Execution

Suit for declaration was filed by respondents/plaintiffs challenging notice issued by petitioners / Local Government relating to enhancement of rent/ lease amount

Trial Court decreed the suit and during execution of decree, petitioner / Local Government offered to issue fresh lease contract

Respondents/ plaintiffs objected to issuance of fresh lease

Executing Court and Lower Appellate Court allowed objections of respondents / plaintiffs

Validity

In the present case the consent decree was not executable

Decree passed in favour of respondents / plaintiffs was a nullity in the eye of law and its operation ran contrary to express provisions of law

High Court in exercise of Constitutional jurisdiction set aside orders passed by two Courts below and relief was moulded to the effect of giving declaration, that judgment and decree of Trial Court could not be executed against express provisions of law i.e. S.124 of Khyber Pakhtunkhwa Local Government Ordinance, 2001 and S.40 of Khyber Pakhtunkhwa Local Government Act, 2013

Constitutional petition was allowed accordingly.

Power of attorney is an instrument in writing, conferring authority or power by a principal to his attorney to do certain acts in a specific and limited manner

In the disputed general power of attorney, no specific powers were given by the principal/father to his attorney/his son to gift his land to attorney's wife/defendant by clearly specifying the name of donee and the power of attorney was also not clearly indicating/conveying the principal's knowledge, intention and consent for making gift of his land to his attorney's wife/principal's daughter-in-law

Generally an attorney cannot utilize the powers conferred upon him to transfer the property to himself or his kith and kin, without special and specific consent/permission of the principal and in case of gift transaction, more strict conditions have been attached for proving the gift made by an attorney as a valid gift transaction because being voluntary and gratuitous, gift reflects the personal sentiments of love, affection, kindness and compassion of donor for the donee or sometimes sentiments due to personal services rendered by the donee to the donor and personal sentiments of donor/principal cannot be expressed by an attorney on behalf of donor, therefore, the process of making valid gift must preferably be initiated and completed by the donor himself with the exception that the attorney may gift the property on the express permission and instructions of his principal

Strong personal sentiments of donor must necessarily be directly established in gift transaction in clear terms through pleadings and irrefutable evidence because alleged donor had allegedly deprived his daughter/plaintiff from his land

Civil Revision, filed by the defendant, was dismissed, in limine.

Assertion of the plaintiffs/petitioners was that transaction of sale was settled with the defendant / respondent and agreement and receipt were scribed, yet said stance was strongly controverted by the latter while raising serious allegations with regard to its genuineness as well as transaction detailed therein

Plaintiffs were concurrently non-suited

Contention of the petitioners / plaintiffs was that as per desire of the very defendant /respondent, his signatures over alleged agreement and receipt were compared with through an expert, thus no further proof was required to establish their construction as well as veracity

Validity

Record revealed that though the disputed documents were referred to the Forensic Lab for comparison, which after some drill-work submitted positive Report, but admittedly its maker was not called for to prove the same, which per se was not admissible and was rightly ignored from being taken into consideration by the fora below

Moreover, it is always risky to base the findings of genuineness of writing or signature on expert's opinion, because such like report cannot be taken as conclusive proof

Even otherwise, a document not part of judicial record can only be proved by examining direct affirmative evidence and any secondary or other mode cannot be taken as a substitute to the former mode of proof, thus the alleged report was of no help to the petitioners

No material irregularity/illegality as well as jurisdictional defect or mis-reading of evidence was found in the impugned judgments of two Courts below ;thus , no case of interference was made out

Revision filed by plaintiffs , being merit-less, was dismissed in limine.

Assertion of the plaintiffs was that transaction of sale was settled with the defendant / respondent and agreement and receipt were scribed, yet said stance was strongly controverted by the latter while raising serious allegations with regard to its genuineness as well as transaction detailed therein

Plaintiffs were concurrently non-suited

Validity

Onus was upon the petitioners / plaintiff to prove the alleged sale and due construction of their hub documents per scheme of law

As alleged agreement and receipt (exhibited by plaintiffs) involved future obligation and financial liability, thus same were to be executed under mandate of Art. 17 of the Qanun-e-Shahadat, 1984 ('the Order 1984') and it was sine qua non for the beneficiary/petitioners to prove the same according to mode provided in Art. 79 of the Order, 1984

Although said two documents at the time of its scribe per spirit of Art. 17 of the Order, 1984 were attested by two persons being marginal witnesses, yet surprisingly ,one of them despite availability was not examined, thus compulsory requirement of Art. 79 was not followed, which requirement is mandatory and without strict compliance thereof any such document (entailing future obligation or financial liability) cannot be used in evidence

Nothing short of two attesting witnesses can even be imagined for proving sale contract, besides testimony of scribe cannot be used to consider it as statement of marginal witness

No material irregularity/ illegality as well as jurisdictional defect or mis-reading of evidence was found in the impugned judgments of two Courts below; thus, no case of interference was made out

Revision filed by plaintiffs, being merit-less, was dismissed in limine.

Claim of the plaintiffs/petitioners was that transaction of sale was settled with the defendant / respondent and agreement and receipt were scribed, yet said stance was strongly controverted by the latter while raising serious allegations with regard to its genuineness as well as transaction detailed therein

Plaintiffs were concurrently non-suited

Contention of the petitioners/ plaintiffs was that second marginal witness was not examined as he was closely related to the alleged vendor (defendant/respondent) and if produced, he would have deposed in his favour, thus for such risk his withholding was justified

Validity

Mandatory provisions of law has to be complied and fulfilled and only for the reason or the perception that such attesting witness if examined may turn hostile does not absolve the concerned party of its duty to follow the law and allow the provisions of Arts. 17 & 79 the Qanun-e-Shahadat, 1984, relating to hostile witness to take its own course

Thus, for any risk, mandatory requirement of law cannot be avoided

No material irregularity/illegality as well as jurisdictional defect or mis-reading of evidence was found in the impugned judgments of two Courts below; thus , no case of interference was made out

Revision filed by plaintiffs , being merit-less, was dismissed in limine.

Financial impact on other creditors or depositors does not override the legal entitlement of the decree-holder to seek enforcement

Judgment debtor's financial distress cannot serve as a justification to deny the legitimate enforcement of the debt.

Financial impact on other creditors or depositors does not override the legal entitlement of the decree-holder to seek enforcement

Judgment debtor's financial distress cannot serve as a justification to deny the legitimate enforcement of the debt.

Respondent (vendee) paid earnest money and possession was handed over to him, with the remaining sale consideration to be paid in instalments

Despite full payment, the title was never transferred, constraining the respondents (vendees) to institute a suit for specific performance

The appellants (vendors) contested the suit, claiming that the respondents (vendee) were tenants and that the suit was barred by limitation

Suit was decreed by the Single Judge against which present appeal was instituted

Held: In evidence the respondents (vendees) submitted relevant receipts of payments of sale consideration to the appellants (vendors) and all such receipts were on the letter head of the company being run by appellants (vendors) and were signed by its late proprietor and he was the same person who had signed the agreement to sell

Regarding the signature of the late proprietor/signatory, the respondents (vendees) had got the same examined from the handwriting expert in terms of Art. 84 of Qanun-e-Shahadat, 1984

Said expert deposed positively that the receipts contained signatures of late proprietor who had also signed the agreement to sell

Such receipts were in bulk amount and could not be considered mere payments of rent by respondents (vendees)

Only ground taken by appellants (vendors) to defeat validity of such receipts was that they did not bear any date

Mere non-mention of date on the receipts did not invalidate the same or made them redundant in the eyes of law when otherwise contents thereof were established and the payments made through them were not specifically rebutted or refuted by the appellants (vendors) except the plea that they were made in respect of rent regarding which no evidence was put forth

The benefit of S. 53-A of the Transfer of Property Act, 1882 was also available to the respondents (vendees) as they were put in possession at the time of sale agreement

Single Judge while decreeing the suit took into consideration all pieces of evidence adduced by parties, implication of relevant laws such as Art. 113 of Limitation Act, 1908 and S. 53-A of Transfer of Property Act, 1882 and concluded, duly supported by reasons, in favor of the respondents (vendees) and there was no justification to reverse the same

Appeal being without merit, was dismissed, in circumstances.

Banking Court by applying the provisions of S. 24 of the Financial Institution (Recovery of Finances) Ordinance, 2001, dismissed the execution petition filed by the bank /appellant on the ground that the same was filed after lapse of more than 09 years while appeal was pending

Validity

Financial Institutions (Recovery of Finances) Ordinance, 2001, is a special law which covers all proceedings upon execution

Previous law i.e. Banking Companies (Recovery of Loans , Advances, Credits and Finances) Act, 1997, enabled the Banking Court to convert the proceedings into execution application on preferring an application

Whereas the frame of the Financial Institutions (Recovery of Finances) Ordinance, 2001, is different as its S.19 provides that upon announcement of judgment and decree, the suit shall automatically convert into execution application

Thus, no sooner the judgment and decree is passed in proceedings under the Financial Institutions (Recovery of Finances) Ordinance, 2001, the proceedings stand converted into execution application

Financial Institutions (Recovery of Finances) Ordinance, 2001, does not provide a way to file a fresh execution application, as was inadvertently done in the present case by the appellant/Bank

At the most, since an appeal was pending before the High Court and the machinery of the execution was not triggered, the application that was inadvertently moved as an execution application by the bank/appellant could be considered for triggering machinery of the Banking Court, where the suit was decreed and converted into execution application

Surprisingly, the Banking Court did not discuss S.19 of the Financial Institutions (Recovery of Finances) Ordinance, 2001

Thus, S. 24 of the Financial Institution (Recovery of Finances) Ordinance, 2001 can not be conceived to have its application on the execution proceedings as the suit proceedings automatically stand converted into execution, leaving no room for limitation

Since the Financial Institutions (Recovery of Finances) Ordinance, 2001 does not recognize the scheme of filing fresh execution application, High Court referred the matter to the Banking Court in order to club the execution application with suit which will be deemed to be converted into execution

Appeal filed by the Bank/decree-holder was allowed accordingly.

Petitioner / judgment debtor was aggrieved of dismissal of his application by Trial Court for recovery of decretal amount in instalments

Validity

Application made by petitioner / judgment debtor for allowing him to discharge liability of decretal amount through 36 equal monthly instalments was not competent under O.XX, R.11, C.P.C

According to O. XX, R. 11(1), C.P.C, for any sufficient reason at the time of passing the decree, Trial Court had a discretion to order that payment of the amount decreed would be made by defendant (judgment debtor) by installments

Executing Court under O. XX, R.11(2), C.P.C., had power of similar nature to make an order, on the application of judgment debtor that payment of the amount decreed would be made by installments but not without the consent of decree holder

High Court declined to interfere in the order passed by Trial Court as the same was well reasoned

Petitioner / judgment debtor failed to deposit decretal amount before the Executing Court and filed baseless petition to deprive respondent / decree holder from the fruits of decree

Revision was dismissed, in circumstances.

Impugned order was not an interim order rather was an order which fell within the definition of word "decision" as prescribed by S. 14(1) of the Family Courts Act, 1964

Vide impugned order, the Executing Court had over-ruled the objections of the petitioner and had allowed the execution application made by the respondent

Executing Court had finally decided the execution application and objections of the petitioner, therefore, the petitioner was required to avail his remedy of appeal under S. 14 of the Family Courts Act, 1964

Section 14 of the Family Courts Act, 1964, prescribes an alternate, effective and exhaustive remedy in the form of a substantive right of appeal to a party who feels itself aggrieved from the decision or a decree passed by a Family Court

Remedy of appeal and the forum thereof had debarred the petitioner from directly approaching the High Court in constitutional jurisdiction

Section 14 of the Family Courts Act, 1964, apart from prescribing a statutory right of appeal, also provides a forum in the form of District Court

Such right of appeal is not without an adequate remedy

Jurisdiction, under S. 14 of the Family Courts Act, 1964 and under Article 199 of the Constitution are not concurrent, therefore, the petitioner should have availed the prescribed remedy of appeal before approaching the High Court under Article 199 of the Constitution

Constitutional petition was dismissed.

Petitioners were aggrieved of refusal of respondent to vacate portion of suit property in her possession, in the light of preliminary decree passed by Trial Court

Plea raised by respondent was that she had retained possession in lieu of partition of agriculture land still to be partitioned

Trial Court and Lower Appellate Court declined to deliver possession to petitioners

Validity

Fact that agriculture land remained to be partitioned or sold had no co-relation to settlement and distribution of shares in relation to other properties that had formed part of partition suit

Preliminary decree was a final decree in relation to properties in relation to which respective shares stood distributed between co-sharers

Merely because it was a preliminary decree in relation to agriculture land that remained to be distributed and/or sold did not make such decree a preliminary decree in relation to properties, the distribution of which had already taken place and constituted a matter that required no further adjudication

High Court directed the respondent to hand over possession to petitioner and set aside orders passed by Trial Court and Lower Appellate Court

High Court declared that petitioners were entitled to receive rent from respondent to be determined by Executing Court for the period respondent declined handing over of the possession till such possession would be handed over

Revision was allowed, in circumstances.

High Court under Art.187 of the Constitution was duty bound and it was the duty of executing Court under Art. 190 of the Constitution to ensure implementation of judgment of Supreme Court

Deeming clause had been introduced with the aim to consider filing of the applications for execution before the executing Court as valid and according to law.

Petitioner contended that such applications could not be maintained as it had not been filed after getting authorization from High Court as required under O. XLV, R. 15 of Code of Civil Procedure, and that limitation was to commence from authorisation in terms of said Rule

Validity

While disposing of the earlier objection of petitioner, High Court had employed a deeming clause for validating the two applications from the date of its filing

Same had been ordered to be deemed to have been sent to the executing Court for execution under R. 15 of O. XLV of C.P.C.

When time could be relaxed (under S.14 of the Limitation Act, 1908) on the ground of pursuing a remedy before a wrong forum, then an action initiated before a competent Court of law but suffering from some technical defect might easily be considered to be proceedings valid for the purpose of counting the period of limitation

Irregularity could not come in the way of counting the period of limitation

Application for execution filed directly before civil Court could not be considered to be totally non est and non-considerable for the purpose of determining the question of limitation

Execution applications filed without compliance of the provision of O. XLV, R. 15, C.P.C. to be taken as sufficient for the purpose of bringing the pending proceedings within the prescribed period of limitation

Revision petition was dismissed accordingly.

Another respondent allegedly was owner of suit property prior to the institution of suit, filed objection petition and application for cancellation of sale deed before Executing Court

Executing Court accepted objection petition, cancelled registered sale deed and dismissed the execution petition

Petitioner's appeal was also dismissed by appellate Court

Validity

Admittedly, said one of the respondent was owner of Ahata (measuring 8 marla, 1 sarsohi), who sold portion (4 marla 2 sarsohi) to the petitioner

Petitioner filed suit for specific performance against said respondents on who submitted consenting written statement

Trial Court decreed the suit

One of the alleged purchasers of the said Ahata for consideration from said one of the respondents through allegedly registered power of attorney executed by said respondent in his favour, alienated portion of said Ahata measuring 4 marla 2-sarsohi in favour of the respondent who got executed an oral sale mutation sanctioned prior to institution of petitioner's suit

Executing Court executed sale deed in favour of petitioner and possession of decretal property was also transferred to him on

Said respondent moved objection petition and also moved application for cancellation of said sale deed before Executing Court

Executing Court, without framing issues and recording evidence, accepted the petition/application dismissing the execution petition of petitioner and setting aside the sale deed

Mutation sanctioned in favour of said respondent, which was prior to the institution of the suit by petitioner on basis of agreement to sell, but such agreement to sell was executed prior to the sanction of said mutation

Said mutation had not been incorporated by said one of the respondents (original owner) himself but through general attorney having power of attorney executed on date after the date of execution of said agreement to sell and in a city other than the city where property situated

Facts of the purchase of property by said respondent from alleged seller, for alleged consideration, and execution of power of attorney by original owner in favour of such seller were not established on record which required evidence

Said respondent had every knowledge of decree (of Trial Court) as he himself challenged that decree by way of application under S.12(2) of Civil Procedure Code, 1908

Question of limitation was also relevant

All questions could not be resolved without recording of evidence

Executing Court had to frame necessary issues to have recourse to evidence to resolve the factual controversy

Executing Court summarily accepted the assertions made by said respondent on extraneous consideration/personal assumptions

Revision petition was allowed, impugned orders of Courts below were set aside, and execution petition, objection petition, and application for setting aside sale deed were deemed pending before the Executing Court.

Objections as to the non-executability of decree related to execution of decree and court would be clearly barred from considering the same under the provisions of R. 23A, O. XXI, C.P.C. unless the judgement debtor deposited the decretal amount in the court or furnished the security for its payment

Impugned order passed by executing Court was just, proper and within the four corners of law

Appeal being not maintainable was dismissed accordingly.

Section 47, C.P.C. barred separate suit where question was within the scope of the section that a court was barred from considering such objections, unless judgment debtor makes compliance of R. 23A of O. XXI, Civil Procedure Code, 1908 by depositing the decretal amount in Court or furnishes security for its payment.

Petitioner through contempt petition sought implementation of order dated 17-04-1985, by which he was declared to be a regular and permanent employee of the establishment, and establishment was directed to treat and allow petitioner all the rights and facilities of such an employee

Contention of petitioner was that due to suspension of the order dated 17-04-1985 by the High Court, he could not file the contempt petition

Validity

No application for condonation of delay was filed

Writ petition was dismissed by the High Court on 23-11-1994 whereas contempt petition was filed on 26-06-2012

Time limit for execution of decree was six years as provided in S.48 of the Civil Procedure Code, 1908

Contempt petition was not moved within time rather it was hopelessly barred by time, therefore, dismissed.

Petitioner through contempt petition sought implementation of order dated 17-04-1985, by which he was declared to be a regular and permanent employee of the establishment, and establishment was directed to treat and allow petitioner all the rights and facilities of such an employee

Contention of petitioner was that due to suspension of the order dated 17-04-1985 by the High Court, he could not file the contempt petition

Validity

No application for condonation of delay was filed

Writ petition was dismissed by the High Court on 23-11-1994 whereas contempt petition was filed on 26-06-2012

Time limit for execution of decree was six years as provided in S.48 of the Civil Procedure Code, 1908

Contempt petition was not moved within time rather it was hopelessly barred by time, therefore, dismissed.

Execution is enforcement of a decree by a judicial process which enables decree holder to realize fruits of decree and judgment passed by competent Court in his favour.

Respondents had sought the execution of order passed by the Appellate Court and not the judgment and decree passed by the Trial Court

Appellate Court while disposing of the appeal did not pass any decree

Respondents could apply to the Appellate Court to pass a decree in the terms of the compromise between the parties

Once a decree was passed then Executing Court could continue with the execution proceedings

Judgment and decree passed by the Trial Court had been replaced through compromise between the parties

Order passed by the Appellate Court recording the compromise between the parties had not been assailed by the applicants

Respondents could not be compelled to institute a fresh suit for enforcement of terms and conditions of the compromise

Revision was dismissed in circumstances.

Judgment debtor was aggrieved of sale of property during proceedings for execution of decree in presence of stay order granted by Revisional Court

Plea raised by judgment debtor was that auction purchase did not deposit 25% of sale price at the spot and failed to deposit 75% of sale price within 15 days

Validity

Application of auction purchaser to deposit remaining 75% amount was kept pending and after order passed by revisional court, he was allowed to deposit remaining 75% amount which was accordingly deposited

Auction purchaser did not violate provisions of O.XXI, Rs.84 & 85, C.P.C.

Judgment debtor in concurrent findings recorded by two Courts below could not point out any jurisdictional defect, material irregularity or misreading and non-reading of record warranting interference by High Court in its revisional jurisdiction

Revision was dismissed in circumstances.

During execution proceedings, judgment debtors filed application under S. 47, C.P.C., seeking modification of decree on the ground that it did not provide date of default

Executing Court decided application and held that date of passing of decree was date of default

Plea raised by judgment debtors was that order passed by Executing Court was in violation to S.27 of Financial Institutions (Recovery of Finances) Ordinance, 2001

Validity

Any interpretation of decree made by Executing Court under S. 47, C.P.C., was to be made in accordance with mandatory provisions of S. 17 of Financial Institutions (Recovery of Finances) Ordinance, 2001

Any other interpretation made while contravening mandatory provision of S. 17 of Financial Institutions (Recovery of Finances) Ordinance, 2001 was a nullity

Executing Court while passing order in question admitted such fact that Banking Court while passing initial order, date of default mentioned in plaint completely escaped from its notice

Order under appeal passed by Executing Court could be termed as retracing of steps by Banking Court in accordance with law

High Court declined to interfere in execution proceedings

Appeal was dismissed under circumstances.

Provision of Art. 183 of Limitation Act, 1908, is only applicable when judgment and decree of any High Court is passed in exercise of its ordinary original civil jurisdiction but not where decree is passed in original civil jurisdiction.

Judgment debtor assailed second execution application on the plea that it was filed beyond period of six years from the date of decree

Validity

Jurisdiction of High Court under Financial Institutions (Recovery of Finances) Ordinance, 2001, was original civil jurisdiction and not ordinary original civil jurisdiction, therefore, provisions of Art. 183 Limitation Act, 1908, were not attracted

Provisions of S. 48(1)(b), C.P.C. were not applicable and period of limitation for filing second execution application was not calculated from the date of decree under S. 48(1)(a), C.P.C.

Second execution application to execute judgment and decree was barred by limitation for period of 3 years 11 months and 21 days

Execution application was dismissed in circumstances.

Held, in order to be successful in objections it was inevitable that not only irregularity but material irregularities had to be established leading to fraud which could eventually end up at a substantial loss, as far as judgment debtor was concerned

Judgment debtor did not move application either in terms of O. XXI, R. 89 or 90, C.P.C. purposely and just objected in the shape of affidavit, as either the case was not made out within the parameters of Rr. 89 & 90 of O. XXI, C.P.C. or judgment debtor did not want to entangle itself in the recourse of requirements of such Rules

Judgment debtor failed to substantiate as to what rights were being infringed, the relaxation and restoration of which could enable him to assert the rights

Judgment debtor never objected to de novo re-auction order and fresh public notice which was ordered to be issued which was for a shorter date

High Court declined to interfere with the auction proceedings as urge to claim notice as to terms of such sale proclamation was a futile attempt in such regard

Sale was confirmed by the High Court in favour of auction purchaser in circumstances.

Money decree was passed in a suit between decree holder and judgment debtor who had a dispute over a shop in the building owned by applicant, a charitable trust

During execution proceedings applicant sought setting aside of judgment and decree under S. 12(2), C.P.C., and also sought vacant position of shop in question by ejecting decree holder

Tenancy of judgment debtor was on basis of goodwill therefore, judgment debtor could have sold his tenancy rights subject to 'Parchi Badal' or change of receipt by landlord

Applicant despite being served never came before Court with any plea to the effect that subject premises was not on goodwill basis and after expiry of agreement between applicant and judgment debtor, tenancy had ended

Case of applicant did not fall within contemplation of S. 12(2), C.P.C., as neither any fraud was committed with court nor any misrepresentation was made

Applicant despite being served and having knowledge of proceedings failed to plead his case

Even another person claiming to be a new tenant in the suit shop also made an attempt before court to get orders modified as was being pleaded by applicant

Application was dismissed in circumstances.

Provisions of R. 5(9)(b) of Rules of Business, 1973, fix responsibility upon the Secretary being Head of Ministry for efficient administration and discipline as well as due execution of sanctioned policy.

Appellant sought setting aside of sale in execution of decree on the plea that during proceedings under S.12(2), C.P.C. a compromise had been reached whereby decree was reversed

Validity

Decree could be reversed effectually through a compromise only when person in whose favour certain rights were created as a result of execution of decree, was willing to forego his rights and was made party in proceedings culminating in compromise

Private agreement between parties to reverse decree during pendency of appeal filed against dismissal of application under S. 12(2), C.P.C. could not be presumed to have actually varied or reversed decree, notwithstanding the fact it was incorporated in court's order

No action was taken within the prescribed period of 30 days in terms of Art. 166 of Limitation Act, 1908, by a party competent to do so, hence filing of application by appellant, that was after a long time, which ex facie was time barred never merited consideration on merits

Division Bench of High Court declined to interfere in the matter

Intra court appeal was dismissed in circumstances.

Section 19(2) of Financial Institutions (Recovery of Finances) Ordinance, 2001, provided that the decree of the Banking Court shall be executed in accordance with the provisions of the Code of Civil Procedure, 1908, or any other law for the time being in force or in such manner as the Banking Court may, at the request of the decree-holder, consider appropriate including recovery as arrears of land revenue

Court had the discretion to adopt any of the said modes but once the court opted to execute the decree in accordance with the provisions of the Code of Civil Procedure, 1908, it could not depart therefrom.

Section 19(2) of Financial Institutions (Recovery of Finances) Ordinance, 2001, provided that the decree of the Banking Court shall be executed in accordance with the provisions of the Code of Civil Procedure, 1908, or any other law for the time being in force or in such manner as the Banking Court may, at the request of the decree-holder, consider appropriate including recovery as arrears of land revenue

Court had the discretion to adopt any of the said modes but once the court opted to execute the decree in accordance with the provisions of the Code of Civil Procedure, 1908, it could not depart therefrom.

Petitioner filed application under Ss. 38 & 47, C.P.C. challenging mutation on ground that revenue authorities had illegally sanctioned the mutation under judgment and decree passed in suit for pre-emption, which had already become in-executable due to afflux of time and for which no formal execution had ever been filed

Both trial court and appellate court dismissed the application on ground of non-maintainability

Validity

Decree-holder in suit for pre-emption on deposit of decretal amount, in term of O. XX, R. 14, C.P.C., became absolute owner of suit property, and such ownership would remain operative and intact even if such decree was not put to execution

Revenue officer was under statutory duty to implement such decree in revenue record even if execution petition had become time-barred

Sanction of mutation could be made on basis of pre-emption decree without resorting to execution proceedings

Executing court in such matters would only be involved in case judgment-debtor had failed to deliver possession of land in pursuance to such decree, and in such case, executing court would be required to deliver possession by issuance of warrant of possession

Pendency of application for execution of decree was not sine qua non for filing objection petition under S. 47, C.P.C.

Judgment and decree of appellate court was set aside and case was remanded to appellate court for fresh decision

Revision was allowed in circumstance.

Application filed by defendant under O.XI, R.2, C.P.C. read with S.151, C.P.C. for administering interrogatories on plaintiff for examination and reply thereof was dismissed by Single Judge of High Court

Validity

Matters already decided and adjudicated by foreign courts were conclusive, definitive and irrefutable in nature and could not be re-opened except as provided under the exceptions of S.13 C.P.C.

Interrogatories were meant to ascertain facts which were not so disclosed in plaint

Scrutiny of facts was out of the ambit of S.13 C.P.C., therefore, such interrogatories had no role in a suit filed on the basis of foreign judgment and decree under S.13, C.P.C.

Defendant had chosen to continue with its case only on the basis of foreign judgment and decided to forego its claim on original cause of action, then defendant was not to lead any evidence in the matter, as according to defendant foreign judgment was conclusive in its own nature

Only case remained was adjudication of it with respect to six exceptions available to defendant under S.13, C.P.C.

No evidence was available and consequently question of any interrogatories did not arise as facts were not to be ascertained anymore and the only legal issues (on the basis of six exceptions) were to be decided and no interrogatories could be administered on plaintiff

Division Bench of High Court declined to interfere in order passed by Single Judge of High Court

Intra Court Appeal was dismissed in circumstances.

Executing Court could not go beyond decision in original judgment and decree.

Suit filed by plaintiff was dismissed by Trial Court on the ground that he failed to produce two marginal witnesses in proof of execution of agreement to sell

Judgment and decree passed by Trial Court was maintained by Lower Appellate Court and High Court

Validity

Transaction of sale of immovable property (if not a conditional sale) was the conclusive transfer of an absolute title and ownership of property unto the vendee in presentee, while agreement to sell was meant for accomplishing the object of sale in futurity and for all intents and purposes it pertained to future obligations of the parties thereto

Sale agreement/agreement to sell was. duly covered and fell within the pale of Art.17 of Qanun-e-Shahadat, 1984

Purpose and object of attestation of document by certain number of witnesses and its proof through them was meant to eliminate the possibility of fraud and purported attempt to create and fabricate false evidence for the proof thereof and thus legislature in its wisdom had established class of documents which were specified in Art.17 of the Qanun-e-Shahadat, 1984

For validity of instruments falling within Art.17 of Qanun-e-Shahadat, 1984, the attestation as required therein was absolute and imperative

For the purpose of proof of such a document, attesting witnesses had to be compulsorily examined as per requirement of Art.79 of Qanun-e-Shahadat, 1984, otherwise it was not to be considered and taken as proved and used in evidence

Such principle of law was in line with the principle that where law required an act to be done in a particular manner, it had to be done in that way and not otherwise

Scribe of a document could only be a competent witnesses in terms of Arts.17 and 79 of Qanun-e-Shahadat,1984, if he had fixed his signature as an attesting witness of the document and not otherwise

Signing of document in the capacity of a writer did not fulfil and meet mandatory requirement of attestation by him separately

Scribe of document could be examined by concerned party for corroboration of evidence of marginal witnesses or in the eventuality those were conceived by Art.79 of Qanun-e-Shahadat, 1984, itself not as a substitute

Mandatory provisions of law had to be complied and fulfilled and only for the reasons or the perception that such attesting witness if examined would turn hostile did not absolve the concerned party of its duty to follow the law and allow the provisions of Qanun-e-Shahadat, 1984, relating to hostile witness take its own course

Supreme Court declined to interfere in the judgments and decrees passed by the Courts below

Appeal was dismissed.

If government remains recalcitrant despite such opportunities, then government is to be treated in the same manner as any other judgment debtor i.e. the execution may be issued against it

Essence of S.82, C.P.C. lies in granting two opportunities to government

Law in its wisdom has chosen to grant certain privilege to government over other judgment debtors, and it is for the government to decide whether it wishes to properly avail the privilege in the spirit and intent of law or simply abuse it in order to vexatiously prolong and delay the inevitable.

Upon obtaining foreign judgment by plaintiff, three courses are open to such plaintiff firstly he can obtain execution of foreign judgment by proceeding under S.44-A, C.P.C., if the country from which decree has been obtained is United Kingdom or any reciprocating territory and in that case, plaintiff can outrightly obtain execution of the decree from District Court of concerned district of Pakistan and plaintiff need not file suit even and need not go through procedure prescribed for trial of suit

Secondly plaintiff can file suit in Pakistan on the basis of foreign judgment treating it as cause of action

In adopting second course, if conditions prescribed in S.13 C.P.C. are fulfilled, the judgment is conclusive between parties and otherwise it is res judicata between them and such Courts in Pakistan are bound by its findings

Such suit is to be filed within the period of six years from the date of that judgment as provided under Art.117 of Limitation Act, 1908

Third course against foreign judgment is that plaintiff can file suit on the original cause of action as it does not cone to an end after passing of foreign judgment but remains intact until and unless that foreign judgment is satisfied

If conditions mentioned in S.13 C.P.C. are not satisfied, then the decree remains open to collateral attack in Pakistan.

Upon obtaining foreign judgment by plaintiff, three courses are open to such plaintiff, firstly he can obtain execution of foreign judgment by proceeding under S.44-A, C.P. C., if the country from which decree has been obtained is United Kingdom or any reciprocating territory and in that case, plaintiff can outrightly obtain execution of the decree from District Court of concerned district of Pakistan and plaintiff need not file suit even and need not go through procedure prescribed for trial of suit

Secondly plaintiff can file suit in Pakistan on the basis of foreign judgment treating it as cause of action

In adopting second course, if conditions prescribed in S.13 C.P.C. are fulfilled, the judgment is conclusive between parties and otherwise it is res judicata between them and such Courts in Pakistan are bound by its findings

Such suit is to be filed within the period of six years from the date of that judgment as provided under Art.117 of Limitation Act, 1908

Third course against foreign judgment is that plaintiff can file suit on the original cause of action as it does not come to an end after passing of foreign judgment but remains intact until and unless that foreign judgment is satisfied

If conditions mentioned in S.13 C.P.C. are not satisfied, then the decree remains open to collateral attack in Pakistan.

In execution of decree passed by Banking Court, mortgaged property was put to auction for three times but it could not fetch the reserved price

Bid offered by petitioner was accepted by Banking Court

Plea raised by judgment debtors was that Banking Court in execution of decree having once adhered to procedure prescribed by Civil Procedure Code, 1908, could not have switched over to any other mode-Validity

Banking Court, on application of decree holder, was at liberty under S.18 (2) of Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act, 1997, to recover amount covered by decree, in accordance with provisions of Civil Procedure Code, 1908 or any other law or in such other manner as it might have deemed fit

Consideration and approval of offer made by petitioner by Banking Court was neither illegal nor unjustified particularly when inspite of all efforts having been made previously, including those made by decree holder, even judgment debtors failed to procure a better offer-Approval of offer made by petitioner, which was more than the maximum price offered in public auction was just and proper-Supreme Court converted petition for leave to appeal into appeal, set aside judgment and decree passed by High Court and restored that of Banking Court

Appeal was allowed.

In execution of decree passed by Banking Court, mortgaged property was put to auction for three times but it could not fetch the reserved price

Bid offered by petitioner was accepted by Banking Court

Plea raised by judgment-debtors was that Banking Court in execution of decree having once adhered to procedure prescribed by Civil Procedure Code, 1908, could not have switched over to any other mode

Validity

Banking Court, on application of decree holder, was at liberty under S.18 (2) of Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act, 1997, to recover amount covered by decree, in accordance with provisions of Civil Procedure Code, 1908 or any other law or in such other manner as it might have deemed fit

Consideration and approval of offer made by petitioner by Banking Court was neither illegal nor unjustified particularly when in spite of all efforts having been made previously, including those made by decree-holder, even judgment debtors failed to procure a better offer

Approval of offer made by petitioner, which was more than the maximum price offered in public auction was just and proper

Supreme Court converted petition for leave to appeal into appeal, set aside judgment and decree passed by High Court and restored that of Banking Court

Appeal was allowed.

Not executable against such person.

Executing Court cannot go behind the decree passed.

Executing Court could not go behind the terms of decree.

Such decree may be executed against anyone judgment debtors, who would, thereafter, have right of contribution against other judgment-debtors.

Executing Court could not go behind decree, except where the same was passed by a Court having no jurisdiction or was nullity in the eye of law being without jurisdiction

Wrong order/judgment could be questioned by way of appeal/revision or other remedy available in law, but Executing Court could not normally refuse to execute a decree on such plea.

Executing Court could not go beyond decree.

Judgment-debtor filed application for dismissal of execution petition on the ground that due to failure of the decree-holder, the stock pledged by the judgment-debtor had been destroyed and rendered worthless

Executing Court dismissed the application on the ground that the claim made by the judgment-debtor was yet to be determined

Validity

Contention . between the parties had to be determined by the Executing Court

If there were factual matters to be decided for the purpose of such determination, under S.47, C.P.C. the same also had to be decided in execution proceedings

Order passed by the Executing Court was set aside and the application was revived accordingly.

Banking Court dismissed execution application on the ground that the same was filed three years after passing of judgment and decree

Validity

Period for filing of execution application was six years in view of S.48, C.P.C.

Where decree was passed on 30-5-1975, the execution application moved on 3-5-1981, was within time

Order passed by the Banking Court was set aside and the execution application was deemed to be pending

Appeal was allowed in circumstances.

-Execution of-Judgment-debtor having ceased to reside or possess property within jurisdiction of Court concerned Decree for execution can be sent to Court having jurisdiction over person or property of judgment-debtor-Application for execution within 3 years from date of order of dismissal for default of first execution not barred-Limitation Act (IX of 1908), Art. 182 (5) - Civil Procedure Code (v of 1908), S. 38, O. XXI, r. 22.

-Execution of-Movables attached but not sold Case ultimately dismissed in default-Execution case not incompetent merely because movables were attached-Civil Procedure Code (V of 1908), S. 47.