1986 PLP 1657 (CLC)

‑‑‑S . 115‑‑Revisional jurisdiction, exercise of‑‑Executing Court returning execution application to Court which had sent same for execution for want of jurisdiction‑‑Such executing Court subsequently could not allow fresh execution application‑‑First appellate Court, however, in appeal could declare same to ,be without jurisdiction and return papers thereof, to decree‑holder to be presented in proper Court‑‑First appellate Court's finding to dismiss same as time‑barred being without jurisdiction, held, could be interfered with by High Court in revisional jurisdiction. A . Matin for Applicant. A. Moneem Khan for Respondent. Dates of hearing: 19th and 25th February, 1985. This revision application is filed against the order of Vth Additional District Judge, Karachi dated 17‑2‑1975, whereby he reversed the judgment of executing Court granting the 3rd execution application of petitioner and dismissed the execution application on the ground that the original execution application filed by the applicant was hopelessly time‑barred. The following facts may be stated here in brief which are not in dispute. The applicant/decree‑holder instituted Suit No.116 of 1960 against the respondent for recovery of a sum of Rs.51,218 before the Sub‑Judge First Class Hyderabad. A compromise decree was passed in the above suit in favour of petitioner in the sum of Rs.47,475 on 19‑10‑1960. The consent decree provided for payment of the decretal amount within a period of 18 months and it was further provided that until expiry of 18 months no execution could be filed by the petitioner/decree‑holder. Out of the decretal amount, the respondent paid only a sum of Rs.22,000 during the period of 18 months while a sum of Rs.25,596 remained outstanding against him. The petitioner filed Execution Application No.778/64 on 4‑8‑1964 before the Sub‑Judge at Hyderabad and prayed for its transfer under section 39, C.P.C. to a Court at Karachi for execution against the respondent/judgment‑debtor. The learned Sub‑Judge, Hyderabad, transferred the decree to the District Judge, Karachi for execution which was assigned to VIth Senior Civil Judge Karachi by the order of learned District Judge dated 18‑3‑1963. This execution application was dismissed by the VIth Senior Civil Judge, Karachi for default on 18‑9‑1967. Thereafter, the petitioner filed another Execution Application bearing No. F C D 2/68 before VI Senior Civil Judge on 5‑11‑1967. The second application according to petitioner was consigned to record by the Court and, therefore, a 3rd Execution Application No. FCD 8/1971 was filed by him before the same Court which was granted. The learned counsel for the respondent on the other hand has pointed out that by order dated 26‑2‑1970 passed in FCD 2/1968 the executing Court returned back the decree and other papers to the original Court at Hyderabad on the ground that. the Court at Karachi had no jurisdiction to execute the decree passed by that Court. This position is conceded by the learned counsel for the petitioner. The order dated 26‑8‑1970 passed by the executing Court in F C D No.2/68 reads as follows:‑ "26‑8‑1970: I have heard the learned counsel for the parties. Today the counsel for the decree‑holder conceded that it is beyond the pecuniary jurisdiction of this Court to execute the decree. Since this Court has no jurisdiction the document received from the Court be sent back alongwith non‑satisfaction certificate. The file of this Court be consigned to record. The attachment order by this Court is withdrawn." It appears that after passing of the above order, on 15‑7‑1971 the Advocate of the decree‑holder filed an application before the executing Court (Vlth Civil Judge Karachi) attaching several documents mentioned at the foot of the application with a prayer that these documents may be sent to the District Judge Karachi or the same may be kept on record to enable the decree‑holder to file fresh execution application. Thereafter, another application was made by the decree holder's Advocate on 7‑8‑1971 to the executing Court praying that since the execution application was assigned to that Court by the District Judge, Karachi, the document filed alongwith the application dated 15‑7‑1971 may be forwarded to the District Judge, for onward transmission to the Court at Hyderabad. The application dated 7‑8‑1971 was granted by the executing Court/VIth Civil Judge. First Class, Karachi and in pursuance thereto a letter was addressed to the District Judge, Karachi, forwarding the result of execution proceedings alongwith a non‑satisfaction certificate with the "request" to transmit the same to the concerned Court at Hyderabad. It appears that notwithstanding the above proceedings the petitioner submitted a fresh execution application to the executing Court at Karachi (F C D 8/71) on 22‑10‑1971 which was allowed by the Court and an attachment order was issued. The respondent/Judgment‑debtor preferred an appeal against the attachment order issued in F C D 8/71 which was allowed by the Ist appellate Court holding that the original application for execution filed by petitioner was time‑barred and as such the subsequent execution applications were not maintainable. Against the above order passed by the 1st appellate Court the petitioner has now come‑ in revision. I have heard the learned counsel for the petitioner and respondent at length. It is an admitted position that prior to 21‑12‑1970 when the Karachi Court Order 1956 was amended by Ordinance XIII of 1970 the pecuniary jurisdiction of the civil Courts at Karachi was only upto Rs. 25, 000 which was enhanced to Rs.50, 000 under the aforesaid amendment. It is also common ground between the parties that the execution application sent to the executing Court at Karachi by the Sub‑Judge, Hyderabad could not be entertained by the Court at Karachi as it had" no pecuniary jurisdiction at that time in the matter. In this admitted background it is quite clear that the order of dismissal of Ist execution application by the executing Court/VIth Civil Judge Karachi in default, was an order without jurisdiction. This aspect of the case is however not of much significance now in view of the order of executing Court dated 26‑9‑1970 passed in F C D 2/1968 whereby the mistake was corrected and realizing the correct legal position, it directed return of all papers to the Court at Hyderabad, which had sent the decree for execution at Karachi. The learned counsel for the applicant pointed out from the R & P of Execution No.8/71 that the original letter of executing Court forwarding the non‑satisfaction certificate and other connected papers to the District Judge are still lying in that file and they have not yet been sent to the Court at Hyderabad. This lapse in the performance of ministerial duty by the office of District Judge, Karachi' could neither affect the legal position in the case nor it could change the fate of the case. The fact remains that in view of the order of executing Court dated 26‑9‑1970 directing return of the decree and other papers to the Court at Hyderabad for want of jurisdiction there was no further jurisdiction in the executing Court at Karachi to entertain the 3rd execution application of petitioner and allow the same. The Ist appellate Court, therefore, could only interfere with the order of executing Court dated 25‑3‑1972 only to the extent of declaring ii as an order without jurisdiction and ordering for return of execution application to decree‑holder for presentation to proper Court. The first appellate Court however, could not have dismissed the execution application of petitioner as time‑barred and should have left the question to be dealt with accordingly to law by the Court at Hydrabad to which the decree and other connected papers were returned by the executing Court at Karachi on the ground of absence of jurisdiction. I accordingly accept this Revision Application but set aside both the orders of executing Court dated 25‑3‑1972 and that of 1st appellate Court dated 17‑2‑1975. The Courts below are directed to comply the order of executing Court dated 26‑9‑1970 passed in F C D No.2 of 1968 without any further delay. The Execution Application No.F C D 8 of 1971 will be returned to petitioner by the executing Court. A.A., Order accordingly.