Decree

Facts in brevity were that the petitioner stood as a surety for the judgment-debtor in execution proceedings arising from an ex-parte decree passed by the family court for recovery of maintenance and dowry articles in favour of respondent No.3 (lady) and her minors

The decree was suspended by the executing court subject to furnishing a surety bond equal to the remaining decretal amount, and the petitioner submitted a surety bond

Upon continued non-compliance of decree by the judgment debtor, executing court passed orders for the auction of the petitioner's (surety's) property to satisfy the decree, leading to the filing of the instant writ petition challenging such orders

Pivotal point for determination before the High Court was "whether the executing court lawfully proceeded against the petitioner (surety) for full satisfaction of the decree, including attachment and auction of his property, in light of the ambiguity between the written contents of the surety bond and the petitioner's undertaking recorded on its reverse side"

Held: Contents of the surety bond showed that it was to the extent of Rs.160,000/-, but the statement of the surety, recorded by the court, on the backside of the surety bond, clearly showed that petitioner stood surety for the remaining decretal amount at that time

The statement recorded by the petitioner on the backside of surety bond described that in case of non-payment of decretal amount by the judgment-debtor, petitioner (surety) would have no objection upon satisfaction of the decree by way of attachment of his (surety) property

Petitioner undertook to satisfy the remaining decretal amount, whereas the surety bond submitted on his behalf contained altogether different version

There was clear ambiguity found in the surety bond, whereas, the undertaking given by petitioner on the backside thereof was not ambiguous and its plain reading led to no other meaning but that the petitioner / surety held himself responsible for satisfaction of the entire remaining amount and offered his property to be attached in case of default by the judgment-debtor

Surety bond must be read in its ordinary meaning and when words contained therein were unambiguous, there was no reason to apply any other to its construction, however, in this case, the contents of surety bond were vague and unclear as compared to the undertaking given by petitioner

Petitioner (surety) himself made him liable to pay the decretal amount in place of the judgment-debtor on his failure to satisfy the decree

The petitioner (surety) then could not wriggle out of his own undertaking

Decree could also be executed against a surety

As regards petitioner's stance that after arrest of judgment-debtor / respondent No.4, he was absolved from making payment of decretal amount, arrest of judgment-debtor did not absolve the surety from making payment of decretal amount as his liability was joint and several with the judgment-debtor

Petitioner (surety) was liable to pay the remaining decretal amount

No jurisdictional defect or material irregularity was pointed out by the petitioner (surety) in the orders under challenge

Constitutional petition was dismissed, in circumstance.

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.

Through a declaration in civil matters claimed under section 42 of the Specific Relief Act, 1877, a pre-existing right can be declared, but a new right cannot be created by grant of a decree by the civil court.

Rejection of plaint was also decree under S.2(ii), C.P.C. as there was formal expression of adjudication conclusively determining rights of parties and was capable of execution

High Court declined to interfere in order passed by Lower Appellate Court

Revision was dismissed accordingly.

Consent decree or order is nothing but a contract between the parties with command of the Court superadded to it.

In general there are three types of decrees (i) Preliminary decree, (ii) Final decree, and (iii) Partly preliminary and partly final decree

Decree is final decision given by Court after determining rights of parties in a dispute.

Suit was dismissed in terms of O. VII R. 11(d) of the C.P.C., which had made the impugned order appealable in terms of S. 96 of the Code of Civil Procedure as the expression "decree" envisaged in S.2(2) of C.P.C. included rejection of the plaint

Order impugned, therefore, for all intents and purposes was appealable in terms of S.96 of the Code of Civil Procedure

One of the material requirements for availing remedy under Art. 199 of the Constitution was when no other alternative, efficacious remedy was available

Constitutional petition in the present case was filed when not only adequate and efficacious but a statutory remedy was available

Trial Court, however, had not prepared the decree sheet

No person could be allowed to suffer or his right be prejudiced on account of an act of the court

Drawing up of a decree was the duty of the Trial Court and there was no provision in the Code of Civil Procedure which prescribed a time for drawing a decree

Trial Court was directed to draw a decree in terms of the impugned order

Constitutional petition was disposed of accordingly.

Decree against dead person is nullity in the eyes of law.

Decree could not be passed against a person who was not a party in the lis before the Court.

Petitioner assailed order passed by executing court whereby he was ordered to pay, besides the decretal amount, an amount of Rs.5,00,000/- in light of an agreement between the parties

Contention of respondent was that the decree was passed on the basis of compromise between the parties and in the light of said agreement, it was agreed that if the petitioner, without any reason, would divorce the respondent, he would be bound to pay the said amount

Validity

Record revealed that the respondent was declared entitled to dower of Rs. 44,445/

Trial court had not declared that if the petitioner would divorce the respondent without any reason, she would be entitled to Rs.5,00,000/- in the light of said agreement

Executing Court had to execute the decree as it was and could not go beyond it

Executing court had travelled beyond the scope of the decree

Petition was accepted and the impugned order was set aside, in circumstances.

Not necessary that fraud in obtaining the decree should have been played on the Court which passed the decree but if a decree had been obtained through fraud between the parties inter se by concealment of true facts, the same could also be set aside.

Scope

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.

Words "court which passed the decree" in S.37, C.P.C. and words "court to which a decree has been sent for execution" in O.XXI, R.26, C.P.C.

Connotation

Executing Court could not go beyond the decree nor could question the legality and validity of a decree till satisfaction thereof if not otherwise barred by law

Decree holder might apply to the court passing a decree for sending the same for execution to another court even at any time

Ex-parte decree would be equally enforceable

Present execution petition had not been received by way of transfer from the other court but the court which had passed the decree

Appeal preferred against the decree passed in the suit had been declined

Request for stay of execution for enabling the applicant to file petition was misconceived and did not fall within the scope and objective of O.XXI, R.26, C.P.C.

Applicant was competent to file application before the appellate court for suspension of order

Application for stay of execution was dismissed in circumstances.

Delay in the discharge of moneys due under a decree that ordered payment of principal amount adjudged, interest and costs attracted the principle of appropriation of payments

General principle of appropriation of payments towards a decretal amount was that such an amount was to be adjusted firstly strictly in accordance with the directions contained in the decree and in the absence of such direction, adjustment, was to be made first in payment of interest and costs and thereafter in payment of the principal amount

Such principle was, however, subject to one exception, i.e. that the parties may agree to the adjustment of the payment in any other manner despite the decree

As and when such an agreement was pleaded, the onus of proving was always upon the person pleading the agreement contrary to the general rule or the terms of the decree schedule.

Suit filed by plaintiff against the Bank was decreed and a decree for recovery of £152,542.97 was granted in favour of the plaintiff and against the defendant with costs and 'periodically prevalent interest as prayed for till realization of the decretal amount'

Question as to whether interest was to be calculated on the basis of principal amount decreed or the aggregate of the principal amount and unpaid/accrued interest thereon

Payment of interest on the decretal amount was an obligation of the judgment-debtor Bank under the decree in the present case

Such obligation continued until the decretal amount was paid in full

On such reasoning unpaid interest accruing until payment of the principal amount of the decree should add on to the remaining sum of the principal amount adjudged and become a part of the balance decretal amount that was subject to interest

However, in the present case, there was no order in the decree for payment of interest on the unpaid amount of accrued interest

Decree under execution, in the present case, neither granted interest for the period prior to filing of the suit nor awarded interest on the aggregate of the principal amount of the decree and interest pendente lite

Interest pendente lite and further interest were both discretionary reliefs granted under S. 34, C.P.C.

Unless expressly ordered in a decree such interest accrued on principal amount adjudged and not on the aggregate of that amount with accumulated interest

Decree, in the present case, was silent about the accrual of interest on interest or on any aggregate amount, and clearly did not order the charging of compound interest

On the other hand, it ordered for interest to be charged and paid until realization of the decretal amount but the meaning of the term "decretal amount" was not given

Net effect, in the present case, was that accrual of interest occured at simple rate rather than compound rate

Supreme Court remanded the case to the Executing Court for undertaking afresh the calculation of liability of the judgment-debtor bank and the realization of dues under the decree

Petition for leave to appeal was converted into appeal and partially allowed accordingly.

Even in cases where the agreement to sell was validly proved by the plaintiff, the courts may refuse to allow the relief of specific enforcement

Court was neither obliged to grant the relief of specific performance nor could the plaintiff claim it as a matter of right.

Cross objections were only relevant and meant to have (challenge) a finding on a particular issue, which had been decided against a party to the lis, while supporting the decree in favour of the party filing cross objections.

Consent decree was a kind of agreement/contract between two parties with a superadded command of the court, but it would not bind a third party who was not party to the suit.

Decree passed by a Court without jurisdiction is nullity and its invalidity can be set up whenever and wherever it is sought to be enforced or relied upon, even at the stage of execution and in collateral proceedings.

Every person/authority not impleaded in the array of dependents is a stranger.

Order for suspension of operation of an earlier decree through any other suit was not permissible unless such decree had been set aside.

Such decree would be void ab initio and no limitation would run thereagainst.

On failure of the defendant to pay the settled amount, the plaintiff filed an execution petition, maintainability of which was assailed by the defendant

Validity

Trial Court disposed of the suit in terms of compromise, albeit without decreeing the suit as such in favour of the plaintiff against the defendant but instead consigned the file to the record room after its completion

Where no decree sheet was drawn and the suit was merely disposed of, then the said order did not fall within the definition of the "decree" under section 2(2) of the C.P.C.

Order of Executing Court was set aside

Appeal was allowed, in circumstances.

Family Court struck off defence of husband (petitioner) to the extent of maintenance allowance of minors on his failure to pay the interim maintenance allowance to minors fixed by the Family Court

Family Court decreed the suit for recovery of maintenance allowance for minors

Validity

Family Court had jurisdiction under S.17-A of the West Pakistan Family Courts Act, 1964 to decree the case on the failure of the husband to provide interim maintenance allowance

Term "decree" was not defined in the West Pakistan Family Courts Act, 1964 and definition for the same was given in S.2(2) of the C.P.C. as a "formal expression of an adjudication, which, so far as regards to the court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in the suit and may be either preliminary or final [..]."

Word "adjudication" referred to a judicial determination of a matter in controversy, dispelling the impression of arbitrariness

Impugned order of the Family Court was lacking in such judicial determination of the matter in controversy

High Court set aside impugned order of Family Court and case was remanded to Family Court with the direction to the Family Court to consider the financial condition of the husband

Constitutional petition was allowed, accordingly.

Such decree was not in the usual form as it directed delivery of gold ornaments but did not state alternative of money payable in case of non-delivery of gold ornaments by judgment debtor

Decree in question was not framed in accordance with the provisions of O.XX, R.I0, C.P.C.

In view of S.17 of West Pakistan. Family Courts Act, 1964, provisions of O.XX, R.10, C.P.C. were not stricto sensu applicable to a decree obtained in a Family suit

No provision existed in West Pakistan Family Courts Act, 1964, similar or corresponding to O.XX, R.10, C.P.C.

Decree passed under West Pakistan Family Courts Act, 1964, for recovery of dowry articles including gold ornaments or other movable property was lawful and executable, even if it did not state monetary value payable in case movable property was not delivered.

Decree should follow judgment and it should not only contain number allotted to the suit but also complete names and description of the parties with particulars of claim and also relief specified clearly therein

Decree should agree with the judgment.

Order or a decree was binding only against a party to the suit and not on a stranger.

Word 'decree' meant an order by one in authority; a judicial decision; an edict in law.

Decree-holder whose suit for specific performance of agreement, possession and recovery was decreed, filed application for execution of decree, which was dismissed being barred by time

Decree-holder had claimed that earlier he filed application for execution of decree in time, but same having been dismissed in default, he had again filed application for execution of decree, which had been dismissed by the Executing Court without appreciating the facts and circumstances of the case and accepting the objection of judgment-debtor with regard to limitation and that first application for execution of decree was to be filed within a period of three years and once it was filed in time, thereafter any number of applications for execution could be made within the provided period of six years

Validity

Despite having full opportunity, decree-holder had failed to prove any such application before the court, he had even failed to mention the exact date of submission of said first execution application made by him

Decree-holder had not asserted that due to fraud or misrepresentation he was restrained from filing of such application; or there existed such circumstances due to which he was unable to file application for execution of decree in time

No such grounds were urged by the decree-holder, on basis of which delay occurred in filing application could be condoned

Execution application was rightly dismissed, in circumstances.

Consent decree or consent order only binds those parties or persons who gave consent to the order or decree.

Such decree could be a source of sigh of relief to the decree-holder as the burden to effect recovery had shifted to the Court.

While passing ex-parte decree, it is the duty of court to see whether plaintiff is entitled to relief asked for and if so to what extent.

Ex parte decree in spite of service of notice cannot be pressed unless service effected through summons.

Decree-holder could file execution petition for implementation of decree of possession; could apply to Revenue Officer for implementation of decree in Revenue Record in their favour; could file a suit for ejectment against defendant/judgment-debtor under Punjab Tenancy Act as after passing of decree of preemption in favour of plaintiffs/decree-holders defendant either would acquire status of an illegal occupant or as a tenant under decree-holder; and could file a suit for possession under S.8, of Specific Relief Act, 1877 on the basis of title which they had acquired through decree.

Executing Court at the time of execution of the decree, modified the decree' by changing the rate of interest specified in the decree

Validity

Substitution or amendment could not have been made by the Executing Court as the same amounted to an attempt to frustrate the object-of the judgment and decree which had already attained finality

Such order passed by the Executing Court was arbitrary, capricious and coram non judice

Executing Court could not go behind the decree

When decree passed attained finality, it had got to be executed even if it was erroneously passed

Executing Court could not rectify any mistake in decree which would tantamount to going behind the decree

High Court had rightly set aside the order passed by the Executing Court.

Definition of decree as given in S.2(2), C.P.C. would not exclude an ex parte decree nor it would indicate that the decree against minor or decree which was ab initio void would not be a decree.

Appellant's claim was that mortgage of disputed plot in favour of Bank axis not valid, and that he was bona fide purchaser thereof for valuable consideration without having prior notice of any encumbrance thereon

Banking Court, after recording evidence, rejected the objection petition

Validity

Bank claimed to be mortgagee of disputed plot on basis of two documents viz. an application for transfer of allotment of disputed plot signed by its original allottee, from whom mortgagor had acquired it, which was found to be a fake document as it was not part of record of Capital Development Authority; and copy of letter addressed to original allottee, which did not bear signatures of any functionary of Capital Development Authority

Both such documents had not resulted in creation of mortgage in favour of Bank

Nothing was available on record to show that appellant was not bona fide purchaser of disputed plot

Appellate Court accepted the appeal and allowed the objection petition accordingly.

While passing decree in a suit for recovery of amount, Banking Tribunal has no jurisdiction to give direction to Bank for remission of mark-up.

Decree-holder has a right to avail both the remedies i.e. for attachment of property of judgment-debtor and also his arrest.

Questions as to excitability and validity thereof can be determined by Executing Court not only under O.XXI, R.97, C.P.C. but also under the provisions of S.12(2), C.P.C.

Contention of the respondent was that appeal was dismissed by the Lower Appellate Court on the ground of deficiency in court-fee

Such fact was not mentioned in the decree sheet drawn by the Lower Appellate Court

Effect

Decree must contain a formal expression of adjudication

It was the decree, which had to be executed and given effect to and not the judgment

Where there was no formal expression of making up the deficiency in the payment of court fee as mentioned in the decree sheet prepared by the Lower Appellate Court, second appeal could not be dismissed for non-deposit of court fee in circumstances.

Court's failure to perform its duty would not justify punishment to party for the default of Court.

Decree Appellate Court would not disturb a decree unless same was contested by an appeal or cross-objection.

Such decree was not binding on respondent.

Executing Court cannot go behind the decree.

Person not a party to proceedings which culminated into ex parte decree would not be bound by such decree.

Meaning, scope and import of. Term 'decree' means the formal expression of an adjudication which, so far as regards the Court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit and may be either preliminary or final. It further provides that it shall be deemed to include the rejection of a plaint, determination of any question within section 144 and an order under rule 60, 98, 99, 101 or 103 of order XXI of C . P. C . but excludes any adjudication from which an appeal lies as an appeal from an order or any order of dismissal for default. It may further be noticed that the explanation explains that a decree is preliminary when further proceedings have to be taken before suit can be completely disposed of and that it is final when such adjudication completely disposes of the suit or it may be partly preliminary and partly final.

Leave to appeal granted to examine appellants' contention that in point of fact appellants challenged judgment and preliminary decree and had prayed that said decree be modified to extent that it rejected appellant' claim that prospecting licence for coal mining granted to respondent belonged to all partners of firm.

Where recruit sent by licensee was not getting employment abroad, licensee would refund service charges but could not be punished to cancellation of licence and forfeiture, of security

Such action, however, held, could be taken where employer was established to be fake person and licensee had colluded with such employer in defrauding and torturing recruits.