1989 PLP 3602 (MLD)

S. 114 &115--Review and revision--Question of fact--Where a question of fact needed proof for and against, it could not form basis for review. I. H. Zaidi for Petitioner. Nemo for Respondent (absent). Date of hearing: 11th December, 1988. This Civil Revision application is directed against the order dated 11-8 1983 passed by the IIIrd Senior Civil Judge, Karachi whereby he dismissed the execution application filed by the applicants. The facts leading to the filing of the above revision are that the applicants filed Suit No. 1350 of 1.977 for recovery of Rs. 29,450.88 against the respondent. The respondent admitted the claim in suit and prayed for the payment of the decretal amount in monthly instalments. It is not in dispute that a consent decree was passed on 6-10-1977 and the respondent was allowed to pay the decretal amount in monthly instalments of Rs.250 with interest thereon till satisfaction of the decretal amount. It is the case of the applicants that the respondent committed default and according to the decree, the amount due became payable in lump sum. The applicants filed Execution Application No. 10 of 1982. Notice was issued to the respondent but the respondent did not file any written objections to the execution but on the date of hearing, objections as to the merits of the decree were raised and the Senior Civil Judge considered those objections on merits of the decree and by the impugned order, dated 11-8-1983, dismissed the execution application. The applicants being aggrieved have filed the present revision application. I have heard Mr. I. H. Zaidi, Advocate appearing for the applicants. The respondent though served remained absent. It is well settled that a decree is executed, in the spirit of its terms and conditions and not in derogation to such terms. For the executing Court cannot go beyond what decree stands for, nor it can modify those terms or deviate from them in exercise of its power of execution of decree. The present case is to be tested by the aforesaid principle. In the instant case the applicants filed a suit for recovery of Rs. 29,450.98. The respondent did not file any written-statement. He did not contest the suit. A consent decree was passed and the respondent/judgment-debtor was allowed to pay the decretal amount in monthly instalments of Rs. 250 with interest thereon till satisfaction of the decretal amount. The consent decree was not challenged by the respondent. The respondent did not file any objections to the execution application. The plea was introduced in oral submission for the first time. It is a cardinal principle of law that where a question of fact needed proof for and against, it could not form basis for review. I am of the view that there was no justification for setting aside the For the aforesaid reasons, the revision is allowed and the impugned order dated 11-8-83 is set aside. The Execution Application is remanded to the learned Civil Judge for disposal in accordance with law in terms of the above order. In the circumstances of the case the parties shall bear their own costs. M.Y.H./A-558/K Revision allowed.