2005 PLP 122 (MLD)

S. 47, O. XXI, R. 2 & O. XXIII, R. 3

Constitution of Pakistan (1973), Art. 199

Constitutional petition

Money decree

Execution-- Objection petition-- Adjustment of decree by Trial Court-- Compromise

Compromise entered and payment entered during pendency of the suit and prior to the passing of the decree, could be allowed to be adjusted by the Trial Court under O.XXIII, R. 3, C.P.C.

Such adjustment could not be made by executing Court-- Executing Court cannot assume the role of Trial Court

Objection petition alleging agreement and adjustment

Compromise before passing of decree, was rightly rejected by the executing Courts

No illegality or jurisdictional defect, having been found, Constitutional petition was dismissed. AIR 1938 Nagpur 265 ref. Sheikh Mubarak Ahmad for Petitioner. Asif Latif petitioner has invoked the jurisdiction of this Court under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 to challenge the orders dated 4-11-2003 and 6-4-2004 passed by the learned Civil Judge and learned Additional District Judge, Mian Channu, respectively whereby the objections filed by the petitioner-judgment- debtor to the execution of the money decree for the payment of Rs.22,500 dated 30-6-1997 obtained by the respondents-decree-holder were dismissed.

2. Facts necessary for the disposal of this petition are that on 3-7-1995 Abdul Hamid respondent filed a suit against the petitioner for the recovery of Rs.25,000 as damages. The petitioner-defendant initially contested the suit but after framing of the issues he absented himself on 19-6-1996. Consequently, the learned trial Court decided to proceed ex parte against the petitioner and after recording evidence, decreed the respondent-plaintiff's suit on 30-6-1996 against the petitioner to the extent of Rs.22,

500. The respondent filed an execution petition on 10-4-1998 which was dismissed on 17-12-2000 due to respondent's failure to deposit the process fee. He filed another execution petition on 26-3-2003. The petitioner-judgment-debtor filed an objection petition under section 47, C.P.C., inter alia, on the grounds that in view of the dismissal of the earlier execution petition the second execution petition was not competent which was otherwise barred by time and that as per agreement dated 6-4-1997 the petitioner had paid Rs.33,000 to the respondent before going abroad and in this way the respondent's claim had been satisfied by the petitioner before the passing of the decree. The Executing Court turned down the objections. The petitioner, feeling dissatisfied, challenged the order of the Executing Court dated 4-11-2003 before 'the Additional District Judge, which failed. Hence this petition.

3. Learned counsel for the petitioner argued that the petitioner's objection to the execution of the decree was based on written agreement executed by the respondent-decree-holder, which could not be summarily dismissed without allowing the petitioner to adduce evidence.

4. It may be noted that the agreement relied upon by the petitioner was allegedly executed during the pendency of the suit on 6-4-1997 and the petitioner could move the trial Court under Order XXIII, rule 3, C.P.C. for the adjustment of the suit. Under the scheme of the law, the payments made by the defendant during the pendency of the suit and prior to the passing of the decree may be allowed to be adjusted by the trial Court under Order XXIII, rule 3, C.P.C. This adjustment of the suit is distinguishable from the adjustment of the decree as contemplated under Order XXI, rule 2, C.P.C. The Executing Court under section 47, C.P.C. cannot assume the role of the trial Court and go behind the decree and examine its validity. Reference may be made to AIR 1938 Nagpur

265. The objection of the petitioner pertained to the adjustment of the suit touching the validity of the decree, which the Executing Court was not competent to examine, as, such, the' impugned orders do not suffer from any legal infirmity warranting interference by this Court in the exercise of Constitutional jurisdiction. This petition fails and is hereby dismissed. M.I./A-250/L Petition dismissed.