2022 PLP 1684 (CLC)

SULTAN TANVIR AHMAD, J.

Through this Petition filed under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973, Petitioner has assailed the order dated 06.10.2021 passed by learned Additional District Judge, Multan, whereby orders dated 14.07.2021 and 18.09.2021 passed by learned trial Court have been upheld and the Appeal has been dismissed.

2. Facts, necessary for the disposal of the present petition, are that on 29.04.2017 consolidated Judgment and Decree was passed by the learned Judge Family Court, Multan whereby following relief was granted to the Respondent No.3:- "

the suit of the plaintiff for recovery of dower is hereby partially decreed in a way that the claim of the plaintiff to the extent of 8-tolas gold ornaments is hereby refused while she is held entitled to get godown or its alternate i.e. Rs.30,00,000/- from the defendant. The suit of the plaintiff for recovery of dowry articles is hereby dismissed and the suit of the defendant for restitution of conjugal rights is hereby dismissed being infructuous".

3. During the pendency of the execution of the aforesaid Judgment and Decree, Petitioner filed objection petition, pleading that Rs.851,000/- has already been paid out of the Court, for the satisfaction of the decree and the matter has been settled. Respondent No. 3 contested the said objection while denying any payment for the satisfaction of the decree as well as any settlement out of the Court. This objection petition was rejected vide order dated 14.07.2021 by the learned executing Court while observing as follows:-

4. The aforementioned order as well as order dated 18.09.2021 whereby warrant of arrest of the Petitioner was issued, were assailed before the learned Appellate Court through the Civil Appeal dated 06.10.2021 and the said Civil Appeal was dismissed in limine. Aggrieved from the same present petition has been filed.

5. Ms. Sittara Naeem Abbas, learned counsel for the Petitioner has argued that orders dated 14.07.2021, 18.09.2021 and 06.10.2021 are against the law and the compromise between the parties before the arbitrator has been ignored. It is contended by the learned counsel for the Petitioner that the payment out of the Court is in accord with the Rule XXI (2) of the Civil Procedure Code, 1908 (the 'Code') and in this regard, the learned counsel for the Petitioner has relied upon the affidavits of Sheikh Muhammad Awais, Muhammad Khubaib Khan Khakwani and Muhammad Saleem dated 11.02.2021, 12.02.2021 and 11.02.2021, respectively as well as a receipt purportedly issued by Faisal Allah Ditta son of Shehzad Saleem, the brother of Respondent No.3.

6. Mr. Muhammad Asif Manzoor, Advocate, the learned counsel for the Respondent has opposed the present petition as well as denied accepting any out of Court payment or settlement and the execution of the aforesaid receipt by the brother of Respondent No.3.

7. It is settled law that the rights of the parties are crystallised on passing the decree by a competent Court. Unless the Appellate Court intervenes, decree attains finality and the executing Court cannot go behind this decree subject to very limited circumstances permissible under Section 47 of the Code. Nevertheless, this does not preclude the parties to enter into compromise or settle or make payment out of the Court, however, this has to be in accordance with Order XXI Rules 1 and 2 of the Code. Here it will be beneficial to reproduce the relevant provision of the Code with respect to the out of Court payment for the satisfaction of the decree:- Order XXI Rule (1). Modes of paying money under decree. - (1) All money payable under a decree shall be paid as follows, namely;-- (a) XXXXX (b) out of Court to the decree-holder 1[through a bank or by postal money order or evidenced by writing signed by the decree-holder or his authorized agent];or (c) otherwise as the Court which made the decree directs. 2 XXXXX Order XXI Rule (2). Payment out of Court to decree-holder.

(1) 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-holder, the decree-holder 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. (2). The judgment-debtor also may inform the Court of such payment or adjustment, and apply to the Court to issue a notice to the decree-holder 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-holder fails to show cause why the payment or adjustment should not be recorded as certified, the Court shall record the same accordingly. (3) 1[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.]

8. The aforesaid provisions are plainly worded and contain hardly any ambiguity. As per Order XXI Rule 1(b) of the Code, plea of out of Court payment is not acceptable unless payment is made through bank or by postal money-order or it is evidenced in writing and signed by the decree-holder or his duly authorized agent.

9. Rule 2(1) of Order XXI of the Code further clarifies that where the payment is made out of the Court, in whole or in part to the satisfaction of the decree-holder, the same has to be certified by the decree-holder. The judgment debtor can also apply to Court under Rule 2(2) of the Order XXI of the Code for recording of adjustment or payment made. Rule 2(3) of Order XXI of the Code contains the word shall making it obligatory, with express prohibition to accept contention of any out of Court payment which does not fulfil the criteria of Rule 2(1) or the adjustment which is not in writing. The said provisions, at the same time, have also imposed a duty upon the judgment-debtor to ensure securing the signed documents from no one else but the decree-holder or his properly authorised agent.

10. Combined reading of the above reproduced provisions does not leave a lurking doubt that plea of out of Court payment, if not supported by proof of payment through banking instrument, postal money-order or clearly evidenced in writing carrying signatures of the decree-holder or his authorised agent, the executing Court cannot accept such an out of Court payment, unless it is confirmed by the decree-holder to the executing Court. Order XXI, Rules 1 and 2 while requiring a decree to be satisfied before the Court or the payment through irrefutable instrument or supported by unquestionable evidence, contains clear wisdom to avoid another round of litigation with respect to the satisfaction of decree and multiplicity of litigation.

11. In this regard, Supreme Court of India in case titled "M.P. Shreevastava v. Mrs. Veena" (1967 AIR 1193) has observed as follows:- "Similarly an application under cl. (1) or cl. (2) of R.2, O.XXI for recording payment of money under or adjustment of a decree has to be made to the Court whose duty it is to execute the decree, whereas prohibition against recognition of an uncertified payment or adjustment is imposed upon the Court executing the decree by sub-rule (3). There is no doubt that the expression "Court whose duty it is to execute the decree" means a Court which is under the law competent to, and when requested bound to, execute the decree which is in law enforceable, and where an application is made under O. XXI, R. 1(1)(a) or under O.XXI, R.2 (1) or (2) there need be no substantive application for execution pending. It also appears, from the terms of cl. (3) of O. XXI, R.2, that the prohibition is against the Court executing the decree. (Emphasis supplied)

12. This Court in case titled "Muhammad Jamil and Others v. Haji Muhammad Din & Sons" (PLD 1995 Lahore 107) has also observed that any payment contrary to the Rule 1 or adjustment not in writing cannot be recognized by the executing Court. The relevant part of paragraph No. 06 of the judgment case titled "Muhammad Jamil" case (Supra) is as follows:- "

6. Any payment made in the manner not provided in rule 1 or adjustment not made in writing cannot be recognized by the executing Court. Now, in the present case, the first instalment was allegedly paid on 31-03-1992, but the appellants did not move the executing Court under rule 2 of Order XXI, C.P.C. It was only on 14-12-1992 after receiving notice in the execution proceedings initiated by the respondent, when the appellants proceeded to file the objection petition. The same was not competent". (Emphasis supplied)

13. The dicta laid down in above referred case and the law discussed above, setting-forth the basic and essential requirements to be establish that the decree has been satisfied out of the Court, takes this Court to examine the documents relied by the petitioner to show the payment and genuineness of his claim, which are as follows:- (i). Affidavit of Sheikh Muhammad Awais, dated 11.02.2021, (ii). Affidavit of Muhammad Khubaib Khan Khakwani, dated 12.02.2021. (iii). Affidavit of Muhammad Saleem, dated 11.02.2021 and, (iv). A receipt purportedly issued by Faisal Allah Ditta s/o Shehzad Saleem, the brother of Respondent No.3.

14. The aforementioned affidavits are given by the strangers to the lis or the decree in question. As far as the receipt is concerned, the same does not contain the signatures of the decree-holder and it is purportedly issued by the brother of the decree-holder, without any proof of the fact that he was recognized and authorised agent of the decree-holder. The signature, of the brother of the decree-holder, on the said receipt is, even otherwise, disputed and the Decree-holder has never certified the payment in the Court responsible to execute the decree. Such documents cannot satisfy the requirements laid down by Order XXI, Rules 1 and 2 of the Code.

15. Learned counsel for the Petitioner has miserably failed to convince this Court to exercise its jurisdiction under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973. The orders passed by learned Courts below contain no illegality or defect, hence the same are upheld and the present petition is dismissed, with no order as to costs. ZH/M-70/L Petition dismissed.