2016 PLP 34 (MLD)

YAR MUHAMMAD, J.

This appeal under Order-43 Rules 1 and 2 read with Section-104 CPC has been directed against the Order dated 21.12.2011 passed by Mr. Minhas Hussain, Senior Civil Judge, Skardu whereby the learned Judge has dismissed the petition of the appellant filed u/s 144 read with Section-151 CPC.

2. Briefly the background of this appeal is that respondent Hassan Sadpara on 24.9.1991 filed a suit in the Court of Civil Judge, Skardu against the appellant No.5 and 3 others for recovery of Rs. 2,76,00000. The suit was decreed ex-parte on 11.4.1992. Consequent upon the said decree, the plaintiff/respondent filed execution proceedings in the executing court and as a result thereof the decree was satisfied through payment of the decretal amount by the defendants. Since the Government of Pakistan was not made party as defendant in the suit, therefore, the Government of Pakistan through Secretary Defence assailed the aforesaid exparte decree by filing an application on the plea of fraud, mis-representation and want of jurisdiction. The ex-parte decree however, was set aside by Mr. Justice Zeenat Khan (late) the then Chief Justice of this Court through his comprehensive judgment dated 7.4.1999. The operative part of the judgment for the sake of convenience is reproduced as under:-- "Consequent upon what has been discussed above, these petitions merit acceptance. Order accordingly. Ex-parte decree dated 11.4.1992 is set aside and the case is remitted back to the trial Court with directions to proceed in the matter in accordance with law after making Pakistan and Frontier Works Organization as parties to the suit. Since the impugned judgment and decree has set at-naught; therefore, the defendants will be well within their lights to invoke the provisions of Section-144 CPC. Parties are left to bear their own cost."

3. By setting aside the ex-parte decree this court through the said judgment further paved the way to the defendants/judgment debtors entitling them to invoke the provisions of Section-144 CPC, therefore, the Commanding Officer 491 Engineering Group FWO Jutial Gilgit filed application under section-144 CPC in the trial/executing court for restitution/remission of the decretal amount Rs. 2,76,00000/- with compound interest at the prevailing bank rate from the date of satisfaction of the decree till the date of its restitution/refund to the applicant. The learned Senior Civil Judge, Skardu after hearing the parties rejected the application holding that "Government of Pakistan and FWO were not made party to the suit and likewise, the instant petition is filed by an individual, the same is not maintainable in its present form therefore, is hereby rejected."

4. We have heard the learned counsel for the parties at length and have gone through the material available on the file.

5. Malik Shafqat Wali, Advocate the learned counsel for the appellants argued that the petition u/s 144 CPC for restitution has been filed by the Commanding Officer 491 Engineering Group FWO Jutial, Gilgit because in the suit he was the main party and later on the decretal amount was also paid by him as such he is entitled for restitution. He argued that at the time when the suit was decreed ex-parte, the Secretary Defence was not party to the suit therefore, the person from whom the amount has been recovered and paid to the plaintiff/decree holder/ respondent, is entitled to invoke the provisions of Section-144 CPC and in that sense the application is not suffering with any defect of non-joinder of a party as petitioner. He argued that a cause pending before a court is not defeated merely on such ground because if any party is left out and not made party, even then the court itself is empowered to remove the defect by impleading the party but a pleading could not be defeated treating defective for that reason.

6. Mr. Amjad Hussain, Advocate the learned counsel for the respondent on the other hand argued that the application u/s 144 CPC had to be filed by the Government of Pakistan through Secretary Defence and others who were declared as necessary party in the case as per the Judgment dated 7.4.1999 passed by this Court setting aside the ex-parte decree. He argued that the application for restitution has been filed by an individual and considering the same defective the learned counsel for the appellants has filed the instant appeal through Government of Pakistan and five others which is not the proper way rather such rectification needs to be made in the original application. The learned counsel next contended that the ex-parte decree although has been set-aside by this Court yet the suit between the parties is still subjudice and under investigation after making Pakistan and Frontier Works Organization party to the suit therefore, the application u/s 144 CPC may also be kept pending till final adjudication of the suit so as to avoid exercise of another execution proceedings, in case the suit is again decreed but on merit.

7. We have considered the arguments advanced before us by the learned counsel of the parties keeping in view the attending circumstances of the case. We have also noticed that the learned Senior Civil Judge, Skardu has rejected the application u/s 144 CPC for restitution on technical ground as he had felt that "Government of Pakistan" and "FWO" have not been made party and no observations have made with regard to the merits of the application.

8. At the time when the ex-parte decree was passed against the present appellants, the Commanding Officer and three others were party as defendants in the suit and they paid the decretal amount in consequent of the execution proceedings initiated against them and the Commanding Officer 491 Engineering Group FWO Jutial Gilgit being necessary party in the suit became well with in his right to invoke the provisions of Section-144 CPC. The learned trial Judge although had felt a defect in the application holding "that the same has not been filed by the proper party, but despite having powers to rectify the defect by including the missing party in the application, did not include such party in the array of petitioners or respondents as per the requirement of the matter, rather rejected the application, resulting in the miscarriage of justice.

9. The provisions of Section-144 CPC are enforced only by filing an application provided that the applicant fulfills the conditions vide which it is mandatory that the restitution must be in respect of the decree which has been varied and reversed; that the party applying for restitution must be entitled to the benefit under the decree reversed and the person who has applied for restitution was party in the suit before the trial Court which had passed the decree.

10. In this matter the petitioner (now appellant-5) was the party as defendant in the suit and he has paid the decretal amount because of the execution proceedings initiated against him thus, he being party in the suit has rightly filed the application for restitution.

11. The petitioners/appellants have claimed restitution of the decretal amount Rs. 2,76,00000/- with compound interest at the bank rate from the date of satisfaction of the decree till the date of restitution. How far this claim is lawful, no observation in this regard too has made by the trial Court in the impugned order but this point being important is required to be thrashed out, vide which the trial court is required to determine the compound interest if he reaches to same conclusion.

12. So far the contention of the learned counsel of the respondent that this matter be kept pending till adjudication of main suit between the parties, we with due respect to the learned counsel are not in agreement with the view because under the vires of the ex parte decree the petitioners have been affected by paying the decretal amount which now has been reversed as such the petitioners are entitled to be placed in same position as they were prior to the decree which has been varied by the court of competent jurisdiction. The basic principle underlying right of restitution is that a wrong done to a party by an act of court, should be rectified. Therefore, we are of the clear opinion that if the respondents succeed in his suit pending subjudice he will be remedied by way of payment in that suit through execution proceedings.

13. In view of the above discussion, we accept the appeal, set aside the impugned order of the trial Court and remanded the application u/s 144, CPC back to the same court for adjudication on merit. File. HBT/88/GB Appeal accepted.