KARAMAT NAZIR BHANDARI, J.- This petition for leave to appeal is directed against the judgment and order of the Lahore High Court, Lahore dated 20-6-2005 passed in Civil Revision No. 2004/2003 by which order the petitioner's revision against the dismissal of an application dated 5-7- .2002 filed under section 151 read with order XXI rule 11 C.P.C, was rejected.
2. The facts as narrated by Mr. A.K. Dogar, learned ASC for the petitioner are that on 20-3-1999 respondent filed a suit under order XXXVII C.P.C, for recovery of Rs. 1,01,87,500/- (one crore one lac eighty seven thousand and i.e hundred) on the basis of dishonoured cheque for the sum of Rs.
58,43,750/-. According to Mr. Dogar the remaining amount was claimed to be representing the damages. On 22-7-1999 the Court passed an order of attachment before judgment and also required the petitioner to furnish security. The petitioner furnished security of their house situated in Allama Iqbal Town. On 5.7.1999 the petitioners were allowed to appear and defend the suit subject, as the same was not presented by the owner/authorized person. For non-furnishing of surety, the leave application was dismissed on 15-1-2000 and the decree in the sum of Rs. 58,43,750/- was passed in favour of the plaintiffs-respondents. This decree was challenged by filing appeal (RFA No. 53/2000)in the Lahore High Court. This appeal was allowed on 18-5-2000. The petitioners were allowed one month's time "to submit fresh surety bonds to the satisfaction of learned Trial Court, In case of default in compliance of this direction, the suit filed by the respondent shall stand decreed.
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3. Once again surety presented, was rejected and in terms of the appellate judgment dated 18-5- 2000 the suit was decreed in the sum of Rs. 1,01,87,5000/- on 27-10-2O0O. This decree was challenged by way of RFA No. 509/?000 which was dismissed on 23.1.2001. Review Petition was also dismissed by the Lahore High Court. This judgment/decree was not further challenged and the same attained finality.
4. Plaintiff-decree holder launched execution. The execution was objected to by filing objection petition. As laid down in order XXI rule 23(A) CPC, the Court directed the objection- petitioner/judgment debtor to make the deposit and as no deposit was made, objection petition was rejected on 2-5-2001. On 5-7-2002 the petitioner-judgment debtor filed an application under section 12(2) CPC on the ground that the decree dated 27-10-2000 in the sum of Rs. 1,01,87,500/- was without jurisdiction. On/about the same day another application under section 151 read with order XXI rule 11 CPC was filed by the petitioners claiming that the decree being in-executable, the execution be dismissed. Another application under section 12(2) CPC was filed on 14-9-2002 on the ground that even the earlier decree dated 15-1-2000 was without jurisdiction. On 14.1.2003 both the applications under section 12(2) CPC were dismissed. Not discouraged, the petitioner-judgment debtor presented another application on 20-1-2003 for recall of the order dated 14-1-2003 on the ground that the same was announced without writing and signing it. Mr. A.K. Dogar has not disclosed the fate of this application. However as informed by him the application dated 5-7-2002 for dismissal of the execution petition on the ground that the decree was not executable was dismissal on 16-9-2003. This order was challenged by the petitioners by filing C.R. No. 2004/2003 which was dismissed by the Lahore High Court on 20-6-2005 against which dismissal the petitioner seeks leave to appeal.
5. It has been submitted by Mr. A.K. Dogar, learned ASC in support of this petition that:-
(i) the decree for Rs. 1,01,87,500/- being void was not executable and that the executing Court could so hold, It is void according to Mr. Dogar because under order XXXVII decree can only be passed on a negotiable instrument and not for damages, In this case according to him the amount of dishonoured cheque was Rs. 58,43,750/- and decretal of the rest of the amount viz. Rs. 42,66,686/- represented damages which could not have been granted under order XXXVII, C.P.C.
(ii) Surety once furnished cannot be directed to be furnished afresh. Reliance is placed on Malik Gul Hassan and Co. And others vs. Allied Bank of Pakistan (1996 SCM R 237)
(iii) If second order for furnishing surety is made the earlier is corpsed and once it is erased no penalty can be imposed for its non-compliance.
(iv) Even if leave is not granted the petitioner- defendant can always join the proceedings.
(v) The provisions of order XXXVII rule 2-3 obliging the defendant to seek leave to appear and defend the suit, is abridgment of the constitutional right enshrined in article 9 of the Constitution.
Reference is made to Haji Abdullah Khan and others vs. Nisar Muhammad Khan and others PLD 1965 SC 690 and Fiducially vs. Syed Iqbal Shabhir and others (PLD 1960 (K) 241)
6. Mr. Jehangir A. Khoja, leamed ASC appearing for respondent has controverted the above submission and has highlighted the manner in which the decree and its execution is attempted to be frustrated by misusing the process of law. He has urged that once the leave to appear and defend the suit is refused the Court is obliged to pass a decree in favour of the plaintiff.
7. The argument of Mr. A.K. Dogar is that under order XXXVII a decree for dishonoured cheque could be passed and no amount on any other account including damages could be awarded by the Court, except interest. The legal position stated by Mr. Dogar is correct but unfortunately it is not applicable to his case. The plaint is at page 53 of the paper book and its perusal reveals that the plaintiff is claiming a decree in the sum of Rs. 1,01,87,500/- not on the basis of one dishonoured cheque No. L-0137412 dated 5-9-1998 in the sum of Rs. 58,43750/-but on the basis of the dishonoured cheques the second one being No. L- 0137419 dated 13-11-1998, for Rs. 42,66,686/-. The plaintiff also claimed profit/mark up on the-suit amount, It therefore, turns out that Mr. Dogar's assertion is factually incorrect. The plaintiff has not sought any amount on account of damages.
The factual basis of the argument being non existent challenge to the decree on his ground is to be rejected, It is regrettable that neither Mr. Dogar nor Mr. Khoja, noticed this factual aspect of the plaint.
8. The petitioner-defendant sealed his own fate by not challenging the judgment and decree of the High Court dated r18.5.2000 passed in R.F.A.. No. 53/2000 and dated 23.1.2001 passed in R.F.A. No. 509/2001 whereby the High Court upheld the decree in the sum of Rs. 1,01,87,500/-. That decree attained finality and the arguments now being submitted against his decree could have been examined if the petition for leave to appeal/appeal against the decree was filed in this Court.
Application under section 12(2) or under section 151 CPC is no substitute to regular appeal or revision or review nor these provisions can be construed as something over and above the normal modes of questioning a decree by way of appeal, revision or review, It is unfortunate that some litigants attempt to frustrate the decree/its execution by resorting to provision of section 12(2) and section 151 CPC, unnecessarily.
9. For what has been stated above the other submissions of Mr. Dogar are held to be redundant and need not be examined in the present case. These would have been relevant if this petition was directed against the judgment and decree passed in either RFA 53/2000 or RFA 509/2000. The same are left to be examined in an appropriate case. ]
10. Provision of order XXI rule 23-A is mandatory and the objection to the execution by a judgment debtor can not be considered unless the judgment debtor deposits the decretal amount in Court or furnishes a security for its payment. Both the learned execution Court and High Court have correctly held that the petitioner's objections to the execution of the decree are liable to be dismissed for failure to comply with the above provision, inspire of the order of the executing Court.
11. We hold that this petition is without merit and while refusing leave hereby dismissed the same, with costs.