grant of interest from the date of institution of the. suit till the date of decree and section 34-B, C.P.C. allows the grant of interest from the date of decree to the date of payment or up to such earlier date as the Court thinks fit and that section 34 confers a general discretion on the Court to allow interest where it considers the same fair, just and proper in the circumstances of the case. Case State of Madhya Pradesh and others v. Messrs Nathabhai Desaibhai Patel (AIR 1972 SC 1545) was referred. It was argued by Mr. S.A. Samad that the present Court being a Court of law is competent to award interest for the sake of justice even at this stage. With regret, I would like to say that I am not impressed by such arguments. In the first instance the word Court used in sections 34 and 34-B, C.P.C. refer to the Court of first instance or an appellate Court and not to the executing Court. This Court while passing judgment declined to award interest to the decree-holder but, at the same time, Rs.5,000 was awarded as cost/damages. The presumption arising from such facts proves that interest was disallowed to the decree-holder. This decree went up to the Hon'ble Supreme Court which confirmed the decree, dated 28-2-1996. At this stage, an executing Court cannot go beyond the terms of decree which were settled till the level of Hon'ble Supreme Court. If any reference is needed, please see Kazi Abdul Kader v. The East Pakistan Provincial Cooperative Bank Ltd. (1969 SCMR 275) and Jalaldin v. Saif Ali and 2 others (1986 CLC 2972). An executing Court is bound to execute the decree in its original form unless and until it is shown by a judgment debtor that the decree passed was nullity in Law and without jurisdiction. (See Muhammad Ali and another v. Ghulam Sarwar and others (1989 SCMR 640). But an executing Court is not competent to award interest when the trial Court and the appellate Court have declined to award the same. (See Syed Ghulam Abbas and others v. Mst. Khurshid Begum (1980 CLC 1636)).

7. As a result of the above discussion, this execution application is entitled to be granted. It is stated by Mr. S.A. Samad that present execution proceeding is pending for last nine years. The judgment-debtor has not filed any objection to the same. Compliance of section 82 of the Code of Civil Procedure Code, 1908, had already been made. In this view of the matter, this execution application is granted as prayed. The State Bank of Pakistan is directed to attach from the account of the judgment-debtor an amount in Pak rupees equivalent to the U.S. $600 at the rate prevailing on the day when such attachment is being done. The State Bank of Pakistan is further directed to submit its report within one month from the date of receipt of this order. Q.M.H./A-28/K Application allowed.