P L D 2009 Islamabad 50 (PLP)

MUHAMMAD MUNIR PERACHA, J.

The, decree holder filed a suit in the court of Civil Judge, Islamabad against the judgment debtor-Capital Development Authority. The suit, was dismissed by the trial Court vide judgment and decree dated 29-7-2006. The decree holder challenged the above said decree before this Court through R.F.A. No.86/06. A learned Division Bench of this Court allowed the Regular First appeal and set aside the judgment and decree of the trial Judge. Through this application, the decree holder has prayed for execution of the decree passed by the Division Bench of this Court.

2. A notice was issued to the judgment debtors. In response to the notice, Mian Muhammad Hanif, Advocate appeared and objected to the jurisdiction of this Court. The learned counsel submits that section 38 of the C.P.C. provides that a decree can either be executed by the Court, which passed it or by the Court to which it is sent for execution. With reference to section 37 of the Code, the learned counsel contends that the phrase "court which passed a decree" means the court of first instance. According to the learned counsel, the execution application has to be filed before the trial Court, relies on the cases of "Ardeshir Cowasjhee v. Byram D. Avari and 4 others (1984 CLC 2494)" and Muhammad Asar Hussain v. Karachi Development Authority, Karachi and another 1999 CLC 1121".

3. On the other hand, the view point of the learned counsel for the decree holder is that the word "include" would show that the court of first instance is also a "court which passed a decree". According to the learned counsel, the Appellate Court which actually passed the decree is not excluded from the definition of the phrase "Court which passed a decree". It is submitted by the learned counsel that the Appellate Court in case the decree is actually passed by it, can also execute a decree apart from the court of first instance. The learned counsel relies on the following judgment:-- (1) Mehreen Zaibun Nisa v. Land Commissioner, Multan and others PLD 1975 SC 397. (2) Siraj Din and 3 others v. Sardar Khan and 2 others 1993 SCMR 745. (3) Mayzone Pak. International v. Additional Secretary, Government of Pakistan 2002 CLC 388. (4) Mst. Fehmida Begum v. Federation of Pakistan through Secretary, Federal Secretariat, Islamabad and 6 others PLD 2000 Lah. 602. (5) Muhammad Hussian v. Messrs Adamjee Sheikh Jeevanjee and another 2001 MLD 1183. (6) Jang Bahadar and others v. Toti Khan and another 2007 SCMR 497. (7) Muhammad Hayat and others v. Muhammad Said PLD 1950 Lah. 352. (8) Khan Muhammad Ishaq Khan v. The Azad Sharma Transport Co. Ltd. and others PLD 1953 Lah. 22. (9) Messrs United Bank Ltd. v. Mst. Rehana Raza PLD 1983 Kar. 467. (10) Zubair Ahmad and another v. Shahid Mirza and 3 others 2006 YLR 1900. (11) Maulvi Abdul Qayyum v. Syed Ali Asghar Shah and 5 others 1992 SCMR 241. (12) Nizam-ud-Din and 11 others v. Ch. Muhammad Saeed and another 1993 CLC 2130. (13) Mehar Singh and another v. Kasturi Ram and other AIR 1962 Punjab 394) (V 49 C 108). (14) Merla Ramanna v. Nallaparaju and others PLD 1956 Supreme Court (Ind.) 220. (15) Merla Ramanna v. Nallaparaju and others (AIR 1956 Supreme Court 87 (V.48 C. 21 Jan.). (16) Ramagouda Malagouda Patil and others v. Bhajarang Tukaram Bhoja and others 2003 AIR Karantaka 154. (17) Sreenath Chakravarti and others .v Priyanath Bandopadhya and others AIR 1931 Calcutta 312. (18) Sri Rajah Satrucherla Sivakanda Raju Bahadur Garu v. Rajah of, Jeypore and others (AIR 1927 Mad. 627.

4. Sections 37, 38 and 39, C.P.C. are reproduced hereunder:-- Section

37. Definition of court which passed a decree.--The expression "Court which passed a decree," or words to that effect, shall, in relation to the execution of decrees, unless there is anything repugnant in the subject or context, be deemed to include:

(a) Where the decree to be executed has been passed in the exercise of appellate jurisdiction, the Court of first instance, and (b) Where the court of first instance has ceased to exist or to have jurisdiction to execute it, the court .which, if the suit wherein the decree was passed was instituted at the time of making the application for the execution of the decree, would have jurisdiction to try such suit. Section

38. Court by which decree may be executed.

A decree may be executed either by the Court which passed it, or by the Court to which it is sent for execution. Section

39. Transfer of decree.--(1) The Court which passed a decree may, on the application of the decree-holder, send it for execution to another Court, (a) if the person against whom the decree is passed actually and voluntarily resides or carries on business, or personally works for gain, within the local limits of the jurisdiction of such other Court, or (b) if such person has no property within the local limits of the jurisdiction of the court which passed the decree sufficient to satisfy such decree and has property within the local limits for the jurisdiction of such other court, or (c) if the decree directs the sale or delivery of immovable property situate outside the local limits of the jurisdiction of the court which passed it, or (d) if the Court which passed the decree considers for any other reasons, which it shall record in writing, that the decree should be executed by such other court. (2) The Court which passed a decree may of its own motion send it for execution to any subordinate Court of competent jurisdiction.

5. It was held by the Hon'ble Supreme Court in case reported as PLD 1975 SC 397:-- "When a statute contemplates that a state of affairs should be deemed to have existed, it clearly proceeds on the assumption that in fact it did not exist at the relevant time but by a legal fiction we are to assume as if it exist. Similarly in case reported as 1993 SCMR 745, the Supreme Court ruled out:-- "The expression "deem" is commonly used to create legal fiction and introduce an artificial conception. Speaking generally when legislature commands that a language is to be deemed to be something, obvious conclusion is that in reality it is not that thing, what the legislature requires it to be treated. It is settled rule that the court is entitled to ascertain the object for which the legal fiction is created and confined to the purposes for which it is meant. It appears to us that the object of the deeming clause is circumscribed by sub-para.8 itself, which is to be effect that while entertaining and deciding suits enforcing the right of pre-emption, founded on tenancy, the Collector, the Commissioner and Board of Revenue "shall have all the powers of a Civil Court under any law for the time being in force" but it can well be said that this power could have been conferred on these forums even without importing the concept of legal fiction. One object of user of words "shall be deemed to be a civil Court" proceeding the above-quite expression seemingly is to put beyond reasonable doubt the availability of such power to the forums entrusted with the hearing of the suits under section 25 of the Regulation. Further in the absence of these words, conceivably such forums would have remained merely quasi-judicial tribunals guided by the provisions of C.P.C. in resolving the disputes brought before them. But, on account of the deeming clause they are clothed with the status of a Civil Court. This effect of combined reading of the aforesaid two "expressions" is that for pronouncement upon the rights of the parties, the Collector and other functionaries have to imperatively investigate and determine the fact objectively and apply law thereto like a Civil Court, and are bound by the principles and procedure laid down in civil Procedure Code. The latter part of sub-para. (8) demonstracts that final orders passed in such suits are required to be treated as decree of the Civil Court and executed as such meaning thereby that in executing final order, it is not open to the Collector to follow the procedure other than the one provided by the Civil Procedure Code, and further he can exercise the powers of the Executing Court under the Code, including the powers to determine the question relating to execution, discharge and satisfaction of the decree." In a case reported as 2002 CLC 388, expressions "Means", "including" or "means and includes" have been defined as follows:-- "In support of the earlier D.B. decision of this Court, we would only like to add that it is admitted principle of the interpretation of statutes that whenever a definition is given using the expression "means", it is exhaustive and wherever, the expression used is "included" or "including", or "means and includes", the definition is not exhaustive but it is inclusive which is always supposed to extend the meanings/items/ things/acts of similar nature and can be legitimately included in the definition, if the circumstances so warrant. In the earlier judgment of this Court, it has already been discussed that in the relevant notification, the handkerchief, bed wears, pillow covers and cushion covers are already included in the garments although stricto senso they may not be garments at all and the C.B.R. itself by mere process of interpretation directed that, "cushion covers should be deemed to be covered under the heading pillow covers" and in the cognate notification table covers manufactured from cotton were allowed the facility of export rebate." In PLD 2000 Lahore 602 the phrase "included" was interpreted as under:-- "From a bare reading of sub-clause (o) of section 5 of the National Accountability Bureau Ordinance, 1999 it becomes clear that this sub-clause applies to the corporate bodies, firm, partnership or sole proprietorship. The word `person' is followed by expression `included' in this sub-clause. This expression has been defined by Black's Law Dictionary (Sixth Edition) in following terms:-- 'Include. (lat. Inclauddere, to shut in, keep within). To confine within, hold as in an inclosure, take in, attain, shut up, contain, inclose, comprise, comprehend, embrace, involve. Term may, according to context, express an enlargement and have the meaning of and or in addition to, or merely specify a particular thing already included within general words thereto fore used. `Including' within statute is interpreted as a word of enlargement or of illustrative application as well as a word of limitation." The aforesaid phrase was examined in famous case of Dilworth v. Commissioner of Stamps (1899 AC 99). In this case Lord Watson observed:-- "But the word `include' is susceptible of another construction, which may become imperative, if the context of the Act is sufficient to show that it was not merely employed for the purpose of adding to the natural significance of the words or expressions defined. It may be equivalent to `mean and include', and in that case it may afford an exhaustive explanation of the meaning which, for the purposes of the Act, must invariably be attached to these words of expressions." Ordinarily this word is used as an expression of enlargement and implies that something else also falls within that word which was beyond its general organize meaning. This is, however, not the rule of thumb. Some time it conveys a restrictive meaning depending upon the context in which it is used. This expression shows inclusionary approach of law-making authority. Resultantly, it can be briefly said that the expression `include' is to be interpreted on the touchstone of both approaches given above after examining this expression in context of statute in which it is employed/used. On these touchstones, it is clear to us that the Sponsors, Chairman, Chief Executive, Managing Directors, Elected Directors, by whatever name they are called, and guarantors of the Company or anyone, who exercises dominative control in the affairs of such a corporate body, come within the ambit of this sub-clause. This part of sub-clause is followed by another part which is exclusionary in approach. It says that it does not include the employees of the company who were/are appointed and designated as Directors or Chief Executive or even as the sole proprietor. This part of the sub-clause is in the form of exception to first part. The underlying purpose of this exception is to save the employees from the applicability of first part and from the penal consequences of felonious act committed by their employer. The purpose of this part is, as already noted, to save employees of the Companies from unwarranted prosecution of act and omissions committed by their employer. Philosophy of this clause is so human and highly noble and saves innocent helpless employees from the rigour of criminal action. In 2001 MLD 1183, the phrase "means and includes" was examined by the Hon'ble Sindh High Court and it was held:-- "A definition given in an enactment and law is either exhaustive or in-exhaustive. When it is exhaustive, `means' is used and when it is to be in-exhaustive, the verb `includes' is used. Exhaustive definition means that the term defined is what it has been defined for all purposes. Thus, an owner of the property is landlord for all' purposes. In 'an in-exhaustive definition, the term defined is by what it has been defined for some purposes or purposes. A rent controller is thus, landlord for some purposes, and they are that he can collect the rent and can also take necessary legal steps in case of default in payment of rent." In case reported as PLD 1953 Lahore 22, it was held by the Hon'ble High Court:-- "The definition of the expression "Court which passed a decree" in section 37 is not exhaustive. It merely includes certain Court but does not necessarily exclude other Courts which were not in contemplation."

6. There is no doubt that when phrase "include" is used, it implies that something else also falls within that word which was behind its general organic meaning. This is, however, not the rule of thumb. It really depends on the context, in which it is used. If the decree to be executed is, passed by appellate court in exercise of appellate jurisdiction, the court of first instance shall also be a "court which passed a decree". The definition is not exhaustive. There may be some other court which may also be "court which passed a decree". The next question however is whether the appellate Court or revisional court is "court which passed a decree. In our opinion the appellate court or the revisional court is not covered by the expression "court which passed a decree". The appellate or revisional court, corrects the error committed by the court of first instance. The decree remains to be that of trial court. In case reported as 1984 CLC 2494, it was held by the Sindh High Court:-- "The question, therefore, arises whether this court is empowered to executive the order which was passed by us in exercise of appellate jurisdiction? Reference has been made in this connection to section 38 of the C.P.C. which provides that a decree may be executed either by the court which passed it or by the court to which it is sent for execution. Now the term "the court which passed decree" has been defined by section 37, C.P.C. Clause (a) of section 37, C.P.C. provides that the expression "the court which passed a decree" shall, where the decree has been passed in exercise of appellate jurisdiction, be deemed to include the court of first instance. Mr. Khalid Anwar learned counsel for the appellate has argued that by virtue of section 37(a) the appellate Court is not precluded from executing its own order. According to him the word "includes" appearing in section 37(a) does not mean that the Court of first instance is the exclusive court for executing decree passed by the appellate Court, and that the language in which section 37(a) is couched clearly indicates that the appellate, Court has got concurrent jurisdiction with the court of first instance in respect of implementation or execution of orders or decrees passed by the appellate Court in exercise of appellate jurisdiction. We are unable to agree with the learned counsel that this court has got concurrent jurisdiction with the court of first instance in the matter of execution of appellate decrees. The order of the court of first instance dated 8th March, 1983, which was modified in appeal by us by order dated 26th May, 1983, shall be deemed to have been merged in the appellate order. Now it is the court of first instance which is competent to implement the final orders in terms of section 37(a), C.P.C. Section 38, C.P.C. is not an independent section. It is to be red in the context of provisions of section 37(a), C.P.C. so far as the interpretation of the expression "the Court which passed decree" is concerned. We are supported in this view by decision of Allahabad High Court in the case of Bhagwan Das v. Ganga Prasad AIR 1959 All.

92. It has been held in the above case that where a decree for costs is passed by the High Court in revision, the court of first instance viz. the Munsiff's court and not the High Court would have jurisdiction to execute the decree inu view of section 38 read with section 37(a), C.P.C. In Lingam Krishna Bhoopathi Deo Garu v. Raja of Vijayanagaram and another AIR 1914 Mad. 222(2) it has been held that "where the Privy Council transmits its decree to the High Court, the High Court in receiving and filing it does purely a ministerial act. The District Court whose decision was appealed against does not thereby cease to be a Court "which passed the decree" for the purpose of recognizing the transferee decree-holder and ordering execution at his instance". Again in the case of Alluri Bangar Raju and others v. Alluri Raja Kalidindi Suraiahrnma Bahadur and another AIR 1957 Andh. Pra. 403 if has been held that the proper Court to execute the appellate decree would be only the trial court by virtue of section

37. C.P.C. We are in respectful agreement with the views taken in the above cases. Consequently the appellant should move the court of first instance i.e. learned Single Judge whose order was modified by us vide order dated 26th May, 1983 for execution of the order in question or for staying the operation of that order. The question whether respondent No.1 can be suspended from acting as a Trustee during pendency of the suit or the proceedings taken on 2nd July, 1983 by respondents Nos. 1, 2 and 3 after the decision of the High Court Appeal by us, should be declared to be legal or otherwise, are such which may appropriately be agitated before the learned Single Judge who is seized of the suit.

7. This judgment was upheld by the Hon'ble Sindh High Court in case reported as 1999 CLC 1121.

8. We therefore, hold that the decree cannot be executed by the appellate Court and power to execute the decree is with the trial court.

9. Mr. Naeem Bukhari, Advocate relied on section 37(b) of the C.P.C. to contend that the Civil Judge, Islamabad has ceased to have jurisdiction to execute the decree because all suits, the pecuniary value whereof is Rs.25,00,000 or more, are triable by the High Court. In case reported as PLD 1956 SC (Ind.) 220, the Indian Supreme Court held at page 229 of the report:-- "It is settled law that the Court which actually passed, the decree does not lose its jurisdiction to execute it, by reasons of the subject-matter thereof being transferred subsequently to the jurisdiction of another court, vide Seni Nadan v. Muthuswamy Pillai (AIR 1920 Mad. 427) Masrab Khan v. Debnath Mali (AIR 1942 Cal. 321) and Jagannath v. Ichharam (AIR 1925 Born. 414) But does it follow ` from this that the District Court, East Godavari has no jurisdiction to entertain the execution application in respect of the decree in O.S. No.25 of 1927 passed by the Court of the Subordinate Judge, Kakinada? There is a long course of decisions in the High Court of Calcutta that when jurisdiction over the subject-matter of a decree is transferred to another Court, that court is also competent to entertain an application for execution of the decree. Vide Latchman v. Maddan Mohan (6 Cal. 513) Jahar v. Kamim Devi (28 Cal. 238) and Udit Narain v. Mathura Prasad (35 Cal. 974) But in Ramier v. Muthukrishna Ayyar (AIR 1932 Mad. 418) a Full Bench of the Madras High Court has taken a different view, and held that in the absence of an order of transfer by the court which passed the decree, that Court alone can entertain an application for execution and not the Court to whose jurisdiction the subject-matter has been transferred. This view is supported by the decision in Masrab Khan v. Debnath Mali (supra). It is not necessary in this case to decide which of these two views is correct, because even assuming that the opinion expressed in Ramier v. Muthukrishna Ayyar (AIR 1932 Mad. 418) is correct, the present case is governed by the principle laid down in Balakrishnayya v. Linga Rao (AIR 1943 Mad. 44). It was held therein that the Court to whose jurisdiction the subject-matter of the decree is transferred acquires inherent jurisdiction over the same by reasons of such transfer, and that if it entertains an execution application with reference thereto, it would at the worst be an irregular assumption of jurisdiction and not a total absence of it, and if objection to it is not taken at the earliest opportunity, it must be deemed to have been waived, and cannot be raised at any late stage of the proceedings".

10. The Indian Supreme Court has thus held that the Court which passed the decree can entertain application for execution even if it loses the jurisdiction over the properties subject-matter of the suit in which the decree was passed. The Supreme Court of India did not decide whether the Court in whose jurisdiction the properties subject-matter of the suit are situated at the time of filing of the application will have also the jurisdiction to execute the decree.

11. We are of the opinion that if a court after passing the decree loses the territorial jurisdiction or the pecuniary jurisdiction, the successor court in whom the territorial or the pecuniary jurisdiction vests cannot entertain the application for execution because the court which passed the decree has not lost the jurisdiction to execute the decree. We have, therefore, come to the conclusion that the decree is to be executed in this case by the Civil Court of Islamabad. Even otherwise we have the power under section 39(2) of the C.P.C. to send the decree for execution to any sub-ordinate court of competent jurisdiction.

12. In view of what has been said above, the execution application is sent to Civil Judge, Islamabad who will proceed with the application in accordance with law. No order as to costs. S. A.K./H-1/Isl. Order accordingly.