1. ' GULZAR AHMED, J:--By this execution application Decree Holder has sought execution of decree dated 29-8-2002 passed in Suit No,B-32/2002. The Judgment Debtors have filed objections to the execution application. The suit was decreed in terms of the compromise arrived at between the parties through agreement dated 9-8-2002 wherein the Judgment Debtors have agreed to pay the Decree Holder an amount of Rs,2,550,000,000. Such payment was to be made within 7 years starting from 1-1-2003 by down payment of Rs,500,000,000. Rs,100,000,000 vide cheque No,3461101 dated 30-9-2002, Rs,400 million by 12-10-2002 through sale of shares pledged with the bank and balance Rs,2,050,000,000 in equal quarterly instalments including mark up at 11 % per annum as per schedule of the agreement starting from 1-1-2003. It is stated that as against the above decree the Judgment Debtors paid Rs,604. 784 Million but the remaining amount was not paid consequently this execution application is filed wherein the Decree Holder has sought execution of the decree for payment of Rs,2,481,013,802.21 with mark up at 11% per annum from 17-8-2004 till realization. As stated above the Judgment Debtors have filed objections to the execution application.
2. ' Mr. Rashid Anwar learned Counsel for the Decree Holder has contended that the objections filed by the Judgment Debtors cannot be considered unless the Judgment Debtors fulfil the condition precedent for considering of objections as provided under Rule 23-A of Order XXI, C.P.C.. In support of his submission, he has relied upon the cases of Happy Family Associates v. M/s. Pakistan International Trading Company (PLD 2006 SC 226). Muhammad Jamil v. Haji Muhammad Din (PLD 1995 Lahore 107), Gul Muhammad Meer Bahar v. NLC (2001 YLR 837), Muhammad Yasin Khan v.
3. Aftab Ahmed Khan (PLD 1976 Kar. 1133). Hanifa Begum v. Muhammad Qamar Zaman (1992 CLC 1699). Abdul Hameed v. Allied Bank of Pakistan (2003 CLD 288) and M/s. Naushera Bricks & Tiles (Pvt.) Ltd. v. Regional Development Finance Corporation (2002 CLC 904).
4. ' Dr. Farogh Naseem learned counsel for the judgment-debtors on the other hand has contended that the objections filed by the judgment-debtors may be treated as an application under Order XXI, Rule 2(3) read with section 151, C.P.C. For recording satisfaction of the decree by way of an adjustment in writing. He has further contended that while treating the objections as an application for the satisfaction of the decree by way of an adjustment the rule 23-A will not have application and there is no requirement for the judgment-debtors to make deposit or to furnish security in respect of the decretal sum. In support of his submissions he has relied upon the cases of Ganga Dihal Rai v. Ohdh Ram AIR 1929 All. 79, Abdi Hussain v. Kunj Behari Lal AIR 1939 All. 581, Chairman District Council Jhelum v. Ali Akbar 1970 SCMR 105, Nazeer Hussain Shah v. The State PLD 1965 SC 139, Ram Chand Gupta v. Wazir Chand AIR 1962 Punjab 293, Bholo Ram v. Kanhya AIR 1963 Punjab 133, Darumal v. Todar AIR 1938 Lah. 602, Murli Dhar v. Finn Bashesharlal Motilal AIR 1938 Lah. 126, Muhammad Tariq v. Mst. Fazeelat PLD 1977 Lah. 728, Ramnath Sarma v. Baidyanath Chatterjee AIR 1954 Cal. 620, Mrs. Zia Farhat v. Presiding Officer Special Court (Banking) 1969 MLD 680, The Allahabad Bank Limited v. Chairman Chaudhry AIR 1964 Mad. Pra. 226, Usman Hussain v. Habib Bank Limited PLD 1988 Kar. 620, Malik Gul Hassan and Company v. Allied Bank of Pakistan 1966 SCMR 237, Jagan Nath Charan Das v. Thakardas Kaliandas AIR 1935 Lah. 589, S. Udham Singh v. S. Atma Singh AIR 1941 Lah. 149, Ramanarasu v. Matta Vankata Reddy AIR 1933 Mad. 28, Lachhumal Morumal v. Attamahammad Khan Nabibaksh Khan AIR 1939 Sindh 243, VNA Firm v. Bank of Chettinal Ltd. AIR 1938 Rang. 353, Major (Red.) Ahmed Khan Bhatti v. Mst. Massod Fatmi PLD 1981 Kar. 398, Al-Huda Hotels and Tourism Company v. Paktel Limited 2002 CLD 218, Sandoz Ltd. v. Federation of Pakistan 1995 SCMR 1431, Province of West Pakistan v. Gammon's Pakistan Ltd. PLD 1976 Kar. 458, Nagendranath Majumdar v. Kshitish Chandra Ghose PLD 1958 Dacca 179, Banque Indosuez v.
5. Banking Tribunal for Sindh and Balochistan 1994 CLC 2272, Todarmal Tejmal v. Chironjilal Gopilal AIR 1956 MB 25, Moti Shah v. Ghandharp Singh AIR 1926 All. 715, Muhammad Sama Mondal v.
6. Muhammad Ahmed Shaikh PLD 1963 Dacca 816, Rajkishor Mohanty v. Banebehari Patnik AIR -1951 Orissa 291, M/s. Seghal Brothers v. Bharat Bank Ltd. AIR 1961 Punjab 439, Bharat Bank Ltd. v. M/s. Seghal Brothers AIR 1960 Punjab 459, Oudh Commercial Bank Ltd. v. Thakurain Bind Basni Kuer AIR 1939 PC 80, Ram Das v. Ali Bahadur AIR 1933 Pesh. 53, Haji Hafiz Abdul Shakoor Khan v. Administrator Municipal Committee, Multan PLD 1951 Lah. 32, Sultan Ahmed Sharif v. Mathura Mohan Chowdhury PLD 1958 Dacca 36, Islamic Republic of Pakistan v. Muhammad Saeed, PLD 1961 SC 192, Chaudhry Muhammad Nawaz v. Chaudhry Rehmat Ali 1994 SCMR 349, Girish Chandra Santra v. Purana Chandra Bhattachar Jya AIR 1944 Cal. 53 and Dr. Major Abdul Ahad Khan v. Muhammad Iqbal PLD 1989 Kar.
102. Mr. Mansoorul Arfin, a learned senior counsel was appointed as amicus curiae to assist the Court in determining the question as to whether an objection filed to the execution application can be treated as an application under Order XXI, Rule 2(3), C.P.C. Without making compliance of rule 23-A of Order XXI, C.P.C.. Learned amicus curiae has contended that if the objection is considered to be an application under Order XXI, rule 2(3), C.P.C. The same in terms of Article 174 of the Limitation Act has to be filed within 90 days from the date of payment or adjustment. He has further stated that apparently the condition provided in sub-rule (3) of rule 2 of Order XXI, C.P.C.
7. Has not been complied with inasmuch as there is no adjustment made in writing to be recognized by the Court. He has also submitted that the question of considering the objection to be an application under Order XXI, Rule 2(3), C.P.C. Will also attract the provision of Rule 23-A of Order XXI, C.P.C. And the Judgment Debtors will be required o fulfil this condition precedent. He has further submitted that in case the Judgment-Debtor does not file an application under Rule 2(3) of Order XXI,C.P.C. In 90 days and if the Decree Holder does not accept payment or adjustment, the remedy of the Judgment-Debtors is to file suit for recovery of money paid in terms of Rule 29 of Order XXI, C.P.C. He has also submitted that Rule 23-A will not be applicable if the application under Rule 2(3) of Order XXI, C.P.C. Is filed in 90 days and has cited the case of Muhammad Jamil (supra).
8. ' Dr. Farogh Naseem learned counsel for the judgment-Debtors in respect of the point of limitation has relied upon the cases of Abid Hussain v. Kunj Behair Lal AIR 1939 All. 581 and A.T.N.A.T.
9. Chokalingam Chettyar v. A.K.R.M.M.N.M.N. Naryana Chettyar AIR 1938 Rangoon 328.
10. ' Learned counsel for the Decree-Holder on the other hand has contended that the adjustment of the decree claimed by the Decree Holder cannot be considered because it is not certified. He has further contended that Rule 23-A will still be applicable and has relied upon Oudh Commercial Bank Limited (supra), Anath Nath Birwas Ddwarkanath Chakravati AIR 1939 PC 86, Chowdhry Abdul Sobhan Sahib v. Kanti Ramana AIR 1945 Mad. 161, Kirishna Govind Patil v. Moolchand Keshavechand Gujar AIR 1941 Born. 302 and Chaudhry v. Aliraja AIR 1928 Cal.
527. As regards the point of limitation, the learned counsel has relied upon the case of Dr. Major Abdul Ahad Khan (supra), Abdul Ghani v. Rasif Khan PLD 1994 AJ&K 8, Muhammad Ishaque Ali v.
11. Heeralal Seraogi PLD 1964 Dacca 637, Makachhed Molla v. 'Abdul Jabbar Molla PLD 1956 Dacca 96, Fatimunissa v. Asghar Hussain AIR 1928 Oudh 195, Mehbunissa Begum v. Mehdunissa Begum 1925 Bom. 309, Shiraldas Mohandas v. Lalchand Vallabdas AIR 1933 Sindh 305 and B. Mourari Lal v.
12. Raghbir Saran AIR 1934 All. 2,09. Learned counsel has further submitted that no contract for settlement was concluded and there was no adjustment and that the alleged contract is void being without consideration and has relied upon the cases of AlHuda Hotels and Toursim Company (supra), Messrs Shalsons Fisheries Limited Karachi v. M/s. Lohmann and Company PLD 1982 Kar. 76, S.Udham Singh v. S. Atma Sindh AIR 1941 Lah.
149. Mst.Bhagawani v. Lakhim Ram AIR 1960 Punjab 437 and Anarunchallam Chettyar and A.P.
13. Bhagchi v. Mrs. F. Morgan AIR 1935 All.513.
14. ' I have considered the submissions of the learned counsel.
15. ' Though the learned counsel for the parties have made extensive submissions on the merits of the execution application and on the objections/application, but before dilating upon such submissions, it appears that the question, as to whether the judgment debtors may be asked either to deposit the decretal amount in court or furnish security for its payment in terms of Rule 23-A of Order XXI, C.P.C., needs to be examined first. The judgment debtors have filed objections which the learned counsel for judgment debtors submits that it may be treated as an application under sub- rule (3) of Rule 2 of Order XXI, C.P.C. With prayer that the decree stands satisfied by adjustment in writing. In the cases of Ganga Dehil Rai and Abid Hussain (supra) cited by the counsel for judgment debtors it has been held that an application by the judgment debtor praying for an adjustment to be recorded need not to be a document 'separate' from the objections filed by him on the ground- of such adjustment. Apparently, the observations in these two cases are that the application for adjustment and the objections in essence are one and the same document. In any case section 47, C.P.C. Also provides that all questions arising between the parties to the suit in which the decree was passed or their representative and relating to execution, discharge or satisfaction of decree shall be determined by the court executing the decree and not by a separate suit. In the case of Happy Family Associates (supra), the Supreme Court of Pakistan has observed that the provision of Rule 23-A of Order XXI, C.P.C. Is mandatory and the objection to the execution by judgment debtor cannot be considered unless the judgment debtor deposits the decretal amount in Court or furnish a security for its payment. In the case of Gul Muhammad Mir Bahar (supra) a learned single Judge of this court noted the fact that the judgment debtor has filed objections to the execution application in the form of an application under Order VII, Rule 11, C.P.C. It was noted in the order that though there is nobody in attendance to prosecute this application but in view of Order XXI' Rule 23-A, C.P.C. Objections are not to be heard unless the judgment debtor deposits the decretal amount or furnishes security which ever ordered by the court. In the case of Qadir Ahmed Siddiqui (supra) Mr. Justice Zaffar Hussain Mirza as a Judge of this court made the following observations: "6. On a careful examination of scheme of the Code of Civil Procedure, I am of the view that there is no warrant for the contention that section 47 and Order XX1, rule 23-A, C.P.C.. Are to be read independent of each other or that section 47 furnishes an independent right to remedy relating to execution of a decree. Section 47 is included in Part 2 of C.P.C. The main title of which is 'execution'.
16. This part deals with the procedure and powers of the Court in execution of a decree. Section 47 itself has been captioned with a sub-title: "Questions to be determined by Court executing decree".
17. The section itself provides that all questions arising between parties relating to the execution, discharge or satisfaction of the decree shall be determined by the Court executing the decree and not by separate suit. From the bare reading of section and the scheme in which it is placed in the Code of Civil Procedure it is quite clear that section 47, C.P.C. Postulates the determination of questions relating to execution of a decree by the Court which is executing the decree. The words are not "the Court competent to execute the decree". It is, therefore, difficult to agree with the learned counsel or judgment-debtor that this section provides an entirely independent right to remedy as to questions relating to execution of the decree. The obvious intention was to exclude and bar the right to file a separate suit as to questions inter alia relating to the execution of a decree. In this view of the matter it is patently obvious that the provisions of Order XXI, C.P.C. Which also relate to the execution of decree and provide for detailed procedure in that regard are to be read with section 47, C.P.C. Rules 22 and 23-A pertain to the procedure for disposal of execution application. On a proper reading of the provision of the aforesaid rules it appears that the right to raise objection was substantively extended to the judgment-debtor under rule 22 of Order XXI, C.P.C. And the scope of the objections that can be raised in execution is governed by. Section 47, C.P.C. The objection as to the non-executability of the decree obviously relates to the execution of the decree and a Court would clearly be barred from considering the same under the provisions of rule 23-A unless the judgment-debtor deposits the decretal amount in the Court or furnishes the security for its payment. The mere fact that in a case where the Court has not yet issued notice to the judgment-debtor or where no such notice is required to be given, would not entitle the judgment debtor to by-pass the provisions of rule 23-A and be heard without compliance thereof."
18. Now the rule appears to be that the provisions of Order XXI, C.P.C. As it relates to the objections to the execution of a decree are to be read in conjunction with the provision of section 47, C.P.C.
19. Which lays down the scope of the objections that can be raised in execution. Section 47 as noted above empowers the executing court to determine questions relating to execution, discharge and satisfaction of decree. It bars a separate suit where question is within the scope of this section that a court is barred from considering such objections unless the judgment debtor makes compliance of Rule 23-A by depositing the decretal amount in court or furnishes security for its payment. The plea of the judgment debtors, in substance is an objection which is within the scope of section 47, C.P.C. As it relates to the question of execution, discharge and satisfaction of a decree which can only be considered when the judgment debtors deposit the decretal amount in court or furnish security for its payment as provided in Rule 23-A of Order XXI, C.P.C. Having come to such conclusion, all other points raised by the learned counsel need not be considered at this stage but will be considered after the judgment debtors have made compliance of Rule 23-A. The judgment debtors are directed to furnish security in the sum of Rs,2,481,013,802.21 within one month from this order to the satisfaction of the Nazir of this Court.
20. ' I am grateful to the assistance which the learned amicus curie has extended during the course of hearing of this matter. Adjourned to a date in office.