2005 PLP 1898 (MLD)

MAULVI AHWARUL HAQ, J.

A suit filed by respondent No.1 on 12-5,-2001 under Order XXXVII C.P.C. was decreed against the respondent No.2 in the sum of Rs.6,00,000 by a learned Additional District Judge, Khanewal, on 21-6-2001, the decree was put into execution on 20-12-2001. On 4-1-2002 the case was put up before a learned duty Additional District Judge who issued warrants for the arrest of the said judgment-debtor. On 22-1-2002 fresh warrants were ordered to be issued for 6-2-2002, the respondent No.2 was produced in custody A on 1-2-2002 and he was sent to Judicial Lock-Up. He was again produced before the learned Additional District Judge on 2-2-2002, it was prayed on his behalf that he be released subject to furnishing of a surety bond so that he may challenge the order of his arrest before this Court. The learned Additional District Judge, Khanewal, ordered the release of judgment-debtor subject to furnishing of a surety bond equivalent to the decretal amount. It was also ordered that the judgment-debtor shall appear on each and every date. On the same date, Akbar Ali petitoner filed a surety bond in the following terms:-- On 17-6-2002 the file of the execution was taken up by the learned Executing Court on the application of the respondents. Statement of the decree-holder, his learned counsel., the judgment-debtor and his learned counsel was recorded to the effect that a compromise has been effected between the said parties which is recorded in writing (Mark CA) and both parties shall be bound by it. The statement was signed by the two respondents and their respective learned counsel. The case was adjourned to 4-7-2002, the order narrates that in view of the compromise agreement (C.1) the execution petition is disposed of. The parties would abide by the terms of the agreement (C. 1) and in case of failure on the part of the judgment-debtor in this respect, the decree-holder would be liberty to file a fresh execution petition. As per terms of Mark C.1 the surety bond furnished on behalf of the judgment-debtor would remain intact till the satisfaction of the decree under execution.

2. Now the compromise Mark C.1 is between the two respondents. It is signed by them and their learned counsel. It is dated 15-6-2002. Now this document narrates that the judgment-debtor would pay the decretal amount in annual instalments of Rs.2,00,

000. The first instalment of Rs.1,00,000 being payable on 31st of May and the second instalment of Rs. 1,00,000 being payable on 30th of November. The first instalment shall accordingly be paid on 30-11-2002 and every year upon payment of the two instalments, the decree-holder shall release one Acre out of the land of the judgment-debtor mortgaged with him. Further before the payment of the instalments in case the judgment-debtor wishes to transfer three Acres of agricultural land in Chak N6.97/10R in favour of the decree-holder. He can do so and in such an eventuality, the decree-holder shall pay sum of Rs. 1,00,000 over and above the decretal amount to the judgment-debtor. It was clarified that the decree-holder shall not receive the decretal amount rather would get three Acres of land of the judgment-debtor transferred in his favour. Otherwise on payment of each amount of Rs. 1,00,000, four Kanals of land shall be kept on being released. The last line of the document reads as under:--

3. On 16-1-2003 the petitioner filed an application before the learned Additional District Judge informing that during the pendency of the execution petition, the respondents have entered into a compromise and the judgment-debtor has mortgaged three Acres of his land with the decree-holder and the matter has been disposed of on 4-7-2002 and in view of the said circumstances he be relieved. This application was resisted by the decree-holder. Vide order dated 4-6-2003 the learned Additional District Judge, Khanewal, dismissed this application.

4. It appears that thereafter another execution petition was filed and an application was made that proceedings be commenced against the petitioner surety. The learned Additional District Judge, Khanewal, vide order dated 5-4-2003 ordered the commencement of proceedings for attachment of the property of the petitioner. Against this order, the petitioner filed C.R. No.424 of 2004 in this Court. It was heard on 25-11-2004 and disposed of by this Court with the observation that the petitioner ought to have challenged the said order dated 4-6-2003.

5. Learned counsel for the petitioner respondent No.1 has put in appearance. Both the learned counsel are ready with their arguments. The civil revision is accordingly being decided as a pacca case.

6. Learned counsel for the petitioner contends that the order dated 4-6-2003 is void. The petitioner was not a party to the agreement entered into between the respondents and recorded by the Court and that because of the said change of circumstances, he is no longer bound by the terms of the said bond. Reliance has been placed on the cases of Jafar Khan v. Arbitration Board through Chairman, Arbitration Board Market Committee, Chishtian District Bahawalnagar and 2 others (1997 MLD 434), Dr. M.A. Qadir Khan v. The Bank of Bahawalpur Ltd. and another (PLD 1984 Karachi 211) and Federation of Pakistan v. National Bank of Pakistan, Karachi and another (1981 CLC 847). Learned counsel for the respondent No.1 on the other hand, vehemently urges that the civil revision is barred by time and that the time cannot be extended in terms of section 5 of the Limitation Act, 1908 because the said provision of law is not applicable since the limitation is prescribed not by the Limitation Act, 1908 but by the Code of Civil Procedure. He has, however, nothing to say on merits.

7. I have gone through the copies of the available records. I have reproduced above in detail the history of this case. To begin with upon a plain reading of order dated 2-2-2002 the surety bond was called for not for payment of the decretal amount but for assuring the presence of the judgment-debtor on each and every date of hearing. Be that as it may, somehow or the other a bond was, in fact, filed by the petitioner on 2-2-2002 undertaking that in case some claimant appears, the judgment-debtor will be liable to deposit the decretal amount in Court and if he fails to do so then the petitioner shall make the said deposit.

8. Now thereafter the respondents entered into an agreement Mark CA dated 15-6-2002. There is no denial that the petitioner was not a party to this agreement. There is not even an allegation or a finding recorded by the learned Additional District Judge that the consent of the petitioner was ever sought either by any of the respondents or by the Court qua the said arrangement for re-payment of the decretal amount entered into between the two respondents and endorsed by the Court. Now it will be seen that an elaborate arrangement was entered into. Three Acres of land were mortgaged by the judgment-debtor with the decree-holder. The agreement was that either the amount will be paid in the manner agreed and the land to be released proportionately or the entire land to be transferred by the judgment-debtor to the decree-holder upon receipt of Rs.1,00,000 over and above the decretal amount which, of course, stands adjusted against the price of the said land. Neither the petitioner was present nor he was summoned No notice was issued to him before recording the said proceedings. He promptly filed an application which was dismissed vide the impugned order.

9. In the said judgments being relied upon by the learned counsel, the principles contained, inter alia, in section 135 of the Contract Act, 1872, were held to be applicable in such-like circumstance and the surety was held to have been discharged.

10. The impugned order dated 4-6-2003 has been passed by the learned Additional District Judge, Khanewal, in complete oblivion of the said legal position and further the circumstances reflected on the record starting right from the order whereby the judgment-debtor was directed to be released on furnishing of surety bond. The order, therefore, squarely falls within the mischief of section 115, C.P.C.

11. Now coming to the said objection being raised by the learned counsel for the respondent. The limitation has been prescribed in the second proviso to section 115(1), C.P.C. I deem it appropriate to reproduce the same hereunder:-- "Provided that such application shall be made within ninety days of the decision of the Subordinate Court which shall provide a copy of the such decision within three days thereof, and the High Court shall dispose of such application within three months. " Now it will be seen that the proviso is rather composite. It provides for the following:-- (i) Such application shall be made within 90 days of the decision of the subordinate Court; (ii) the subordinate Court shall provide a copy of such decision within three days thereof; and (iii) the High Court shall dispose of such application within three months.

12. Now to my mind the said period of 90 days is subject to the provision of a copy of the decision by the subordinate Court within three days thereof, the duty imposed upon this Court stands disjuncted with an "and". I called upon the learned counsel for the respondents to state as to whether a copy of the said decision was provided to the petitioner by the subordinate Court within three days thereof. He is unable to state anything whereas the learned counsel for the petitioner of course, states that such a copy was not provided and he had to obtain the same from the Copying Agency. The subordinate Court having not complied with the said statutory directive, it cannot be said that the period of 90 days started running; more so when the limitation having been prescribed by section 115(2) second proviso C.P.C. section 29 of the Limitation Act, 1908, would become operative and as being argued by the learned counsel for the respondent, inter alia, section 5 thereof would not be applicable. Besides having examined the said records, I do find that the learned Additional District Judge has acted with material irregularity in the exercise of his jurisdiction while passing the said impugned order. The said objection, therefore, would not at all be formidable and would not be a hurdle in the way of this Court to pass an order in terms of E section 115, C.P.C. The civil revision accordingly is allowed. The impugned order dated 4-6-2003 of learned Additional District Judge, Khanewal, is set aside and the petitioner is discharged and relieved of the obligation under the said bond dated 2-2-2002. No orders as to costs. H.B.T./A-526/L Petition allowed.