2016 PLP 90 (YLRN)

IBAD-UR-REHMAN LODHI, J.

This revision petition has been filed, challenging the findings of the learned Additional District Judge, Sheikhupura, who while deciding the appeal titled "Shamoon Babar, etc. v. Mst. Sardaran Akhtar, etc." on 21.04.2010 has proceeded to set aside the order passed by the learned Executing Court, Sheikhupura on 24.02.2009 whereby an application moved by the judgment-debtors under the provisions of section 47 read with section 151, C.P.C. was dismissed asserting the complete satisfaction of the decree by payment of the remaining instalments to the decree-holders outside the Court.

2. During pendency of an earlier appeal before the learned Additional District Judge, Sheikhupura the parties to the decree entered into a compromise which was presented in the appellate Court on 30.04.2002 and marked as Ex.C.1. In view of the terms of such compromise, it was agreed that Muhammad Hussain, etc. the judgment-debtors will pay Rs.7,50,000/- to Taufeeq Ahmad, decree holder/ predecessor-in-interest of the present petitioners in three equal instalments. First installment of Rs.2,25,000/- was paid in the Court whereas with regard to the remaining outstanding decreed amount, it was settled that further amount of Rs.2,75,000/- will be paid in the Month of August, 2002 whereas third and final installment of Rs.2,50,000/- was agreed to be paid on 30th December, 2002. Further terms were also agreed and consequences thereof were provided in case of failure on the part of the judgment-debtors to fulfill their agreed commitment. In order to provide some assistance to the judgment-debtors, the applicants of petition under section 47 read with section 151, C.P.C. attempted to resist the execution of decree with a further plea that the remaining two instalments have been satisfied by the judgment-debtors by making the payment outside the Court. The learned Executing Court was not agreeable both on legal and on factual plane, thus on 24.02.2009 application under section 47 read with section 151, C.P.C. was dismissed. Such dismissal was challenged by means of an appeal before the learned District Judge, Sheikhupura and the same was entrusted to learned Addl. District Judge, who vide impugned judgment 21.04.2010 allowed the appeal by setting aside the order dated 24.02.2009 and remanded the matter back to learned Executing Court for decision of the application under section 47 read with section 151, C.P.C. afresh after providing opportunity to the parties to produce their respective evidence.

3. In view of the provisions of Order XXI, Rule 1, C.P.C., modes of payment under decree have been provided which are reproduced herein below for ready reference:- "

1. Modes of paying money under decree.

(1) All money payable under a decree shall be paid as follows, namely: (a) into the Court whose duty it is to execute the decree; or (b) out of Court to the decree-holder [through a bank or by postal money order or evidenced by writing signed by the decree-holder or his authorized agent]; (c) otherwise as the Court which made the decree directs. (2) Where any payment is made under clause (a) of sub-rule (1), notice of such payment shall be given to the decree-holder." Whereas Rule 2(1) out of the said order provides that where any money payable under a decree of any kind is paid out of Court or the decree is otherwise adjusted in whole or in part to the satisfaction of the decree-holders, the decree-holders shall certify such payment or adjustment to the Court whose duty it is to execute the decree, and the Court shall record the same accordingly. Similarly Rule 2(2) provides same procedure in case judgment-debtor is to inform the Court of such payment or adjustment, and in that case the Court is to issue a notice to the decree-holders to show cause on a day to be fixed by the Court, why such payment or adjustment should not be recorded as certified; and if after service of such notice, the decree-holders fails to show cause why the payment or adjustment should not be recorded as certified, the Court shall record the same accordingly. Sub-Rule 3 is complete answer to the manner in which the first appellate Court has dealt with the matter which provides that any payment not made in the manner provided in Rule 1 or any adjustment not made in writing shall not be recognized by the Court executing the decree.

4. In the case in hand, neither the decree-holders nor judgment debtors ever approached the Executing Court informing any payment or adjustment of any decretal amount outside the Court and never prayed for any satisfaction as such. Even if any payment to the satisfaction of the decree is made out of Court that cannot be recognized in satisfaction of the decree.

5. When specific procedure has been provided in Order XXI, Rules 1 and 2, C.P.C. in case one side of the decree claims the payment of the decretal amount or part thereof as paid or adjusted out of Court, the same shall have to be certified in the manner provided in the said Rule and not otherwise. Thus the mode suggested by the learned first appellate Court while remanding the matter to the learned Executing Court is alien to the above provided procedure. No evidence other than an information either by the decree-holders or the judgment debtor and subsequent certification by the Executing Court is required to prove the payment of decretal amount out of Court. The impugned judgment passed by the learned Addl. District Judge, Sheikhupura on 21.04.2010 is thus not sustainable under the law, the same is therefore, set aside by accepting this revision petition.

6. I have noted that the decree in this case was passed on 24.02.2007, still awaiting its complete satisfaction, hence the learned Executing Court is expected to expedite the process of execution and try to conclude the same in complete satisfaction of the decree before start of summer vaction in the current year. ZC/S-17/L Revision allowed.