P L D 1966 (W (PLP)

MUHAMMAD FAZLE GHANI, J.-This is a Letters Patent Appeal against the judgment of a learned Single Judge ins Execution First Appeal No. 92 of 1,

960. The facts giving rise to the present appeal are that the appellant obtained a decrees for a sum of Rs. 9,279-13-33 against tile, respondent from the Civil Courts of Rawalpindi on the 31st of March 1956. However, the judgment and decree directed that the appellant bank should first arrange for the sale of the balance of 3,001.2 cubic feet of the timber which was pledged by the respondent to the bank and credit the sale proceeds towards the liquidation of the decretal amount.

2. The appellant bank sold 410.8 cubic feet of the timber at a meagre rate of Rs. 5 per cubic feet and a sum of Rs. 2,053-12-0 was adjusted against the decretal amount and for the balance took out execution of the decree praying for the attachment and sale of the property of the respondent judgment-debtor. On the 9th of November 1957, an application was presented on behalf of the judgment-debtor under section 47 of the Code of Civil Procedure requesting for the quashment of the warrants of the attachment of his property on the ground that the bank was not entitled to apply for execution against the respondent unless the remaining timber had been sold. This application was contested by the appellant with the objection that only 410.8 cubic feet timber was lying with the bank at the time when the decree was passed and it was due to the misrepresentation of the judgment-debtor that the records of the bank wrongly showed timber as 3,001.2 cubic feet. This objection of the appellant was overruled by the executing Court on the ground that in the judgment and decree passed by the Administrative Civil Judge, Rawalpindi, it was found that 3,001.2 cubic feet timber was pledged to the bank and as the directions about the sale of the timber had not beets complied with the execution application of the appellant was not competent. The order was brought before this Court on appeal by the appellant but it was dismissed in limine and the order of the executing Court was affirmed.

3. Instead of disposing of the remaining timber the appellant bank adjusted the sum of Rs. 1,817 belonging to the respondent which was lying as security with the appellant. Against this wrongful adjustment the judgment-debtor made another application to the executing Court under sections 47/151/144 of the Code of Civil Procedure praying that the appellant had wrongfully adjusted the amount of Rs. 1,817 from his accounts and demanded its refund. It was also requested that the decree-holder be directed to sell the remaining timber measuring 2,590.4 cubic feet at the market rate of Rs. 7 per cubic feet and to refund the amount which execeeded the amount of the decree.

4. The appellant resisted this application on the ground that the judgment-debtor had pledged much lessor quantity of timber than what was claimed by him and further that the amount of Rs. 1,817 was adjusted on the direction of the judgment-debtor himself. The executing Court found that the contentions of the appellant were without force as these directions were contained in the letter Exh. P. 15 on the file of the trial Court and was superseded by the judgment and decree of the Court where a clear direction was given that the decree-holder should realise the decretal amount first by selling the timber pledged to him and thereafter may adopt any other course which was open to him under the law. The matter came up before this Court in execution first appeal. The learned Single Judge dismissed the appeal and held that the unauthorised realisation by the decree-holder was covered by all the three ingredients of section 47, C. P. C. relating to execution, discharge and satisfaction of the decree and the executing Court was fully competent to adjudicate upon the matter under controversy. It was further held that the order of refund of the money, wrongfully realised by the decree-holder, was also warranted by provisions of section 151 of Civil Procedure Code.

5. In this appeal Raja Said Akbar Khan, learned counsel for the appellant contested the order of the learned Single Judge and vehemently urged that the decree-holder had realised the amount of Rs. 1,817 through his own resources and as such no order could be made against him as it was not a question as envisaged by the opening words of section 47, C. P. C. It was further submitted that provisions of section 144, C. P. C. were not applicable and the application of the respondent judgment-debtor under that section was incompetent. Lastly, it was argued that inherent powers of the Court under section 151, C. P. C. are to be exercised only where there was no express provision of the law or the process of the Court had been abused. No authority was cited by the learned counsel in support of his contentions but since the points raised involve an important question of law it is, therefore, necessary to deal with them in this order with some detail.

6. Before proceeding with the matter it can be said at the very outset that this is not a case of variation or reversal of a decree and the principles of restitution as embodied under section 144, C. P. C. in its strict terms are not applicable. The application of the respondent yeas against an unilateral action of the appellant Bank by which the security amount of Rs. 1,817 was adjusted towards the amount of the decree in clear violation of the term of the decree. The questions, therefore, which fall for determination in this appeal are (i) whether the action of the respondent is one which is covered by the provisions of section 47 of Civil Procedure Code and (ii) whether an order of restitution can be passed under section 151 when section 144 of the Civil Procedure Code is not applicable in its strict terms?

7. Learned counsel for the appellant has urged that the only remedy open to the judgment-debtor in these circumstances v, as to file a separate suit for the recovery of the amount wrongfully realised by the decree-holder in adjusting the security amount. But it must be appreciated that the decree passed by the Civil Court in favour of the appellant was so conditioned that the performance on the part of the decree-holder for the sale of the umber lying with the Bank was interlinked with the execution of the balance from the person or property of the judgment-debtor and since this amount was adjusted by the Bank towards the decretal amount, therefore, the realisation from the security deposit cannot be said to arise independently of the question relating to the satisfactions of the decree. According to Order XXI, rule 2, C. P. C. any money payable under the decree if paid to the decree-holder out of the Court, then the decree-holder has to certify such payment or adjustment to the Court whose duty is to execute the decree. In this case if the decree-holder would have made an application under Order XXI, rule 2 sub-clause (1) that the amount has been adjusted in part to the satisfaction of the decree and the executing Court would have certified the same, the question would have been res judicata and a separate suit by the judgment-debtor to challenge, that the realisation from the security deposit was illegal, would have been barred. Similarly, if on an application, made under Order XXI, rule 2, sub-rule (2), by the judgment-debtor, the Court would have declined to certify the payment, the matter once again could not have been agitated in a separate suit by the judgment-debtor.

8. In Ram Kirpal v. Rup Kuari ((1883) 11 1 A 37 ; 6 All. 269) their Lordships of the Judicial Committee held "that though the section in terms did not apply to execution proceedings, the principle of res judicata applied to such proceedings. The question in that case was whether a decision in the course of execution proceedings, that the decree which according to its true construction awarded future mesne profits, operated as res judicata so as to preclude the Court from trying the question over again at a subsequent stage of the proceedings . . . . . . Their Lordships said: "The matter decided by Mr. Probyn was not decided in a former suit, but in a proceeding of which the appli cation in which the orders reversed by the High Court were made was merely a continuation. It was as binding between the parties and those claiming under them as an interlocutory judgment in suit is binding upon the parties in every proceedings in that suit, or as a final judgment in a suit, is binding upon them in carrying the judgment into execution. The binding force of such a judgment depends not upon section 13, Act X of 1887 (section 11 of the present Code, but upon general principles of law. If it were not binding there should be no end to litigation." Respectfully, adopting the observation of their Lordships in the above noted case, we hold that on the principles laid down above the appellant in this case will not be allowed to challenge the validity of the order of the executing Court in these proceedings in a subsequent suit and in the circumstances, which we have explained earlier, the subsequent suit of judgment/ debtor would have been barred, we are therefore of the opinion that this question could not be subject-matter of a separate suit between the same parties before a Civil Court.

9. It has been held in a large number of cases that if the decree-holder takes in execution land, not included in the decree or in excess of the decree, the judgment-debtor must apply under section 47 for the recovery of such land and a separate suit for that purpose will not lie. In this connection reference can be made to Sharfo, etc. v. Mir Khan, etc. ((1919) 1 L L J 230). In that case the plaintiffs brought a suit to recover possession of the land from which they were ousted in execution of a decree, the decree- holder applied for execution and a warrant of possession was issued. Sharfo, etc. filed an application and applied for the amendment of the warrant pointing out that the possession was to be taken of the land belonging to defendants Nos. 10 to 13 only. This application was granted and the warrant was amended accordingly. Nevertheless, all the land held by Sharfo, etc., was ultimately given to the decree-holders. Defendants Nos. 1 to 9. who were the decree-holders, resisted the suit alleging that the suit was barred under section 47, C. P. C. as in that suit, which resulted in the aforesaid decree Sharfo, etc. who were said to be in possession of the property, were impleaded as defendants. They, however, took no interest in the suit. Neither they put any written statement nor appeared at any stage of the litigation. It was held that the question whether the then decree-holders were entitled to recover 7 and a half biswas out of the land in possession of Sharfo, etc., was one relating to- the execution of the decree and that consequently section 47 barred the suit.

10. Similarly where a mortgagee brought property to sale in the execution of a decree for the sale and an error was found in the mortgage amount, it was held "that the judgment-debtor claiming the refund of the excess should apply under this section." Harnam v. Muhammad ((1905) 27 All. 485). In Nilratan v. Ram Rattan ((1901) 5 C W N 627) it was held "that a mortgagee decree-holder, who claimed to recover a deficit, should have applied under this section and a separate suit was not competent".

11. The expression "relating to execution, discharge or' satisfaction of the decree" has not been defined by the Legislature perhaps to leaves the scope and applicability of the section to be flexible. The section is so framed as to prohibit any separate suit for relief being granted which will interfere with the conduct of execution proceedings by the Court executing the decree. The section has to be interpreted liberally as the underlying principle of the section is that all such questions relating to the execution which fall within the purview of execution, discharge or satisfaction of the decree and arising between the parties or their representatives should be determined in the execution proceedings. In this case it cannot be denied that it is a dispute relating to the execution of decree before it was satisfied. The decree-holder has disregarded the conditions about the execution imposed by the Court which passed the decree and made an adjustment in part to the satisfaction of the decree, therefore, it is a question arising between the parties to the suit and falls within the purview of section' 47, C. P. C. The words "all questions arising between the parties to the suit" should be construed so as to relate to or to affect the rights of the parties to the suit. It will also mean and include all questions which could properly arise or which could have properly been raised in an execution proceeding. The appellant cannot oust the Juris diction of the Court by saying that its is an act of the appellant and not of the Court and, therefore, the respondent judgment debtor should be made to suffer the torture of a separate suit.

12. There is no dearth of authority on the subject that the Court has ample powers under section 144, C. P. C. to make restitution to the party which has been deprived of the fruit of a decree by an order of the Court. In Allah Din v. Chiragh Din (43 I C 43) decided by Lahore High Court, where execution of a decree for possession was stayed pending the decision of the appeal against the decree and the appeal was subsequently dismissed it was held "that the Court had inherent powers to award mesne profits to the decree-holder for the period during which he had been kept out of possession under the Court's order". The learned Judges held "that the Court have inherent power under section 151 of the C. P. C. to apply the principle of section 144 of the C. P. C. to the cases which do not strictly fall within its terms and can order such restitution as may become necessary.

13. It was said by Lord Cairns L. C. in Rodger v. Comptoird Escompte de Paris ((1871) 3 P C 465). "One of the first and highest duties of all Courts is to take care that the act of the Court does no injury to any of the suitors and when the expression `the act of the Court', is used, it does not mean merely the act of the primary Court, or of any intermediate Court of Appeal, but the act of the Court as a whole from the lowest Court which entertains jurisdiction over the matter up to the highest Court which finally disposes of the case." The above rule was reiterated and quoted with approval by Lord Carson in Jai Berham and others v. Kedar Nath Marwari and others (A I R 1922.P C 269 at p. 271).

14. The principles underlying the cases where a party was put to a disadvantage on account of the order of the Court will apply with equal force to the, present case also otherwise it will amount to an abuse of the process of Court to allow the appellant to take undue advantage of its own position and disregard the terms and conditions imposed by the Court. The duty or jurisdiction to order restitution is not merely confined to the cases falling under section 144, C. P. C. but it falls under the inherent and general jurisdiction of the Court as it has to act rightly and fairly according to the circumstances towards all the parties involved.

15. In view of the above discussion we see no reasons to differ from the finding of the learned Single Judge and hold that the appellant has made an unauthorised realisation to the satisfaction of the decree and that this question is covered by all the three ingredients of section 47, C. P. C. and that the executing Court was fully competent to adjudicate upon this matter. We are further of the view that the authority of the Court to order the refund of the money so wrongfully received by the decree holder is also warranted by the provisions of section 151, C. P. C. The appeal is accordingly dismissed with costs. K. M. A. Appeal dismissed.