Through this petition, the order dated 16.9.2003, has been assailed, whereby the learned executing Court, has rejected the application u/S. 151 filed by the petitioner/the judgment debtor.
2. The necessary facts of the case are:--that under the provisions of Order 37 CPC, the respondent on the basis of a dishonouied cheque, brought a suit for the recovery of an amount of Rs, 1,01,87,500/- against the petitioner. The petitioner moved an application, for leave to appear and defend, which was allowed, but subject to the condition of furnishing two surety bonds, in the sum of the suit amount. The petitionerfiled the bonds, however, on an objection subsequently raised by the plaintiff/respondent, that those were not-submitted by a duly authorized person; on behalf of the Pakistan General Insurance Company (surety in the case); and were for a limited period of time, which has expired and no fresh bonds have been refurnished; the Court by allowing the objection and while holding that as the condition for the leave has not been met by the petitioner, granted a decree dated 15.1.2000, to the extent of Rs, 58,43,750/-, the amount covered by the cheque, whereas the claim of the respondent, such a profit, etc, which was beyond the cheque, was disallowed. Aggrieved of this judgment and decree, the petitioner preferred RFA No, 53 of 2000, which was accepted by this Court, vide judgment dated 18.5.2000, in the following terms:-- "In view of the above, we allow this appeal, set aside the impugned judgment and decree and remand the case to the learned trial Court. The appellants are allowed one month's time to submit fresh surety bonds to the satisfaction of the learned trial Court. In case of default in compliance of this direction, the suit filed by the respondents shall stand decreed."
Thereafter, as the petitioner could not submit the proper surety bonds to the satisfaction of the trial Court, therefore, the Court was pleased to pass a fresh decree dated 27.10.2000, in favour of the respondent, but this time, to the tune of the whole amount of Rs, 1,01,87,500/-; the petitioner challenged the judgment and decree through RFA No, 509/2000, which was dismissed on 23.1.2001 and in paragraph 6 of the judgment, it is provided that:-- "The appellants failed to produce the proper security before the trial Court within the period prescribed by law. The surety bonds produced by them were deficient in many respects especially when it was executed by an individual on behalf of a concern without proof of assets owned by him. Learned counsel for the appellants also argued that the appellants were also entitled to exclude the time spent in, obtaining copy of the judgment and decree of the High Court. This argument is misconceived. Section 12 of the Limitation Act, allows copying days to be excluded when some appeal, etc. is to be filed. The application filed by the appellants on 29.8.2000 was therefore, rightly dismissed by the learned trial Court. In view of the above, this appeal has no merit and it is accordingly dismissed in limine."
3. The petitioner sought the review of the above judgments through Application No, 9/C/2000, but without any success. It may be pertinent to state here that during this period, the respondent had filed the execution application, and the proceedings were held in abeyance, but after the decision of this Court, the 'executing process was commenced on 13.3.2002, when the petitioner filed objections to the decree, upon which, an order was passed by the Court, directing the petitioner to deposit within one month, the decretal amount in the Court, in terms of the order XXI Rule 23-A CPC. This order was not complied by the 'petitioner and thus on account of the failure thereof, its objections petition was dismissed by the executing Court on 2.5.2001. I am not shown, if this order was challenged any further. However, it transpires from the record that thereafter, the petitioner filed two applications u/S. 12(2) CPC, on 5.7.2002 and 14.9.2002, respectively. In the first application, the decree dated 27.10.2000 was challenged, whereas in the second application, the decree dated 15.1.2000 was impugned. Alongwith the second application u/S. 12(2) CPC, another application u/S. 151 CPC was filed. Both these applications, after framing of the issues, were dismissed by the Court vide order dated 14.1.2003 and admittedly, the orders have not been challenged by the petitioner any further; however, the petitioner claiming that his above mentioned application u/S. 151 is still pending, sought its disposal and the Court through the impugned order, has dismissed the same.
Hence this revision.
4. Mr. A.K. Dogar, learned counsellor the petitioner has argued that the judgments and decree against the petitioner are nullities in the eyes of law and therefore, inexecutable, resultantly, the executing Court by accepting the petitioner's application under Section 151 CPC, should have dismissed the execution application filed by the respondent. To substantiate that the decrees are void, the learned counsel submits that the surety bonds, which had been furnished by the petitioner in pursuance of the judgment of this Court dated 18.5.2000, in RFA No, 53, was neither accepted nor rejected by the trial Court and therefore, the decree dated 27.10.2000, could not have been passed; even if the leave application of the petitioner was dismissed due to non-compliance of the condition for leave, yet it was the duty of the Court to have directed the respondent/plaintiff to prove his case through the production of the evidence and the petitioner should have been allowed to participate in the proceedings by further enabling him with an opportunity, to cross- examine the witnesses of the respondent/plaintiff. Due to this lapse, the judgment and decree passed against the petitioner, is rendered inexecutable; that the property of the petitioner had already been attached by the Court before the judgment, therefore, in this situation, no fresh surety as the condition for the leave, was warranted under the law and could be imposed upon the petitioner. However, even if, it was erroneously done by the Court, still such condition, shall be deemed to have been satisfied by the petitioner, because of the attachment of his property, which was sufficient security for the satisfaction/discharge of the decree.
Without prejudice to the above. Mr. Dogar states that the claim of the respondent/plaintiff propounded in the suit, was two fold (i) the sum of Rs, 58,43,750/- covered by the cheque and the balance of the suit amount was the claim of profit, etc. the learned Addl. District Judge, seized of the matter as a trial Court, was exercising a special summary jurisdiction, which was confined only to the negotiable instrument, and therefore, no profit could be allowed by the Court, resultantly, the decree for the amount, not covered by the cheque, is void ab-initio, on account of the want of jurisdiction.
While making his further submission, the learned counsel states that the direction of the Court below to deposit the decretal amount in the Court, in terms of the Order XXI Rule 23-A of CPC, as a condition precedent for the maintainability of the objection petition, was absolutely illegal and unlawful. Therefore, for non-compliance of such an order, no prejudice should be caused to the petitioner, when the decree being nullity is inexecutable and thus it was the duty of the Court to refuse to enforce such a decree; he further submits that two applications u/S. 12(2) CPC were disposed of by the Court, not touching the merits of the case, rather only for the reasons that the petitioner had failed to deposit the decretal amount as earlier directed by the Court, in terms of Order XXI Rule 23-A CPC. It is also argued that the order of the Court to furnish security within particular time, and the security when tendered within that time, though tested and found sufficient after expiry of time, the order shall be deemed to have been complied with. Lastly, Mr. Dogar argued that there are two situations in a suit for the recovery initiated under Order XXXVII CPC, one where the application has been filed and rejected by the Court, and the other where leave application has not been filed at all. In the first situation, the Court cannot presume the averments of the plaint, as being correct and the law saddles the plaintiff of the case with the responsibility to prove his case enabling the defendant to participate in the proceedings and resist the claim of the plaintiff. In support of his above contentions. the learned counsel has relied upon the judgments reported as Malik Gul Hassan & Co. vs. Allied Bank of Pakistan (1996 SCMR 237), The State vs. Asif Adil, etc. (1997 SCMR 209 at 223), Aurangzeb vs. Massan and others (1993 CLC 1020)
Muslim Commercial Bank Ltd. vs. Akbar Fibre Mills Ltd. (1993 CLC 2209), The Chief Settlement Commissioner Lahore vs. Raja Muhammad Fazil Khan, and others (PLD 1975 SC 331), Rehmat Ali vs. Additional District Judge, Multan (1999 SCMR 900), Abdul Sattar. etc. vs. Ibrahim, etc. (PLD 1992 Karachi 323), Mercantile Fire & General Insurance Co. of Pakistan Ltd. vs. Messrs Imam & Imam Ltd.
(1989 CLC 2117), Col. (Retd.) Ashfaq Ahmed, etc. vs. Sh. Muhammad Wasirn (1999 SCMR 2832), Fidaally vs. Syed Iqbal Shabbir and another (1960 Karachi 241). Messrs Fulbrite (Pakistan) Ltd. vs. Karachi vs. Messrs United Bank Ltd. Karachi (PLD 1976 Karachi 478), Rangaswa mi Naddar vs. Minor Pitchaimani Nadar (AIR 1942 MAD 29), N.P. Ganapathy Naucker and others vs A.M. Govindarajulu Naidu (AIR 1947 MAD 70) Muhammad Aslam vs. Falak Sher (1990 CLC 1119) and Muhammad Yousaf vs. Allah Yar (PLD 1987 Lahore 101).
5. Heard. It is settled law that an executing Court, has no power to go behind the decree or to question its legality or the correctness. All the pleas raised by Mr. A. K. Dogar, learned counsel for the petitioner, at the best, may either be termed and construed as the errors, mistakes, inaccuracies, committed by the Court, while passing the decree, or allegedly in disregard of the law, but by no stretch of legal acumen, it can be held that the eventual decree dated 27.10.2000 passed by the trial Court and upheld in appeal, suffers from the vice of the want of jurisdiction and therefore, is inexecutable. In this regards, I shall separately dilate upon the significant pleas raised by the counsel, to hold that the decree is not a nullity.
6. The pleas about the attachment of the property, before the judgment and the filing of the surety bonds, which, could have been scrutinized by the Court subsequently are concerned, stifficie it to say that no order of attachment before the judgment, has been filed with this petition.
Notwithstanding the above, when the trial Court passed the conditional leave granting order, requiring the petitioner to furnish the surety bonds and the petitioner in compliance of the said order, filed the bonds, which, however, due to certain inadequacies, were subsequently rejected by the Court and the first decree dated 15.1.2000, was passed; this shall obviously mean that earlier order of attachment, if any, was withdrawn by the Court and the specific procedure provided by Order XXXVII for the grant of leave, conditionally or otherwise was followed. Be that as it may, when this decree was challenged by the petitioner, before this Court in RFA No, 53/2000, the Court directed the petitioner to furnish fresh surety bonds to the satisfaction of the Court within one month and in the judgment, it is provided that "in case of default in compliance of this direction, the suit filed by the respondents shall stand decreed." From the above, it is clear that the point about the attachment of the property was never raised by the petitioner, before this Court and thus in view of the judgment, the so-called order of attachment lost its efficacy and it was the judgment, which the petitioner had to follow and comply by furnishing fresh sureties in terms thereof.
7. The plea about the timing of the scrutiny of the surety bonds is concerned, to my mind, this proposition does not arise in the present case, because the petitioner according to the judgment dated 18.5.2000 was supposed to furnish the surety bonds, which admittedly he failed and therefore, the judgment had to take its effects, which was duly given by the learned trial Court, when the suit of the respondent was decreed on 27.10.2000.
8. The argument of Mr. A.K. Dogar, that even if the petitioner had failed to meet the condition of leave granting order,. the learned trial Court, was supposed and duty bound to require the respondent/plaintiff to produce the evidence, in which the plaintiff should have been given right to participate by cross-examining the witnesses, suffice it to say that despite. the refusal of the Court to grant the leave, or the defendant having failed to fulfill the condition of the leave, the Court of law is required to see, that there is no legal impediment in the way of padedng the decree, besides the Court for its own satisfaction, may also ask the plaintiff to produce such evidence, which usually is needed in the matter, where the defendant of a case, has been proceeded ex-parte. But it cannot be held that an eventuality, where the defendant of a suit under Order 37 CPC, has failed to meet the condition of the leave granting order, still he has given the right to participate in the proceedings. Moreover, in the case, the judgment of this Court, dated 18.5.2000, passed in RFA No, 53/2000, was in the filed, and as directed by the judgment, the petitioner has failed to furnish the surety bonds, within the time given, thus the suit had to be decreed in terms of the ' judgment.
Therefore, the failure to follow the process requiring the plaintiff of the case to produce the evidence in proof thereof. at the best, as stated above, may be a mistake, or the omission of the Court to follow the law laid down by the superior courts, having different legal implications, which could be corrected in proper jurisdiction, if appropriately challenged by the petitioner. But the error in no manner rendered the decree as void or nullity in the eyes of law, relegating it to be unenforceable and inexecutable, and could be so declared by the executing Court, while exercising its jurisdiction, subject to the vital and fundamental rule, that it can not go behind the decree and examine its correctness or legality; and such an amiss could only be ractified in appeal, revision, review or any other specific remedy provided by law. But certainly not by the executing Court. It may be pertinent to mention here that there is marked and conspicuous difference between the decree, which is a nullity and thus inexecutable and one suffers from any error or illegality, etc.
9. As regards the question that the Court below had no power to pass the decree, viz-a-viz the amount of profit claimed in the suit, suffice it to say that this again at the best, is plea about the erroneous exercise of jurisdiction, which should have been challenged by the petitioner, in appropriate proceedings, but it is not a vice of the nature, which effect the very jurisdiction of the Court to pass the decree, because under the provisions of Order 2 Rule 2 CPC, every suit shall include the whole of the claim, which the plaintiff is entitled to make in respect of the cause of action, therefore, if on account of a cause of action based on a negotiable instrument, the suit is initiated under Order 37 CPC, the ancillary, incidental and the consequential relief such as the loss of profit, etc, can be, rather should be included in the same suit to avoid the bar of Order 2 Rule 2 CPC. And thus it shall be within the jurisdiction of the Court, exercising the power under Order 37 CPC, to take cognizance and to adjudicate and decide .the whole suit. It may also be added that according to Section 7 of the Civil Courts Ordinance, 1962, the District Judge, has the original jurisdiction to try the civil suits, without there being any limits as regards the value of the subject matter and such jurisdiction is exercisable by the Additional District Judges, as well. Therefore, the decree dated 27.10.2000, on the basis of the above noted submission, cannot be held to be inexecutable.
10. I am also not inclined to exercise my discretionary jurisdiction in favour of the petitioner, because of the following reasons:--
1. The petitioner did not furnish proper surety bonds to the Court to meet the condition of leave at the very first instance;
2. The petitioner did not comply with the judgment of this Court dated 18.5.2000 passed in RFA No, 53 of 2000 and the surety bonds were not furnished within the time provided;
3. The judgment dated 27.10.2000 when passed, was challenged before this Court but the RFA No, 509/2000, was dismissed on 23.1.2001; the review petition also failed. The petitioner did not challenge this further before the Honourable Supreme Court and the two judgments are conclusive and have attained finality.
4. The trial Court competently passed the order directing the petitioner to deposit the decretal amount in terms of Order 21 Rule 23-A but this order was not complied with. When its objection petition was dismissed, the petitioner did not further challenge the, order, rather moved two applications u/S. 12(2) CPC, which again were dismissed and these orders were not assailed any further. This all shows that throughout the attitude and the conduct of the petitioner, has been to avoid his liability, towards the respondent.
5. The most of the pleas raised have not been set as grounds of attack in the revision petition.
In the light of above, this petition has no merits and the same is hereby dismissed.