1999 PLP 787 (CLC)

On 18‑12‑1996, an application under section 47, C.P.C. (C.M.A. No.230 of 1996) was filed in the execution proceedings. Said application was dismissed by learned Single Judge of this Court by an order, dated 5‑12‑1996, which has been impugned in Appeal No. 12 of 1997. The appellant on 22‑2‑1997 filed another application, under section 12(2), C.P.C. for setting aside the judgment and decree, dated 27‑8‑1989 and said application was dismissed by learned Single Judge of this Court by order, dated 3‑4‑1997, which has been impugned in Appeal No. 147 of 1997. It appears that before disposal of C.M.A. No.230 of 1996 under section 47 read with section 151, C.P.C., the evidence of judgment‑debtor Munawar Hussain Shah acid his witness Muhammad Yousaf Paracha and decree holder Muhammad Nasim Paracha, was recorded. Learned Single Judge in the order, dated 5‑12‑1996 observed that the judgment‑debtor failed to substantiate the plea that decretal amount was paid to decree‑holder either in satisfaction of the decree for towards payment of amount of the cheque on the basis of which the suit was filed. He also observed that the decree did not seem to have been obtained by practising fraud or misrepresentation and that the evidence of decree‑holder on the face of it was sufficient to demolish the case set up after a lapse of more than six years alleging that decretal amount was already paid. Learned Single Judge, while dismissing application under section 12(2), C.P.C., observed that if a plea specifically raised by a party stood disproved in proceedings under section 47, C.P.C. it could not be re‑agitated in proceedings under section 12(2), C.P.C., as the contrary view would militate against the theory of finality of proceedings. For this purpose, reliance was placed on the case reported as Mobina Begum v. Joint Secretary, Ministry of Religious Affairs 1994 MLD 1441. Mr. A. Rauf, learned counsel for the appellant strenuously argued that the respondent had received a sum of Rs.2,00,000 in August, 1989 from one Muhammad Yousaf Paracha, who owed a sum of Rs.4,00,197 to the appellant as balance consideration of two Plots bearing Nos. 182 and 183, Sector 23, Korangi, Karachi. Further, it is said that said Muhammad Yousuf Paracha had paid said amount to the respondent, under instructions of one Nazir Ali, in full and final settlement for his claim of Rs.3,00,

000. Learned counsel also argued that, despite having received said amount, the respondent had pressed his claim through misrepresentation and concealment of facts and had recovered decretal amount under threat of sale of the appellant's property. He also contended that the testimony of the appellant, the respondent and said Muhammad Yousuf Paracha, recorded in Execution Proceedings No. 128 of 1989, had clearly established that the respondent had misrepresented the facts and obtained decree by way of fraud. Abovementioned impugned orders have been passed by two different learned Judges of this Court on original side and both have discarded the plea that an amount of Rs.2,00,000 was paid to the respondent in connection with this matter. We also hold the same view. It is an admitted fact that the appellant had not preferred appeal against judgment and decree, dated 27th August, 1989. It is true that Executing Court is competent to determine the true intent of decree, but a decree is always to be executed in consonance of it vital principles, its terms and conditions, the points agitated and findings recorded thereon, and not on the basis of new pleas. It is now settled proposition of law that the Executing Court cannot go beyond the decree. It being so, the merits of the case again could not be challenged in execution proceedings. It is significant to note that although the appellant has claimed that aforesaid amount was paid on his behalf to the respondent during pendency of the suit, but this fact was never brought to the notice of trial Court. Mr. A. Rauf, learned counsel for the appellant also argued that since the suit was of Rs.3,00,000 this Court had no jurisdiction to proceed with the matter and also with the execution proceedings and the same ought to have been transferred to the District Court, Karachi. Learned counsel also argued that even the consent of the parties could not confer jurisdiction on this Court. He contended that learned Judges, while passing the aforesaid two impugned orders, had totally ignored the law on the subject. By virtue of Ordinance VI of 1981, the original jurisdiction in civil suits and proceedings of the value exceeding one lac of rupees vested in the High Court. According to Act No.III of 1992 the original jurisdiction in civil suits and proceedings of the value exceeding five lac of rupees was to be exercised by the High Court. On 3‑10‑1988 the suit was rightly filed before the High Court as up to that time the jurisdiction of District Courts at Karachi was only up to one lac of rupees. The suit was decreed on 23‑8‑1989 and the execution application was filed on 23‑10‑1989. Up to. A that period of time, the proceedings were within the exclusive jurisdiction of High Court. By virtue of Sindh Act No.XI of 1996, which was published in the Gazette of Sindh (Extraordinary), dated 24‑4‑1996, in the Sindh Civil Courts Ordinance, 1962, in section 7 for the proviso, the following was substituted:‑‑ "Provided that the civil suits and proceedings of the value not exceeding five lacs of rupees in respect of the Districts of Karachi pending in the High Court immediately before the commencement of the Sindh Civil Courts (Amendment) Ordinance, 1991 shall stand transferred to the concerned District Courts of Karachi for disposal. " In spite of above, the High Court had the jurisdiction to decide the matter on merits. Besides, no such plea was taken before learned Judges of this I 8 Court on original side, nor there was any failure of justice. Mr. S. Amjad Hussain, learned counsel for the respondent submitted that these appeals have become infructuous, as the respondent, by virtue of order, dated 5‑12‑1996, had already withdrawn the amount of Rs.3,07,428, which was deposited in this Court towards satisfaction of the decretal amount. This is another circumstance which does not allow any interference in the impugned orders. There is no merit in these appeals. On 8‑10‑1998, after hearing learned counsel for the parties, we had Ic dismissed these appeals in limine and these are the reasons for the same. Q.M.H./M‑390/K Appeals dismissed.