P L D 1961 (W (PLP)

"I attach statement showing the amounts due to the contrac tors in accordance with the award given by me." with this forwarding letter the arbitrator attached a list giving the names of the various contractors and the amounts due to each of them. This list extended over nine pages and contained 215 names. In terms of section 17 of the Arbitration Act the Court, to which the award was forwarded, had to pronounce judgment according to the award, and upon the judgment so pronounced a decree was to follow. Mr. Muhammad Siddique, Senior Civil Judge, Lahore, accordingly passed the following order on the 5th of December 1957 :‑ "In view of these statements I accept the award made in the case mentioned above and making this a rule of the Court, grant the plaintiff a decree against the respondent for the recovery of Rs. 9,22,780 in terms of the list pages 1 to 9 showing the amount due to the various members of the petitioner's Asso ciation.".

5. It will be seen that the award of the arbitrator determined the amounts due to the individual contractors, who alone were entitled to receive the payments in accordance with their contract agreements for carrying out certain works and the decree purported to follow the award. The decree‑sheet should have, therefore, shown the names of the individual contractors and the amounts due to them, as they were the only persons entitled to receive the A money in terms of the award. The decree‑sheet, as drawn up, suffers from a patent error which I think can, and should, certainly be corrected in the exercise of the inherent powers of the Court. I would, therefore, order that the decree‑sheet be corrected so as to show the amounts due to individual contractors. They are the real decree‑holders in pursuance of the award.

6. The next question requiring consideration is about the certification of the amount which has been paid out of Court by the judgment‑debtor to the various contractors mentioned in the list prepared by the arbitrator. As already stated the learned Senior Civil Judge accepts that Rs. 8,40,000 have been paid by the judgment‑debtor to the various contractors mentioned in the list, but he has refused to certify these payments, partly because no application was made under Order XXI, rule 2 of the Civil Proce dure Code within ninety days of the date of payment, and partly because the amount was paid to persons who were not decree holders. In view of my finding regarding the correct identity of the decree‑holders there is no difficulty in certifying the amount of Rs. 2,38,590 in respect of which the application under Order XXI, rule 2, C. P. C. was made within ninety days of the payment. These payments have been made to the contractors named in the list and, therefore, constitute a valid discharge of the decree to that extent.

7. With regard to the remaining amount of Rs. 6, 01,410 the question of limitation has been raised. Order XXI, rule 2 deals with payments out of Court and sub‑rule 2 thereof prescribes that the judgment‑debtor 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 why such payment, or adjustment, should not be recorded as certified. Under Article 174 of the Limitation Act the period of limitation for the issue of notice is ninety days from the date of payment or adjustment. Sub‑rule 3 of rule 2 of Order XXI of the Civil Procedure Code declares that a payment, or adjustment, which has not been certified or recorded as afore said, shall not be recognised by any Court executing the decree. The learned Execution Judge has refused to certify the amounts in view of the provisions of sub‑rule 3.

8. Mr. Abdur Rashid, the learned counsel for the appellant judgment‑debtor has contended that sub‑rule 3 of Order XXI, rule 2 does not apply in view of its omission by section 36 of the Punjab Relief of Indebtedness Act (Act VII of 1934). He has further contended that the position is not altered by the West Pakistan Relief of Indebtedness Ordinance, 1960 (Ordinance XV of 1960), which has repealed section 36 of the Punjab Relief of Indebtedness Act of 1934 as section 6 of the Ordinance excludes the operation of sub‑rate 3 of rule 2 of Order XXI in respect of an adjustment or payment made by a debtor. He has also contended that in any case the payments in question shall be governed by the previous law as they were made before the enactment of Ordinance XV of 1960. For these reasons, his position is that no period of limitation applies and the payments could be certified even though the application was not made within 90 days.

9. Chaudhari Feroze Din has, on the other hand, contended that in the first place section 36 of the Punjab Relief of Indebted ness Act of 1934 cannot benefit the present debtor as it was limited to the debtors as defined in section 7 of that Act, and secondly that in any case the section has now been repealed by Ordinance XV of 1960 and section 6 of that Ordinance is clearly limited to the debtors with which the Ordinance deals and the benefit of that section does not extend to the Provincial Government.

10. We may first examine the position with respect to section 6 of Ordinance XV of 1960. This section is to the follow ing effect "Nothing in Order XXI, rule 2 (3) of the Code of Civil Proce dure, 1908, shall apply to an adjustment or payment made by a debtor." It is clear that the term "debtor" employed in this section is to be interpreted according to the definition of debt and debtor given in clauses (b) and (c) of section 2 of the Ordinance. The term "debtor" according to clause (c) means a person who owes a debt ; and (i) who earns his livelihood mainly by agriculture and is either a land‑owner or tenant of agricultural land ; or (ii) who earns his livelihood as a village artisan paid in cash or kind for work connected with agriculture ; or (iii) whose total assets do not exceed five thousand rupees. The term "debt" is defined in clause (b), but for our present pur poses it is not necessary to reproduce that definition here. Suffice it to say that the term "debtor" as defined in clause (c) of section 2 of Ordinance XV of 1960 does not cover the present judgment‑debtor, as the Provincial Government does not fall in any of the three categories just enumerated. I would, therefore, agree with the learned counsel for the decree‑holder that section 6 of Ordinance XV of 1960 does not help the present judgment‑debtor, as it is limited in scope to the debtors as defined in the Ordinance itself.

11. But Ordinance XV of 1960 was published on the 27th of April 1960, while all the payments, with which we are dealing in this case, were made before the 20th of November 1958, which is the date of the application for certification of these amounts. It is contended by Chaudhari Feroze Din for the respondent that what ever the dates of these payments, no benefit can accrue under section 36 of the Punjab Relief of Indebtedness Act for the simple reason that section 36 stands repealed at the present moment. In other words, it seems to be his contention that the repeal has to be given retrospective effect. He has referred to Nisar Husain and another v. Sundar Lal and others ( A I R 1927 All. 657 ), Shib Narain and another v. Lachmi Narain and another (AIR 1929 Lah 761), Peoples Bank of Northern India Ltd. through Official Liquidator v. Wahid Bakhsh (AIR 1943 Lah.170 ) and Banwari Gope and others v. Emperor (AIR 1943 Pat 18) to support the proposition that "enactments dealing with procedure have an immediate effect which must, unless the contrary is expressed, apply to all actions whether commenced before or after the passing of the Act. A party has no vested right in mere procedure. The Courts have to adopt the procedure laid down by the statutes which are enforced for the time being." I am in respectful agreement with the principles enunciated in the authorities cited by Mr. Feroze Din, but it is clear that in the present case no occasion arises for their application. The payments were made before the 20th of November 1958, and the question of adjustment was raised in the executing Court long before the repeal of section 36 of the Punjab Relief Indebtedness Act. The decision of the executing Court on the question raised was given on the 5th of December 1959, while the repealing Ordinance came into force on the 27th of April 1960. It is obvious, therefore, that the question has to be decided with reference to the c law which prevailed at the time the question was raised and considered by the Court concerned.

12. It now remains to consider as to whether section 36 of the Punjab Relief of Indebtedness Act of 1934 benefits the present judgment‑debtor. This section is very brief and may be repro duced here‑ "

36. In Order XXI, rule 2 of the Code of Civil Procedure, 1908, sub‑rule (3) shall be omitted." The section itself does not give any indication that the benefit of the omission shall be limited to any class of debtors. There is no doubt that in subsection (2) of section 7 of the Punjab Relief of Indebtedness Act the term "debtor" is defined, and the categories enumerated therein do not embrace the present judgment‑debtor which is the Provincial Government, but it seems to me that there is no warrant for limiting the scope of section 36 of the Act so as to cover only those categories of judgment‑debtors which are mentioned in section 7 of the Act. Chaudhari Feroze Din was no able to cite any authority where section 36 was so limited. On the contrary, a perusal of the authorities shows that section 36 of the .Punjab Relief of Indebtedness Act was given its natural meaning, and was held to apply to all judgment‑debtors. (See A I R 1938 Lah. 126 and A I R 1938 Lah. 601). It would follow, therefore, that section 36 of the Punjab Relief of Indebtedness Act would come to the rescue of the judgment‑debtor and entitle him to apply for certification of the amounts paid outside the Court irrespective of any period of limitation.

13. On this view of the matter an amount of Rs. 6,01,410 which has been paid by the judgment‑debtor to the individual contractors, and with respect to which no application for certifi cation was made within ninety days of the payment, must be certified within the meaning of Order XXI, rule 2 of the Civil Procedure Code. Thus, on the basis of figures mentioned by the Senior Civil Judge, the result is that an aggregate amount of Rs. 8,40',000 paid by the judgment debtor outside the Court should be certified as constituting a valid discharge towards the decree made in pursuance of the arbitration award. But it is pointed out by Mr. Rashid that the figures given in the order of the learned Civil Judge are not correct. According to his instructions, the Government has already paid Rs. 8,54,688, i.e., Rs. 2,53,278 within ninety days of the application under Order XXI, rule 2, C. P. C., and Rs. 6,01,410 at earlier dates. If these figures are correct, then the outstanding amount would be only Rs. 68,092 and not Rs. 77,038 as mentioned in the order under appeal. Subject to verification of the amount by the executing Court, I would certify the total amount already paid by the judgment‑debtor to individual contractors.

14. I, therefore, accept this appeal, set aside the order of the executing Court and direct that the outstanding amount be deposited by the judgment‑debtor in Court within thirty days from the date of this order so as to be paid to the individual contractors according to the award and the amended decree, which shall now be prepared on the basis of the award. In view of all the circum stances of the case, I would leave the parties to bear their own costs throughout.

15. Before closing, I would, however, like to observe that it was vehemently argued on behalf of Qazi Abdul Hakim Khattak, the General Secretary of the Punjab Irrigation Contractors' Association, that he had incurred a very heavy expenditure in pursuing the matter before the arbitrator as well as in the Civil Court and that the Contractor's Association had resolved, in one of its meetings, to pay him a certain percentage of the decretal amount as his expenses and commission and it was for this reason that he was contesting the position adopted by the judgment debtor in making payments outside the Court. It was also alleged by him and his counsel that the method of payments outside the Court was resorted to by the departmental authorities so that they could extract illegal gratification from the individual contractors, which would not have been possible if the amounts had been paid in Court to the Association or its Secretary. I am not called upon to adjudicate upon this latter allegation, nor I consider it is for me to give a findings as to whether the Contractors' Association was indeed under an obligation to pay a certain. percentage of the decretal amount to Qazi Abdul Hakim Khattak for his expenses and commission. This is a matter between Qazi Abdul Hakim Khattak and the contractors, who comprise the membership of his Association. If indeed the Qazi has incurred heavy expenses in pursuing the present litigation on behalf of these contractors, I am sure, they would honour their commitments, if any, towards him. A. H, Appeal accepted