' ZIA-UR-REHMAN KHAN, J.---Petition in hand is directed against the judgment and order dated 18- 7-2009 recorded by the learned Additional District Judge Charsadda whereby while dismissing the appeal of the petitioner the judgment and order dated 14-5-2009 rendered by the learned Civil Judge, dismissing the application of the petitioner for setting aside the ex parte decree dated 19-5- 2008, has been upheld.
2. Short background of the instant litigation is that respondent No,1 in the capacity of plaintiff filed a suit against the present petitioner and Mst. Gul Bibi, the predecessor in interest of the remaining respondents, for declaration injunction and possession before the Court of Senior Civil Judge, Charsadda on the ground that the suit property was owned by his sister by virtue of inheritance of Mst. Taj Bibi and the alleged gift of the said property in favour of the petitioner / defendant is fraudulent, collusive and in this respect the mutation bearing No, 4295 dated 4-10-2005 is ineffective upon his rights. On being summoned, the petitioner, being defendant No,1, submitted her written statement wherein she raised many legal and factual controversies but it was on 27-9- 2006 she was found absent and on 12-10-2006 she was proceeded against ex parte. The case was fixed for recording ex parte evidence and it was on 19-5-2008 when ex parte decree was granted against her. The said decree was put to execution and on 9-4-2009 the petitioner submitted an application before the trial Court for setting aside the ex pane decree but the learned trial Court vide order dated 14-5-2009 rejected her application and her appeal too, vide order dated 18-7- 2009 met the same fate, thus, the instant revision petition.
3. Learned counsel for the petitioner mainly contended that although the petitioner had submitted written statement on 29-6-2006 and later on due to the shifting of her abode to another place she remained unaware about the proceedings of the case and the decree, so granted against her, is liable to be set aside. He next contended that the main case from time to time was transferred from the jurisdiction of one Court to the jurisdiction of another Court and in that eventuality the transferee Court was legally bound to effect the service of the petitioner again before passing the ex parte decree. Reliance in this respect has been placed upon few judgments reported as 1995 MLD 484, 1993 MLD 1025, 2000 YLR 1878 and 1983 CLC 286.
4. On the contrary, the learned counsel for the respondent / decree holder vehemently opposed the contentions of the learned counsel for the petitioner maintaining that once the petitioner entered appearance and joined the proceedings of the case by submitting a proper written statement, then she should have submitted an application for setting the ex parte decree under Article 164 of the Limitation Act where under the prescribed period of limitation is one month. He referred to two judgments of the august Supreme Court reported as 2006 SCMR 631 and 2005 SCMR 609.
5. I have heard pro and contra arguments of learned counsel for the parties and with their valuable assistance have gone through the material available on record.
6. At the very outset I would like to observe that in view of the judgments referred to by the learned counsel for the respondent, the prescribed period of limitation for setting aside the ex parte decree under Article 164 of the Limitation Act is one month and there can be no second opinion in this regard. Her application for setting aside the ex parte decree was indeed beyond the prescribed period of limitation. Be that as it may, but the striking feature of this case which imparts strength to the version of the petitioner is that after the petitioner was proceeded against ex parte, the case was posted for recording the ex parte evidence of the respondent and before the said decree could be passed the main suit was transferred from the jurisdiction of the said Court vide order dated 24-10-2007 under the directions of the learned Sessions Judge to the jurisdiction of another Court which received the same on the same date but instead of issuing fresh notices to the petitioner it was observed "that the defendants are already placed ex parte". Proceedings were continued and it was once again on 28-2-2008 when the case was transferred from the jurisdiction of the said Court to another Court under the directions of the learned District Judge and was received by the said Court on 19-3-2008 but again, no fresh summon was issued to the petitioner as a transferee Court with the result that on 19-5-2008 the ex parte decree was granted.
7. The moot question which crops up for consideration at this juncture is as to whether the transferee Court was required to have issued notice of appearance to the petitioner inspite of an order for ex parte proceedings against her. The answer is in positive. Because, after the transfer of the main suit from the jurisdiction of one Court to the jurisdiction of the other Court, it was the legal duty of the transferee Court to take the trouble of serving the absent defendant once again. The judgments, referred to by the learned counsel for the petitioner squarely promote the cause of the petitioner because in all these judgments it has been unanimousty held that on the transfer of suit through administrative order notice is required for transfer of suit even in the presence of an order for ex parte proceedings against a particular defendant and the same would not deprive him of a right to receive such notice. Even this Court in a case reported in PLD 1988 Peshawar 33 while dealing with similar legal question has observed as under:-- "---0.IX, Rr. 6, 7 and 13---High Court Lahore Rules and Orders, Vol.I, Chap. XIII, para.6---Ex parte proceedings- Case transferred by administrative order from one Court to another pending ex parte proceedings against defendants-Defendants, held, were entitled to notice after transfer- When such notice was not given, proceedings taken against defendants since transfer were liable to be set aside".
' Likewise, the relevant citations of the other judgments are also proving helpful in which the same view has been duly endorsed.
8. In this view of the matter, the petitioner has fully succeeded to make out a case of indulgence of this Court within the purview of section 115, CPC. Even otherwise, the petitioner being a "Parda Nasheen" lady has got a special right of being heard on merits in support of her respective legal rights, coupled with the fact that law favours adjudication on merits.
' Resultantly, the instant revision petition being full of substances is accepted, the impugned judgments and orders including the ex parte decree dated 19-5-2008 are hereby set aside and the learned trial Court is directed to give proper opportunity to the petitioner in defending her cause, in the light of defense set up by her in her written statement. Parties are left to bear their own costs.
Petition accepted.
2010.0 L C 1462 [Quetta] Before Jamal Khan Mandokhail, J ABDUL SATTAR and 10 others---Petitioners versus Haji FATEH KHAN and 6 others---Respondents Civil Revision No,400 of 2010, decided on 29th June, 2010.
Civil Procedure Code (V of 1908)--- ----0. XX, R.6, Ss. 2(2) & 152---Clarification of decree---Application for-Contents of decree---Suit having finally been decreed by the Trial Court in favour of plaintiffs, judgment debtors filed application under 5.152, C.P.C. For clarification of decree passed in favour of the decree-holders-- Said application had been accepted and clarification of decree ordered-- Validity--While passing a decree, there should be formal expression of adjudication, which must be precise and deliberate---Under Order XX, R.6, C.P.C. The decree would agree with the judgment and should contain particulars of the claim; and also to specify clearly the relief granted-- Decree and judgment were separate and distinct documents and it was a decree that had to be executed--- Decree should be self-contained and capable of execution, without reference to any other document---Under S.152, C.P.C., where the two documents, did not agree the court could correct the decree and also had inherent power to bring them in consonance with each other---, While exercising powers under 5.152, C.P.C. For correction/amendment in the decree, the court had togather material from the judgment---In the present case, the Trial Court, while deciding the issue of relief, had given explanation, but in decree, no explanation of the rights of the parties had been specified---Apparently, the decree before amendment/clanfication was not clear and was ambiguous, as such was not executable---By making the necessary clarification in the decree in accordance with S.152, C.P.C., no illegality or irregularity had been committed by the Trial Court--- After clarification the decree had become absolutely in consonance with the judgment passed by the Trial Court and had become executable---Impugned order, was upheld, in circumstances. [pp. 1463, 1464] A & B Abdul Ghani Mashwani for Petitioners. Naeem Akhtar Afghan for Respondents.
Date of hearing: 10th June, 2010.
' JAMAL KHAN MANDOKHAIL, J.---Briefly stated facts of the case are that, a suit was filed by petitioners against respondents, which was decreed in favour of petitioners by means of judgment and decree passed by Qazi Dasht, on 18-07-2009. Since no appeal has been filed, as such, it attained finality.
' The respondents have filed an application under section 152 of Civil Procedure Code for clarification of the relief granted to the decree-holder. The application was contested by petitioners/decree-holder alleging therein that the same is not in accordance with provisions of section 152 of C.P.C., as such requested for dismissal of the same.
' The trial Court, after hearing the parties, has accepted the application and ordered clarification of the decree by means of order dated 20-08-2009, hence this petition.
2. Learned counsel for petitioners submitted that the trial Court, after pronouncement of judgement and decree was seized to interfere in the decree. Since no clerical or arithmetical defect or error has been point out in the decree by the applicant, therefore, no amendment, alteration or clarification could be made. According to him, the trial Court has failed to consider such aspect of the case and has passed an order contrary to law.
3. Learned counsel for respondents has vehemently opposed the contention and has stated that the decree follows the judgment, therefore, the relief, granted to any party should have been mentioned in it. Since the earlier decree was not exhaustive, as such, was not capable of execution, therefore, its clarification was sought, which was very much within jurisdiction of the trial Court in view of section of 152 of C.P.C.
4. I have heard learned counsel for the parties and perused the record. Before going to discuss the merits in detail, it would be appropriate to go through the definition of decree, as mentioned in sub clause (2) of section 2 of C.P.C., which is reproduced herein below:--
(2) "decree" means the formal expression of an adjudication which, so far as regards the Court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit and may be either preliminary or final. It shall be deemed to include the rejection of a plaint (the determination of any question within section 144, and an order under rules 60, 98, 99, 101 or 103 of Order XXI) but shall not include:--
(a) any adjudication from which an appeal lies as an appeal from order, or
(b) any order of dismissal for default.
Explanation.--A decree is pereliminary when further proceedings have to be taken before the suit can be completely disposed of. It is final when such adjudication completely disposes of the suit: It may partly preliminary and partly final.
' Perusal of above definition shows that it is the decree, which is to be executed and not the judgment. While passing a decree, there should be formal expression of the adjudication, it must be precised and deliberate. Moreover, as per Order XX Rule 6, C.P.C., the decree shall agree with the judgement and should contain particulars of the claim and also to specify clearly the relief granted. The decree and judgment are separate and distinct documents, it is a decree that has to be executed, and as such, it should agree with and be in accordance with the judgment, therefore, it should be self-contained and capable of execution, without reference to any other documents.
Under-section 152 of C.P.C., where the two documents do not agree, the Court can correct the decree and also has inherent power to bring them in consonance with each other. Thus, while exercising powers under section 152 of C.P.C., for correction/amendment in the decree, the Court has to gather material from the judgment.
' In present case, the trial Court, while deciding the issue of relief, has given explanation, but in decree, no explanation of the rights of the parties have been specified. Apparently, the decree before amendment/ clarification was not clear or was ambiguous, as such, was not executable. By making the necessary clarification in the decree in accordance with the above stated provisions of law, no illegality or irregularity has been committed by the trial Court. After clarification, the decree has now become absolutely in consonance with the judgment passed by the trial Court, therefore, the same has now become executable.
5. Thus, in view of what has been stated and discussed hereinabove, the petition, being meritless, is dismissed and the order impugned dated 18-7-2009, passed by Qazi, Dasht, is hereby upheld.