1994 PLP 638 (MLD)

23-4-1993

1. For hearing of C.MA. No.61 of 1989

2. For hearing of C MA No > >91 of 1992 1 and

2. These are the applications moved by the decree-holders seeking adjustment of the additional amount paid by them on account of increase in stamp duty and abolition of Gain Tax. The further adjustment is sought on account of costs of the suit and being price of brand new Tractor supplied by decree-holders to judgment-debtor No.1 Briefly the facts relevant for the purposes of these applications are that the Suit No.55 of 1982 filed by the decree-holders' against the judgment debtors for declaration, specific performance and permanent injunction was decreed ex parte vide judgment and decree dated 21-3-1983. It was ordered as under:

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1. It is hereby ordered and decreed that defendants to fulfil their contractual obligations and complete the transaction of sale by finally executing the conveyance deed dated 19-8-1979 relating thereto and getting the same registered in accordance with the existing laws in favour of the plaintiff No. l; on payment of Rs.202,163 (i.e. after giving adjustment of Rs.697,837 as the balance payable towards the sale consideration to the defendants." Consequently the Execution Application was presented on 14-4-1988 and in consequence thereof, it is stated by the learned counsel at the Bar that the said amount of Rs.202,163 was deposited in the Court and sale-deed has since been executed in their favour. I have heard Mr. Atish Mirza, the learned counsel for the decree holders. He has submitted that on account of delay in execution of sale-deed the present decree-holders have suffered loss as the law during this period had been amended and stamp duty has been enhanced. He has further argued that if the sale-deed was executed on the date when the suit was decreed, the decree-holders would have' to pay lesser stamp duty and also that the judgment-debtor would have to pay Gain tax but because in the year 1986 the Gain tax was abolished, the judgment-debtors are saved from the liability while the present decree-holders have been made to pay a higher amount of stamp duty. The point for consideration, therefore, would be as to who is liable for delay in execution of sale-deed. In the present case the Execution application has been presented in Court on 14-4-1988 i.e. five years thereafter and after the amendment of law as stated above. Mr. Atish Mirza learned counsel for the decree-holders has explained that the five years delay in filing the execution application was because the decree-holders had died and executors had to be appointed which took time. In these circumstances, the delay of these five years cannot be attributed to the judgment-debtors or Nazir of this Court but it was on account of the decree-holders that this delay took place. Therefore, the delay and its consequences cannot be allowed to be adjusted against 640 the judgment-debtors. As regards the other claim of the decree-holders that an amount of Rs.84,100 being the price of brand new tractor supplied by the decree-holders to the J.D. No.1 be also adjusted, it may be observed that in the prayer clause in the plaint no such adjustment has been sought by the decree-holder. Even if such fact is mentioned in the plaint, then also the above decree shows that no such adjustment was allowed by the Court passing the decree. Thus, the adjustment if allowed by this Court in the execution application would amount to varying the decree which is not permissible under section 47, C.P.C. Under section 47, C.P.C. the executing Court cannot go behind the decree except in case where the plea the lack of jurisdiction or illegality in decree is taken. No such ground is pleaded by decree-holders in this case. Mr. Atish Mirza, learned counsel for the decree-holders has placed reliance on the A cases of Haji Abdul Wali Khan v. Muhammad Hanif 1991 SCMR 2457 and Mst. Amina Begum and others v. Mir Ghulam Dastgir PLD 1978 SC

220. I have gone through the abovesaid cases and in my opinion the findings of these cases have no application to the present case. In these circumstances, I find no force in the present applications which are accordingly dismissed. AA./F-223/K Applications dismissed.