2010 PLP 1462 (CLC)

JAMAL KHAN MANDOKHAIL, J.

Briefly stated facts of the case are that, a suit was filed by petitioners against respondents, which was decreed in favour of petitioners by means of judgement- and decree passed by Qazi Dasht, on 18-07-2009. Since no appeal has been filed, as such, it attained finality. The respondents have filed an application under section 152 of Civil Procedure Code for clarification of the relief granted to the decree-holder. The application was contested by petitioners/decree-holder alleging therein that the same is not in accordance with provisions of section 152 of C.P.C., as such requested for dismissal of the same. The trial Court, after hearing the parties, has accepted the application and ordered clarification of the decree by means of order dated 20-08-2009, hence this petition.

2. Learned counsel for petitioners submitted that the trial Court, after pronouncement of judgment and decree was seized to interfere in the decree. Since no clerical or arithmetical defect or error has been point out in the decree by the applicant, therefore, no amendment, alteration or clarification could be made. According to him, the trial Court has failed to consider such aspect of the case and has passed an order contrary to law.

3. Learned counsel for respondents has vehemently opposed the contention and has stated that the decree follows the judgment, therefore, the relief granted to any party should have been mentioned in it. Since the earlier decree was not exhaustive, as such, was not capable of execution, therefore, its clarification was sought, which was very much within jurisdiction of the trial Court in view of section of 152 of C.P.C.

4. I have heard learned counsel for the parties and perused the record. Before going to discuss the merits in detail, it would be appropriate to go through the definition of decree, as mentioned in sub clause (2) of section 2 of C.P.C., which is reproduced herein below: (2) "decree" means the formal expression of an adjudication which, so far as regards the Court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit and may be either preliminary or final. It shall be deemed to include the rejection of a plaint (the determination of any question within section 144, and an order under rules 60, 98, 99, 101 or 103 of Order XXI) but shall not include:-- (a) any adjudication from which an appeal lies as an appeal from order, or (b) any order of dismissal for default. Explanation.--A decree is preliminary when further proceedings have to be taken before the suit can be completely disposed of. It is final when such adjudication completely disposes of the suit. It may partly preliminary and partly final. Perusal of above definition shows that it is the decree, which is-to be executed and not the judgment. While passing a decree, there should be formal expression of the adjudication, it must be precised and deliberate. Moreover, as per Order XX Rule 6, C.P.C., the decree shall agree with the judgement and should contain particulars of the claim and also to specify clearly the relief granted. The decree and judgment are separate and distinct documents, it is a decree that has to be executed, and as such, it should agree with and be in accordance with the judgment, therefore, it should be self-contained and capable of execution, without reference to any other documents. Under section 152 of C.P.C., where the two documents do not agree, the Court can correct the decree and also has inherent power to bring them in consonance with each other. Thus, while exercising powers under section 152 of C.P.C., for correction/amendment in the decree, the Court has to gather material from the judgment. In present case, the trial Court, while deciding the issue of relief, has given explanation, but in decree, no explanation of the rights of the parties have been specified. Apparently, the decree before amendment/ clarification was not clear or was ambiguous, as such, was not executable. By making the necessary clarification in the decree in accordance with the above stated provisions of law, no illegality or irregularity has been committed by the trial Court. After clarification, the decree has now become absolutely in consonance with the judgment passed by the trial Court, therefore, the same has now become executable.

5. Thus, in view of what has been stated and discussed hereinabove, the petition, being meritless, is dismissed and the order impugned dated 18-7-2009, passed by Qazi, Dasht, is hereby upheld. H.B.T./79/Q Petition dismissed.