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C.R. # 155-11
Azhar Hussain Khan
Modern Engineers
01.03.2012 Mr. Muhammad Naveed Sheikh, Advocate for the petitioner.
Sh. Muhammad Siddique, Advocate for the respondent.
Legality of orders dated 12.11.2009 and 01.12.2010 recorded by
learned civil court and learned Additional District Judge, Lahore, has
been called in question by the petitioner whereby in the application
under Section 12(2) of The Code of Civil Procedure, 1908, (here-in-after
called “Code”)made by the petitioner he was required by the trial court
to submit bank guarantee to the tune of Rs.2 Million which order when
questioned in an appeal was endorsed.
2.
The respondent instituted suit for recovery of Rs.20,28,197/-
against the present petitioner in which ex parte judgment and decree
was drawn up in favour of respondent and against the petitioner on
17.03.2009 which was called in question by making an application under
Section 12(2) of the Code, on manifold grounds including non-service of
notice which was contested by respondent. The learned trial court while
making reference to the provisions of order XXI, Rule 23 (A) of The Code
directed the petitioner to submit bank guarantee for a sum of Rs.2
Million which order was endorsed by learned appellate court.
3.
Heard.
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Learned counsel for the petitioner while making reference to the
provision of Order XXI, Rule 23(A) of The Code of Civil Procedure,
maintained that order for deposit of decretal amount or submission of
security can only be made if objection petition is filed by the judgmentdebtor. Submitted that petitioner has filed an application for setting
aside ex parte decree though under Section 12(2) of The Code of Civil
Procedure, 1908, and as such order as well as judgment impugned are
legally not sustainable. Help was sought from the dictum laid down in
“NAWAB and others V. FAZAL ABBAS” (PLD 2005 LAHORE 83).
Repelling the arguments, learned counsel for the respondent
argued that application under Section 12(2) of The Code of Civil
Procedure, 1908, is an objection petition for all intents and purposes
and as such the petitioner being judgment-debtor was rightly required
by both the learned courts to furnish security for the satisfaction of
decree. Reliance was placed upon “Messrs NOWSHERA BRICKS AND
TILES (PVT) LIMITED and others V. REGIONAL DEVELOPMENT FINANCE
CORPORATION” (2002 Civil Law Cases 904) and “HAPPY FAMILY
ASSOCIATES
through
CHIEF
EXECUTIVE
V.
Messrs
PAKINSTAN
INTERNATIONAL TRADING COMPANY” (PLD 2006 SC 226).
4.
Anxious consideration has been given to the arguments advanced
by adversaries with reference to case-law cited at bar.
5.
Order XXI, Rule 23-A of The Code which is relevant is reproduced
for ready-reference:
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5.
Order XXI, Rule 23-A of The Code which is relevant is reproduced for
ready-reference.
“23-A. Deposit of decretal amount, etc.—An objection by the
judgment-debtor to the execution of a decree shall not be
considered by the Court unless—
(a) in the case of a decree for the payment of money, he
either deposits the decretal amount in Court or furnishes
security for its payment; and
(b) in the case of any other decree, he furnishes security for
the due performance of the decree”.
The expressions “objection” “By the judgment-debtor” and “To
the execution of decree” are significant and important to settle the legal
controversy.
The expression “Execution” has not been defined in The Code
though different modes of execution have been mentioned and
elucidated in part II of the said code and Order XXI.
The same expression has been defined in Black’s Law Dictionary (Eight
Edition) as follow:
“Execution---(1) The act of carrying out or putting into effect (as a court
order).
(2) Validation of written instrument such as a contract or will, By
fulfilling the necessary legal requirement;
(3) Judicial enforcement of a money judgment, usually by seizing and
selling the judgment-debtor’s property--------”
The expression in the widest sense means the enforcement or
giving effect to the judgment or orders of a court of justice. In a
narrower sense, it signifies the enforcement of these orders or
judgments by a public officer.
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The word “To” used with reference to execution is also of
significance. Similarly, the word “objection” can be defined by “An act to
resist and obstruct the performance and implementation” of courts
order or judgment when an order is made for the implementation of
said order or judgment. It is further to be noted that the intention of the
legislature has to be kept in view while examining the provision of Order
XXI. Process of litigation starts from institution of suit or proceedings
and terminates upon the conclusion of trial by awarding decree, in any
form. Process of execution is the second step which will commence at
the time of filing of Execution petition as envisaged by Order XXI, Rule
11 of The Code. Prior to that it could not be said that process of
execution has commenced.
There is another word “objection” used in Rule 23-A, which
suggests certain ground of attack to resist and obstruct the
implementation of court’s order and judgment. While determining this
aspect, it has also to be kept in mind whether the said judgment or
decree has been assailed by the judgment-debtor on the grounds
available to him under law as provided under Order IX, Rule 13 or under
Section 12(2) of The Code. Though there is a thin line of distinction and
demarcation between the two eventualities which undeniably in most of
cases must be overlapping but in order to determine the nature of
obstruction either falling under Section 12(2), Order IX, Rule 13 or under
Order XXI, Rule 23-A of The Code, the intention of the judgment-debtor,
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his previous conduct, background of litigation, stage of resistance and
the grounds of obstruction are to be kept in view.
6.
With this interpretation of the expressions used in Rule 23-A of
Order XXI of The Code, now I will examine whether the application
under Section 12(2) of The Code of Civil Procedure can be said to be “an
application for setting aside ex parte judgment” or “objection petition”
in order to attract the mischief of Rule 23-A of The Code.
It is an admitted fact that ex parte judgment was recorded by
learned trial court in favour of respondent. The present petitioner
submitted an application for setting aside said judgment on different
grounds mentioned in para (2) of the application agitating the plea of
non-service of summons as well as is evident from ground (d). Plea of
fraud was also raised at the instance of respondent to question the
existence and genuineness of the decree. It is also not disputed that this
is the first application in series at the instance of petitioner for setting
aside the decree assailed.
Keeping in view the factum of passage of ex parte decree, first
attempt to assail it and that too prior to commencement of execution
process, grounds agitated for setting aside the decree, it can be said
without any fear of contradiction that the application under Section
12(2) of The Code cannot be said to be “objection petition” within the
meaning of Order XXI, Rule 23-A of the Code in order to attract the
mischief of clause (a) of Rule 23-A.
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One cannot dispute that order for deposit of decretal amount or
furnishing of security can be made by the executing court only in the
objection petition.
7.
Similar proposition was moot point before this Court in “NAWAB
and another V. FAZAL ABBAS” (PLD 2005 LAHORE 83) in which it has
been held at page 84 as follow:
However, this provision has no application, where the defendant/
judgment-debtor seeks the setting aside of the ex parte decree
against him, or for the restoration of any such application,
dismissed for non-prosecution, because the ex parte decree can be
got set aside by the judgment-debtor as per the provisions of
Order IX, Rule 13, C.P.C., or if applicable in certain circumstances
under section 12 (2) and the restoration can be achieved under
Order IX and section 151, C.P.C. In all these provisions, there is no
command of law for imposition of the condition as mentioned in
section 23-A. Therefore, the Court, while considering the
application for the setting aside of an ex parte decree, etc. has no
jurisdiction to assume the power and apply the bar contained in
Rule 23-A”.
The Ratio of the report is fully applicable to the facts of the
case.
8.
I have gone through the rule of law enunciated in the Reports
relied upon by learned counsel for the respondent.
Perusal of the facts of the Report “Messrs NOSHERA BRICKS AND
TILES (PVT) LIMITED and others V. REGIONAL DEVELOPMENT FINANCE
CORPORATION” (2002 Civil Law Cases 904) suggests that judgmentdebtor filed objection petitioner under Section 47 of the Code and in the
attending circumstances, it was held that judgment-debtor was rightly
required to furnish security to which no exception can be taken but
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cannot advance plea of respondent as in the present case, the petitioner
seeks setting aside of ex parte judgment.
9.
Similarly, Rule of law enunciated in “HAPPY FAMILY ASSOCIATE”
(PLD 2006 SC 226) though cannot be questioned but would be of little
help to the respondent due to distinguishable facts.
No doubt, in the Report under reference, application under
Section 12(2) of The Code was made by the judgment-debtor but
perusal of the facts reported in para (2) clearly stipulates that there was
a contest between the adversaries to the lis till the passage of decree
and suit was decreed due to failure of the judgment-debtor to furnish
security as “Leave to appear and to defend the suit” was granted
conditionally. The said decree was assailed by way of appeal but without
any success. Revision petition was also dismissed by this Court and
during the execution process, another application was made and
keeping in view the facts and circumstances, it was held by the Apex
Court that some litigants attempt to frustrate the decree/its execution
by resorting to the provisions of Section 12(2) and Section 151 of The
Code un-necessarily and as such it was held that in fact it was objection
petition under Rule 23-A of The Code and order requiring the judgmentdebtor to deposit decretal amount was held to be rightly passed.
Admittedly, facts in the present case are different.
10.
Pursuant to above discussion, order as well judgment impugned
before this Court are result of mis-interpretation of law and as such
while setting aside the same, revision petition is accepted but without
any orders as to costs.
(Mehmood Maqbool Bajwa)
Judge.
Approved for Reporting.
A.D. Mian*