1992 PLP 1699 (CLC)

‑‑‑‑S. 47‑‑‑Execution of decree‑‑‑Objection to‑‑‑Judgment‑debtors were permitted to defend suit on furnishing security for decretal amount, but they failed to furnish same‑‑‑Judgment‑debtors in their objection applications had contended that property attached in execution of decree which was very valuable according to valuation certificate obtained from Architect should be considered as good security‑‑‑Treating attached property as security was always a risky business if two decrees of heavy amount were already under execution against judgment‑debtors, while another one was also pending execution‑‑ Property attached in execution was already mortgaged with a Bank‑‑‑Offer of judgment‑debtors that property should be considered as good security, in circumstances was meaningless and hollow‑‑‑In absence of security, objections of judgment debtors, could not be entertained. M/s. Bank of Oman Limited v. M/s. East Trading Company Limited PLD 1987 Kar. 404; Irshad H. Khan v. Mrs. Perveen Aijaz PLD 1987 Kar. 466; Haji Subhan v. Madhore AIR 1962 SC 1230; P.R. Rajoo v. Ramnama and others, AIR 1952 Mad. 540 and N.K. Kalota v. R.N. Rao AIR 1962 Madh. Pra. 318 ref. Karam Ali for the Decree‑holder. Akhtar Mehmood for the Judgment‑debtors, This order shall dispose of C.M.A. No. 167/91, C.M.A. No. 168/91 and objections under section 47, C.P.C. filed by the Judgment‑Debtor.

2. Property No‑55, Block‑3/7 and 8 a Darul Aman Cooperative Housing Society, Karachi, belonging to the judgment‑debtors is under attachment and in the process of being sold in satisfaction of the decree. 1n C.M.A. No.167/91 the contention raised by the Judgment‑Debtors is that the Decree‑Holder was allowed 14%n interest on the decretal amount from the date of the filing of the suit (6‑4‑1981) till the date of realisation of the decretal amount but the recovery of interest is un‑Islamic and therefore execution of decree should le stayed till the objections filed under section 47,' C.P.C. are disposed of. In C.M.A. No. 168/91 it is stated by the Judgment‑Debtors that as per Valuatiau Certificate dated 9‑12‑1990 obtained by the Judgment‑Debtors from M/s Gandhara Consultants Architects, the value of Property Nos.54 and 55, Darul Aman Cooperative Housing Society, Karachi, is Rs.1,03,97,600 which is more than enough to cover the principal decretal amount in both Execution applications Nos.43/86 and 47/87 and that the Judgment‑Debtors are also ready to furnish security for the payment of decretal amount in both the Execution applications and therefore the objections under section 47, C.P.C. earlier dismissed vide order dated 6‑12‑1990 may be decided on merits after due hearing. In objections filed under section 47, C.P.C., the Judgment Debtors state that their property earlier attached in the Execution of two decrees is in the process of being sold but after the insertion of Article 2‑A in the Constitution of the Country objective resolution has become an integral and substantive part of the Constitution and therefore interest can no more be recovered from the Judgment‑Debtors. The Judgment‑Debtors therefore contend that interest may not be recovered in execution of the decrees and they further stated that they are willing to pay the principal suit amount of Rs.16,10,(XX) provided sufficient time is allowed to them. Both the applications and the objections tiled under section 47, C.P.C. have been contested by the Decree‑Holders.

3. Learned counsel of the Judgment‑Debtors referred to para‑3 of the plaint in Suit No.267/81 (Execution No.43 of 1986) in which the plaintiff/Decree‑holder had herself stated that the principal amount was an interest‑free friendly loan and he argued that in view of this position, learned Trial Court should not have awarded interest. He further argued that although Article 2‑A of the Constitution was incorporated in the Constitution after. the dates of the decrees in the suit but nevertheless the change in the law could not he ignored by the Courts and therefore the Judgment‑Debtors were entitled to be benefited from Article 2‑A of the Constitution. He relied upon the judgments of M/s Bank of Oman Limited M/s. East Trading Company Limited (PLD 1987 Kar. 404), Irshad H. Khan v. Mrs. Perveen Aijaz (PLO 1987 Kar. 466), Haji Subban v. Madhore (AIR 1962 SC 1230), P.R. RaJoo v. Ramnama and others (AIR 1952 Mad. 540) and N.K. Kalota v. R.N. Rao (AIR 1902 Madhia Pradesh 318). On the other hand, learned counsel for the Decree‑Holders pointed out that similar applications and objections moved by the Judgment‑Debtors had been earlier dismissed vide order dated 6‑12‑199() and the Judgment‑Debtors cannot be suffered to repeat the same contentions all over again. It was further argued by the learned counsel for the Decree Holder that the Judgment‑Debtors were permitted to defend the suit on furnishing security for the decretal amount but they failed to furnish security and therefore could not raise such objections in the execution proceedings.

4. C.MA. No. 2280/90 is the previous application of the Judgment Debtors with which the Judgment‑Debtors had earlier filed their objections under section 47, C.P.C. and I find that learned counsel for the Decree Holder is correct in saying that these objections are exactly the same as those now raised by the Judgment‑Debtors before this Court in C.MA. No. 167/91 and C.M.A. No. 168/91 and in fresh objections under section 47, C.P.C. All these applications and objections are therefore liable to be dismissed on the principle of res judicata. A perusal of the order dated 6‑12‑1990 shows that the earlier objections were dismissed on the ground that they could not be entertained until the Judgment‑Debtors deposited the decretal amount or furnished the security for the same. The contention of learned counsel of the Judgment Debtors, now raised before the Court, that the attached property should be considered as security for the decretal amount, was rejected by this Court while dismissing the earlier similar applications and objections of the Judgment Debtors vide order dated 6‑12‑1990. In view of this position the present application and objections are not maintainable and are liable to dismissal. I am satisfied that the Judgment‑Debtors are merely trying to prolong and protract the execution proceedings for as long as they can; otherwise, they would not have repeated these applications and would have gone in appeal against the order dated 6th December, 1990.

5. Even on merits, I am of the view that these applications and objections arc not maintainable. In effect, the Judgment‑Debtors have not even offered to furnish security for the decretal amount. All that they say is that the property attached in execution of the decree should be considered as good security in view of the Valuation Certificate obtained from an Architect. Treating the attached property as security is always a risky business and, so far as this case is concerned, the position is that there arc already two decrees under execution against the Judgment‑Debtors, the value of which is Rs.77,80,

946. Further interest must also be accruing on decretal amount and, besides, it is stated that yet another decree is also pending execution against the Judgment‑Debtors and the property is already mortgaged with a bank, as observed by this Court in its order dated 6‑12‑1990. As such, the offer of security is meaningless and hollow and in the absence of security the objections of the Judgment‑Debtors cannot be entertained. l have gone through the judgments cited by the learned counsel for the Judgment‑Debtors but would not refer to them in any detail I because their relevancy would only arise after the Judgment‑Debtors either deposit in Court the decretal amount (the principle as well as interest) or else furnish security for the payment of the dccretal amount to the satisfaction of the Court. Only after that the Judgment‑Debtors can derive any benefit from these judgments. 6. 1 would, therefore, reject C.MA. No.167/91, C.MA. No.168/91 and the objections under section 47, C.P.C. H.B.T./H‑293/K Applications and objections rejected.