' MUNIB AKHTAR, J.---The plaintiffs the present decree holders, filed suit against the Federation of Pakistan and its concerned officers seeking recovery of a certain sum of money from the defendants in the circumstances stated in the plaint. The suit, being Suit 511/1983, was contested by the defendants, but ultimately decreed in favour of the plaintiffs by judgment and decree dated 30-9-2010, whereby the defendants were ordered to pay the sum of Rs,13,605,665.93 along with mark-up/profit on the aforesaid amount from the date of submission of a commissioner's report dated 19-5-1993. The decree having remained unsatisfied, the plaintiffs (herein after the "Decree Holders") filed the present execution application on 10-11-2010 against the defendants (hereinafter referred to as the "Judgment Debtors"). Notices were issued and the Judgment Debtors put in appearance before the Court on 8-4-2011. Certain orders were thereafter made, and on 30-5-2011, the Judgment Debtors were directed to deposit the sum of Rs,46,979,836 with the Nazir of the. Court within a period of two weeks. Subsequently, a number of applications were moved by the Judgment Debtors, including the application presently under consideration, i,e,, C.M.A. 380/2011. This application was filed in terms of section 82, C.P.C., which reads as follows: "82. Execution of decree.--(1) Where the decree is against the Government or against a public officer in respect of any such act as aforesaid, a time shall be specified in the decree within which it shall be satisfied; and if the decree is not satisfied within the time so specified, the Court shall report the case for the orders of the Provincial Government.
(2) Execution shall not be issued on any such decree unless it remains unsatisfied for the period of three months computed from the date of such report."
' Submissions were heard by learned counsel for the parties on this application on 12-7-2011, and orders reserved.
2. Learned counsel for the Judgment debtors submitted that the provisions of section 82 were mandatory in nature. He submitted that in the first instance, as required by subsection (1), the decree itself had to state a period within which it was to be satisfied. If the decree remained unsatisfied with the stipulated period, then a report had to be made to the Provincial Government for its orders, and execution could not be issued for a period of three months computed from the date of such report, as required by subsection (2). Learned counsel submitted that both these requirements had not been fulfilled in the present case and that therefore, the decree could not be executed. Learned counsel placed reliance on Pakistan and another v. Sarwar and Co. (Pvt.) Ltd.
NLR 1999 Civil 409; 1998 CLC 1817 (LHC; SB), Punjab Province v. Shaikh Abdul Ghani 1988 MLD 2912 (LHC, SB) and Assistant Commissioner and others v. Abdul Ghafar and others PLD 1994 Peshawar 161 (DB). He submitted that it was well settled that if the law required something to be done in a particular or prescribed manner, then it had to be done in that manner or not at all. Since admittedly the decree did not provide for a specific period for its satisfaction and no report had been made to the Provincial Government, learned counsel submitted that execution proceedings had to come to an end, or at least could not be continued.
3. Learned counsel for the Decree Holders opposed the application. She submitted that more than one year had passed since the making of the decree and it remained unsatisfied. She submitted that before the filing of the present application, the Judgment Debtors had not taken any such plea, and even in an appeal that had been filed against the decree, no such ground had been taken by them. (It may be noted that there do not appear to be any interim orders in the aforesaid appeal.) Learned counsel submitted that the Judgment Debtors were estopped by their own conduct from now raising any plea under S.82, C.P.C. She also made reference to certain sums of money that had been earlier paid by the Judgment Debtors to the Decree Holders without raising any such plea, and placed on record the orders that had been made in this regard. She submitted that section 82 was therefore no bar to the execution proceedings. She placed reliance on Mst.
Shanti v Karachi Transport Corporation and others 2000 CLC 595 (SHC; SB) and Pakistan v. Mrs. Khalida Nazir 1991 CLC 563 (LHC; SB).
4. Exercising his right of reply, learned counsel for the Judgment Debtors sought to distinguish the two decisions relied on by learned counsel for the Decree Holders. He further submitted that the payments made earlier to the decree Holders, and relied on, had not been made under or in terms of any decree. Finally, he contended that the plea in terms of section 82 was a legal plea, which could therefore be taken at any stage.
5. I have heard learned counsel for the parties and have examined the record with their assistance and have considered the case-law relied upon. The intent behind section 82 is clear. It is to give the government (or, as appropriate, a public officer who was acting in discharge of his public duties) an opportunity to satisfy the decree without the decree holder having to resort to execution proceedings. The reason for giving the government such an opportunity appears to be premised on two grounds. Firstly, it is presumed that, subject to the government availing any rights of appeal, it would itself choose to obey and satisfy the decree of a court of law. Secondly, and this would seem to follow from the first ground, it would perhaps be embarrassing for the government to be exposed, like any other judgment debtor, to execution proceedings, since, after all, the executive, like the judiciary, is one of the great departments or organs of the State. It will be seen from the foregoing that, as presently relevant, section 82 can be regarded as having two elements, both of which are directed towards deferring initiation of execution proceedings against the government.
In principle of course, a decree holder can institute execution proceedings on the very next day after a decree has been made in his favour, and that would account for the first element of section 82, namely, that the decree itself should provide for a period for its satisfaction. If however, notwithstanding that such period has been provided, the decree nonetheless remains unsatisfied, and the decree holder is constrained to initiate execution proceedings, then the second element of section 82 comes into play. This provides that a report be made by the court to the Provincial Government forits orders, and if the decree still remains unsatisfied for a period of three months from the date of the report, then execution may be issued. Thus, section 82 contemplates that two distinct opportunities be given to the government to satisfy the decree, and if the government remains recalcitrant despite such opportunities, then it is to be treated in the same manner as anyother judgment debtor, i,e,, that execution may be issued against it. It will therefore be seen that the essence of section 82 lies in granting the opportunities as aforesaid to the government.
6. The two cases relied on by learned counsel for the Decree Holders are, in my view, distinguishable. In the decision of this Court, i,e,, the Karachi Transport Corporation case, it was expressly noted that the Judgment Debtors therein had .Allowed certain orders to be made in the execution proceedings with their consent, which orders amounted to the levy of execution. In the present case the Judgment Debtors have resisted execution, and in my view the two earlier payments relied upon by learned counsel for the Decree Holders do not amount to an acceptance of the execution proceedings. In the Lahore High Court decision relied on, i,e,, Mrs. Khalida Nazir's case, it appears that the decree itself did give the government a period of 15 days to satisfy the same. Admittedly, in the present case, the decree does not specify any period for its satisfaction.
7. I now turn to consider the case-law relied on by learned counsel for the Judgment Debtors. In the Peshawar High Court case, it appears (from an observation made at page 165) that no decree as such was drawn up. This case is therefore, clearly inapplicable to the present proceedings. It is to be noted that in the two Lahore High Court decisions relied on, the High Court, while directing that the provisions of section 82 had to be complied with, sent the matter back to the executing court. In the Sarwar and Co. Case, the execution application was deemed to be pending and the executing court was directed to report the matter to the Provincial Government, and if the decree remained unsatisfied for a period of three months, it was held that the execution proceedings could then continue. In the Shaikh Abdul Ghani case, the executing court, which appeared also to be the court that had made the decree, was directed to make an order to bring the decree in conformity with section 82. It may be noted that in the Sarwar and Co. Case, the Lahore High Court placed reliance, inter alia, on a decision of the Patna High Court reported as Governor General in Council v Piramal Marwari AIR 1948 Patna 179, which appears to a leading Indian authority of section 82. (It may be noted in passing that in India, the C.P.C. Has since been amended in a manner that obviates the problem or issue presently under consideration from arising.) The Patna High Court was invited to declare a decree that did not conform to the requirements of section 82 as void, but the High Court expressly refused to come to any such conclusion. The High Court, insofar as I have been able to follow its decision, appears to have concluded that decree that did not conform to the requirements of section 82 was inchoate, and could not be executed without being brought in line with that section. Is pertinent to note that the High Court observed that the executing court was the same court which had made the decree, and it therefore, directed I court to "proceed to complete the decree" as required by section 82 and to execute it, should it continue to remain unsatisfied.
Thus, it is clear from a consideration of the decisions relied on by learned counsel for Judgment Debtors, that non-compliance with the requirements of section is not fatal for the decree. A decree can be suitably amended to bring it in conformity with that section. It is obvious that such an order could be made under section 152, C.P.C., the provisions of which, it is to be noted, can be invoked by the court on its own motion. Obviously, if the court that had made the decree is also the executing court, the matter is much simplified. Thus, in my view, the maximum extent to which the case-law relied on by learned counsel for the Judgment Debtors goes is that a non-compliance with the provisions of section 82 results only in a hiatus, and once the decree has been brought in conformity with that section and still remains unsatisfied, then execution can be issued, or if already issued, can be resumed.
8. In my respectful view, the case-law relied on by learned counsel for the Judgment Debtors places a premium on form over substance. It is of course true that in some cases, the decree must be drawn up in a particular manner or form. However, in my view, that is not, and ought not to be regarded as being, the case with section 82. The reason is that, as explained above, the objective behind this section is simply (and only) to give the government an opportunity to itself satisfy a decree made against it without a decree holder having to take recourse to coercive means, and the reason why the government, as opposed to other judgment debtors, should be granted such an opportunity has also been explained above. Therefore, in my view, if the purpose of section 82 has been achieved in substance, then no useful purpose would be served in setting the clock back by requiring the decree holder or the court to take steps that, in the circumstances, would be purely nominal in nature. In the present case, since this Court is itself both the court that made the decree and the executing court, it would be a simple thing to invoke section 152 and, as it were, set matter aright with regard to section 82. However, in my view, on the plane of principle, the proper interpretation of section 82 should be to regard it as mandatory in substance, but directory in form.
Thus, as long as the essence of the section has been complied with, and the government has been given the two opportunities as required by the section, the modalities by which such opportunities have been given should be regarded only as directory. It is therefore necessary now to consider how the two opportunities should be given if they are not in the form contemplated by section 82, so that the mandatory aspect of the section is complied with.
9. The first opportunity, as noted above, is to be given at inception, when the decree is made. In other words, there must be a certain period between the making of the decree and the institution of any execution proceedings. In my view, if such period, in the actual facts and circumstances of the particular case, is reasonable, that is sufficient compliance of the requirement to give this opportunity. As to what would constitute a reasonable period, two observations need to be made.
Firstly, it be noted that subsection (1) of section 82 does not itself specify the to be given to the government to satisfy the decree. Thus, this period e as short or as long as the court deems appropriate, and in the Mrs. Khalida Nazir case noted above, it was as short as 15 days. The reasonableness of the period between the making of the decree and the initiation of execution proceedings must therefore, be measured accordingly. Secondly, it should also be kept in mind whether the government appeared at the trial stage or not, i,e,, whether it contested the suit or was proceeded against ex parte.
10. Insofar as the second opportunity is concerned, that requires a specific period, i,e,, a period of three months from the date of the report to be made to the Provincial Government for its orders.
Now, if the judgment debtor is the Provincial Government itself, this requirement poses no particular problem. If a decree against the Provincial Government remains unsatisfied (whether for a period specified in the decree itself, or for a reasonable period as noted above), then a report can be made to the Provincial Government to enables the latter to make the necessary orders that would be required to satisfy the decree. However, the situation may be a bit different if the judgment debtor is the Federal Government. In that case, in my view, the proper interpretation and application of section 82 has a certain constitutional dimension, which must be kept in mind and alluded to. Since Pakistan is a federal republic, it has two sorts of government, one at the federal level and others at the provincial level. These two levels of government are distinct and separate, and a claimant usually has a claim against only one or other of the governments. Section 80, C.P.C.
Gives due recognition to this by providing that the term "Government" shall in any suit mean, as appropriate, the Federal Government or the Provincial Government. It will be seen that the first part of subsection (1) of section 82 makes reference only to "Government", whereas in its latter part specifically refers to the "Provincial Government" As already seen, the report to be made to the Provincial Government is for its "orders", which can only mean such orders as would ensure that the decree is satisfied. The constitutional question that arises is as to what sort of "orders" can the Provincial Government make in respect of a decree against the Federal Government that remains unsatisfied? Could, for example, the Provincial Government "order" the Federal Government to satisfy the decree? The question is only to be posed for the answer to be obvious. It would be a grave constitutional impropriety for the Provincial Government to issue any "orders" to the Federal Government. In fact, the Constitution only permits the Federal Government, and that also in strictly specified circumstances, to issue directions to Provincial Governments. It is therefore, in my view, not at all clear as to what purpose would be served in requiring the court to make a report to the Provincial Government for its "orders" in a situation where the judgment debtor is the Federal Government: At most, if at all, the Provincial Government could pass on the necessary information to the Federal Government, but that would hardly seem to be the "orders" contemplated by section 82.
11. The foregoing discussion can be summed up as follows. The essence of section 82 is to grant the government two opportunities to itself satisfy the decree. This requirement must be complied with, but if there is substantial compliance, then adherence to a particular form is not mandatory. The first opportunity would be provided if there is a reasonable period (as explained above) between the making of the decree and the institution of the execution application, if the decree itself does not provide any such period. In such a situation, the executing court must satisfy itself that a reasonable period has elapsed. If the court is so satisfied, then if the judgment debtor is the Provincial Government, it must be given the second opportunity by making a report to it as contemplated by section 82 itself. If however, the judgment debtor is the Federal Government, then the executing court may either make a report to the Provincial Government or simply give a period of three months to the Federal Government as judgment debtor, since that would be substantial compliance of the requirements of section 82 and avoid any issue of constitutional impropriety. If in any case, if execution has inadvertently been issued in the meantime, then such execution proceedings must be suspended 'while the opportunities are being given to the government.
However, if the decree continues to remain unsatisfied, then the execution proceedings may be resumed from the point where they were suspended.
12. One final point needs to be addressed. It may seem anomalous to grant the opportunities as aforesaid to the government if it is clear from the record (as is manifestly clear in the present case, in my view) that the decree has remained unsatisfied, and may well continue to remain so.
However, the law has, in its wisdom, chosen to grant a certain privilege to the government over other judgment debtors. It is for the government to decide whether wishes to properly avail the privilege in the spirit and intent of the law, or simply abuse it in order to vexatiously prolong and delay the inevitable.
13. When the foregoing principles are applied to the facts and circumstances of the present case, it will be seen that the decree was made on 30-92010, while the execution application was filed on 10-11-2010. Since the decree in question is a simple money decree, in my view, a reasonable period elapsed between the making of the decree and the filing of the execution, and thus the requirement to grant the first opportunity has been fulfilled. Insofar as the second opportunity is concerned, since the present judgment debtor is the Federation Government, which not merely contested the suit but has put in appearance in the execution proceedings, in my view the requirement would be fulfilled by suspending the execution proceedings for the requisite period.
Accordingly, the order dated 30-5-2011, and other execution proceedings, are suspended for a period of three months from today. But if the decree remains unsatisfied at or by the conclusion of the aforesaid period, then the said order shall revive and the Judgment Debtors shall be bound to deposit the sum specified therein within a further period of seven days from the end of the three month period, and other steps in the execution proceedings, as may be deemed appropriate, may also be taken.
14. The application stand disposed of in the above terms.