1982 PLP 195 (CLC)

That according to the judgment and decree passed by this Honour able Court the judgment‑debtor No. 2 is liable for the payment of a total sum of Rs. 7,030'64 (Rupees seven thousand and thirty and paisa sixty‑four only) inclusive of cost and interest in the following manner :‑ (a) Refund of Rs. 14,000 by Defendants Nos. 1 to 8: Rs. (i) Towards principal amount ... 1.400'00 (ii) Towards costs ... 158'06 (iii) Towards interest claimed ... 72'75 ... 1,630'81 (b) Payment‑liquidated damages of 14,509 by the defendants Nos. 1 to 3. (i) Towards damages ... 4,836'50 (ii) Towards costs ... 362'50 (iii) Towards interest claimed ... 200'83 5,399'83 Grand Total ... 7,030‑64"

4. Judgment‑debtor No. 2 has given evidence in this execution application. According to her statement (Exb. 3) her father died on 9‑11‑1962 and he left agricultural lands but she has not received any share in the lands, and that the immovable property which is sought to be attached in the present execution application is her self‑acquired property and that the cost of cons truction of her house was borne her through sale proceeds of her jewellery, loan of Rs. 50,000 from National Bank of Pakistan and a loan of Rs. 16,000 from House Building Finance Corporation. According to judgment‑debtor No. 2, installments of loan of the House Building Finance Corporation were still being paid by her and documents of title of the property were still with the Corporation. An issue had been framed on 29‑9‑1979 as to the value of the assets inherited by judgment‑debtor No. 2 from her father, Nawab Naseerud din. However it is an admitted position that the contract dated 5‑9‑1963 was entered into with judgment‑debtor No. 2 and others after the death of her father and she was a signatory to the contract. The liability of judgment g debtor No. 2 had arisen in view of this contract and not as an heir of Nawab Naseeruddin. The liability being personal, the aforesaid issue did not arise for determination of this execution application. It is, therefore, not necessary to give any finding on the said issue. 5. 1 have heard Mr. Syed Zafar‑ul‑Haq, learned counsel for judgment debtor No. 2 and Mr. S. H. Rizvi, learned counsel for the decree‑holder. According to Mr. Zafar‑ul‑Haq as judgment‑debtor No. 2 was only one of the co‑owners and her share in the estate of her father was 7/64 only coupled with the words "in proportion to their share inter se" employed in the decree of this Court, judgment‑debtor No. 2 is not liable for the entire sum of Rs. 14,000 mentioned in para. 1 of the decree.

6. I do not find any force in the contention of the learned counsel for the judgment‑debtor No.

2. Paras, 1 and 2 of the decree have been reproduced earlier in this order. In respect of the sum of Rs. 14,509 decreed as liquidat ed damages, no doubt liability of defendants Nos. 1 to 3 has been restricted "in proportion to their share inter se" but in respect of the sum of Rs. 14, decree (para. I of the decree) against defendants Nos. 1 to 8, no such restriction or liability has been placed. I am, therefore, of the view that defendants Nos. 1 to 8 are jointly and severally responsible for the payment of Rs. 14,001 decreed by para. 1 of the decree. Learned counsel for judgment‑debtor No. bad relied upon section 42 of the Contract Act, 1872. This provision of the Contract Act is of no assistance to the case of judgment‑debtor No.

2. On the contrary it goes against the contention of learned counsel.

7. The result is that the objections filed by judgment‑debtor No. 2 are dismissed. Judgment‑debtor No. 2 is liable for the payment of Rs. 14,000 under para. 1 of the decree and one‑third of the amount of Rs. 14,509 under para. 2 of the decree. She is also liable for interest on these amounts and for costs in accordance with the decree. To this extent and subject to the amounts already deposited the execution application has to be granted. The balance amount due under the decree and payable by judgment‑debtor No. 2 will be paid by judgment‑debtor No. 2 in monthly installments of Rs. 1,000 commencing from April, 1981 payable on or before 15th of each month. In case of default in the payment of any instalment execution will issue as prayed by the decree‑holder. Judgment‑debtor No. 2 will not sell the property mentioned in the execution application till the decretal amount that is payable by her is fully paid. K. M. A. Order accordingly.