' MUHAMMAD KHALID MEHMOOD KHAN, J.---Through this single Judgment I propose to decide two Civil Revisions i.e,. Civil Revision No,1785 of 2001 and Civil Revision No, 1786 of 2001 which are against the same order.
2. Inayat Ali etc. Filed a suit for declaration against Muhammad Ashiq and others, The suit was finally decreed vide order dated 14-5-1994 in terms of compromise Exh.C-1. According to Exh.C-1 it was agreed that the respondents Nos.1 to 7 will pay Rs,1,50,000 through a Bank draft favouring, Siddique son of Barkat Ali up to 15-4-1995 and in case the amount so agreed will be paid up to 15- 4-1995 the suit of the petitioners Inayat Ali etc. Will be deemed to be dismissed and in case the respondents Muhammad Ashiq etc. Failed to pay a sum of Rs,1,50,000 up to an agreed date in that case the suit of the petitioners will be deemed to be decreed.
3. The respondents failed to pay the sum of Rs, 50,000 and as such the suit of the plaintiff was decreed. The petitioners filed an execution of decree. The respondents filed objections against the said decree. The learned trial Court framed the issues and vide order dated 28-10-1998 accepted the objections of judgment-debtors, The petitioner assailed the order dated 28-10-1998 through an appeal which too was dismissed on 17-5-2001, hence the present revision petition.
4. Learned counsel for the petitioners submits that learned Executing Court has no power to go behind the decree, he submits that the decree dated 14-5-1994 was specific in nature, wherein default clauses for both the parties were available. It was specifically agreed between the parties that the respondents will pay a sum of Rs, 1,50,000 up to 15-4-1995 through a Bank draft and in case they failed to do so the suit of the petitioners will be deemed to be dismissed, likewise if the respondents failed to pay the amount agreed above, the suit of the plaintiffs will be decreed.
5. Learned compel for the petitioners submits that the decree was final in nature and the learned trial Court was not competent to reexamine the facts of the case especially the compromise between the parties.
6. Learned counsel for the respondents submits that it is the petitioners who managed the default and succeeded to obtain a decree in his favour. The respondents continued to contact the petitioners for making the payment in terms of a decree, but the petitioners failed to receive the amount and as such the alleged default was an engineered default. He supports the orders of both Courts below.
7. Heard, record perused.
8. It is an admitted fact between the parties that target date for payment of Rs,1,50,000 in terms of Ex.C-1 was 15-4-1995 and in case of default of either of the parties consequence thereof was known. The respondent filed objections claiming that he was at Tashqand in connection with his employment. He came from Tashqand on 8th of April, 1994 for making the payment of Rs,1,50,000 in terms of a decree. He produced Bank Officer and 3 other witnesses. The Bank Officer while appearing, as A.W.1 deposed that on the request of respondents he prepared a pay order of Rs, 1,50,000 on 17-4-1995. The said pay order is still lying unpaid. The respondent appeared as A.W-3 and deposed that he contacted the petitioner and requested him to accompany him to the Bank for transferring the amount in his account. He further submits that the petitioner continued to linger on the matter on one pretext or the other. Sometimes he claims that he is sick and unable to accompany him to the Bank and sometime he refused to even to see him. He deposed that he searched the account of the petitioner in his Bank, but could not succeed. He further deposed that the pay order dated 17-4-1995 was received by the petitioner which is still in his possession.
9. The evidence produced by the respondents has no avail because it was the duty of the respondents to get the draft prepared on or before 15-4-1995. He deposed in his statement that 13th and 14th of April, 2005 were public holidays and as such the draft could not be prepared, but he has given no explanation why the draft was not prepared on 16th of April, 1995 and pay order was got issued on 17th April 1995. It is an admitted fact that for purchasing the draft from the Bank there is no need for the account number of the beneficiary. The draft is an independent transaction between the Bank and the purchaser and the beneficiary does not matter. If the respondent was interested to pay the amount on or before 15th of April, 1995 he should have got it preparea before 13th of April 1995, as it was in his knowledge that 13th and 14th of April 1995 are the public holidays.
However, if he failed to get the draft prepared on 14th and 15th of April 1995 due to public holidays he was duty bound to get the said draft prepared on 16th of April, 1995 but he failed to do so and as such the default clause come into operation and the suit was decreed by the learned Civil Court in terms of compromise Exh. C-1.
10. Learned counsel for the respondents further argued that the pay order was handed over to the petitioner on 17-4-1995 when it was prepared and the said pay order is still in possession of Siddique. The respondent when appeared as AW has not deposed in his examination in chief that he handed over the pay order to petitioner on 17th April, 1995, if he has handed over the same to the petitioner, he was bound to obtain the receipt. The pay order contains the counterfoil which is meant for acknowledgement of pay order by the beneficiary. He has not deposed in examination- in-chief that he has handed over the pay order to the beneficiary and he has not handed over the counterfoil to him. Further in cross-examination he specifically asked the question to the petitioner that he has handed over the pay order to him the petitioner immediately replied that he never handed over the pay order to him and as such after the denial of the petitioner it was incumbent on the respondent to prove this fact through an independent evidence. None of the witnesses produced by the respondent deposed that in their presence the pay order was handed over to the petitioner or the petitioner has issued the receipt thereof. No doubt the Bank Manager while appearing as AW has stated that the entry of pay order is still outstanding, un-responded, but it does not mean that the pay order is in possession of the petitioner. The pay order may be in possession of respondent as when he failed to get the draft prepared on or before 15-4-1995, he managed to get a pay order prepared by the Bank Officer on 17-4-1995 and the said pay order may be in his possession. The Bank Officer has rightly deposed that they have issued a pay order on 17-4-1995 and as such the outstanding entry of pay order does not establish that the pay order is in possession of the petitioner.
11. As in the decree a specific date was fixed with the agreement of the parties and as such the failure of the respondent could not be condoned by the Court.
12. Learned Executing Court as well as the appellate Court has failed to appreciate the terms of decree and also not properly read the evidence available on record. The findings of learned trial Court as well as appellate Court that it was Muhammad Siddique the petitioner who failed to fulfil his part of agreement is against facts and law. Even if it is assumed that the petitioner was not accepting the draft/pay order, the petitioner can file an application before the Court along with the original draft.
13. The respondents failed to produce any evidence on record showing that on 8th of April, 1995 he came to Pakistan, the money was available with him. There was no need for accompanying the petitioner in the Bank for preparation of draft nor any Bank account of the beneficiary is required for the issuance of draft. As far as the arguments of learned counsel for the petitioner that the Executing Court cannot go beyond the decree and objection of the respondent was wrongly entertained by the Executing Court. Is not sustainable in the eye of law under section 47 of Civil Procedure Code it is the Executing Court who has to decide all the disputes between the parties to the decree. As the decree was conditional and it was only the Executing Court who has to ascertain. Who was at fault, so the objections filed by the respondents were rightly entertained by the Executing Court. However, the above said discussion will show the evidence produced by the respondent is not helpful for substantiating his stance that the petitioner has defaulted in terms of decree.It is the respondent who has not complied with the terms of decree which is evident from the fact that the pay order was rightly entertained by the Executing Court. However, the above said discussion will show the evidence produced by the respondent is not helpful for substantiating his stance that the petitioner has defaulted in terms of decree. -It is the respondent who has not complied with the terms of decree which is evident from the fact that the pay order was issued on 17-4-1995, whereas the draft was to be handed over to the petitioner on or before 15-4-1995.
14. In view of above the findings of learned courts below are against facts and law and as such is not sustainable in the eye of law, resultantly I set aside the judgments of both courts below and dismiss the objection petition filed by the respondents. There is no order as to costs.