' MRS, SYEDA TAHIRA SAFDAR, J.---The petitioner Irfan Bashir feeling aggrieved of the order dated 30th April, 2010 of District Judge, Quetta, whereby his application under section 12(2) Civil Procedure Code (C.P.C.) was dismissed, filed the instant petition contending therein that the trial court arrived to an incorrect conclusion, thereby held that the property of the deceased judgment debtor namely Shaukat Bashir was transferred in favour of his legal heirs, including him (petitioner). It was contention of the petitioner that there was no concept of surety in an execution proceedings, but the court below while treating him as surety, and erroneously proceeded with the matter, thereby committed illegality.
Furthermore, the execution of decree was sought by the decree holder/ respondent No,1 against a dead person, that too, even without bringing his legal heirs on record, and in absence thereof the decree was not executable. It was further contended that the brothers of the deceased judgment debtors were pressurized, and he (petitioner) being one of them, and an employee of a Government Department, was blackmailed, and in compelling circumstances he (petitioner) deposited an amount of Rs,150, 000 (Rupees one lac and fifty thousand only). It was further contention of the petitioner that according to Christian Law he (petitioner) was not liable to pay the debt amount of his deceased brother not being his legal heir; as such the decree cannot be executed against him. The petitioner contended that through misrepresentation and fraud respondent No,1 obtained the decree behind the back of a deceased person, and also filed application for execution of decree against a dead person. But, these aspects of the case were remained unattended. He prayed for setting aside of the order dated 30th April 2010, with further prayer of acceptance of the application filed under section 12(2), C.P.C.
2. The learned counsel for the parties was heard at length. The learned counsel for the petitioner strongly criticized the order of the court below, while contending that initially through judgment dated 26th December, 2005 the suit was partly decreed only to the extent of Shaukat Bashir, but the appellate court on appeal preferred by respondent No,1 altered the judgment, and thereby the respondent No,4 Sohan Masih was also stood liable to pay the decretal amount. The learned counsel contended that the execution proceedings were held on the application filed by respondent No,1; thereby the petitioner was compelled to pay the decretal amount in sheer violation of law. Further, the application filed by the petitioner under section 12(2), C.P.C. Was not properly considered, and the request made was declined. Further, the court below failed to consider that the petitioner was neither party to the suit, nor any notice was served on him. Further, in case of death of the judgment debtor his legal heirs were required to be made party to the proceedings, but it was not done. In absence thereof no proceedings pertaining to execution of decree can be held, nor can it be satisfied. Further, the requirements of Order XXI Rule 16, C.P.C.
We're not fulfilled; therefore, the all proceedings were of no legal effect. The learned counsel further contended that the petitioner was not legal heir of deceased Shaukat Bashir under the Christian Law, therefore, not liable to pay the decretal amount. Further, the execution application was filed against a dead person, and without even issuing process for the second judgment debtor, therefore, of no legal effect. It was contended that the court below was required to frame issues, and call for evidence -for determination of the matter with context to the application filed under section 12 subsections (2), C.P.C., but it was not done, which resulted in an erroneous decision, therefore, liable to be set aside.
3. In reply thereof the learned counsel for respondent No,1 contended that the petitioner being not covered by the term aggrieved person, therefore, not entitled to file an application under section 12(2), C.P.C. The learned counsel further contended that the petitioner himself undertook to pay the decretal amount, thereby submitted a surety to the effect before the court, therefore, he .Was liable to pay the . Decretal amount, and the proceedings were rightly held against him. It was further contended that an application for depositing of decretal amount through installments was also filed by him (petitioner), therefore, in view of section 145, C.P.C. He was liable to pay the decretal amount. The learned Additional Advocate General representing respondents Nos.2 and 3 only contended that as no decree existed against the Government, therefore, they were unnecessarily made party to these proceedings.
4. The papers annexed with the instant petition were not found sufficient to decide the real controversy, therefore, the record pertaining to execution proceedings, and the application under section 12(2), C.P.C. Were called for perusal. The record revealed that initially the suit was filed for recovery of an amount of Rs,3,49,772 (Rupees three lacs, forty nine thousand, seven hundred and seventy two only) along with interest by the present respondent No,1 Singer Pakistan Limited against the Government of Balochistan, through Secretary Population Department, Shaukat Bashir, and Sohan Masih. The suit was tried, and decided through judgment dated 26th December, 2005, whereby the trial court only decreed the suit to the extent of defendant No,3 Shaukat Bashir, found him liable to pay the decretal amount. The appeal preferred by the plaintiff/decree holder, was decided vide judgment dated 29th November, 2006 by Additional District Judge-III, Quetta, whereby the decree was upheld, but with alteration that respondent No,4 Sohan Masih was also decided to be liable for payment of the outstanding amount, thereby ordered that both the judgment debtors were severally and jointly liable to pay the decretal amount.
5. The decree holder/present respondent No,1 Singer Pakistan Limited filed an application bearing No,13 of 2009 on 29th July, 2009 for execution of the decree, which was entertained. The perusal of the application reveals that in its title only name of Shaukat Bashir, and others appeared, but the contents of the application failed to disclose the fact that the judgment debtor Shaukat Bashir had since been died. Rather, it was written therein that according to the Church Certificate MRs, Shaukat Bashir is the only legal heir/successor of the deceased. The details of the property asserted to be owned by Shaukat Bashir were also mentioned in the application. While the decree holder prayed for execution of the decree in terms:- "It is, therefore, humbly prayed that execution of decree may please be made by issuance of warrants of arrest and detention in prison of judgment _debtors as well as attachment, sale and auction of properties of judgment debtors, in the interest of justice."
6. The perusal of the case file pertaining to the execution application further reveals that during course the decree holder moved another application with contention that MRs, Shaukat Bashir had been made party as successor in interest of the deceased judgment debtor. But, the name of the said lady nowhere reflected from the record. Neither, she was ever associated with the proceedings, nor any notice was issued in her name. The order sheets maintained from 29th June, 2009 till 10th August, 2009, on this application were written by the Senior Civil Judge-II, Quetta in his own hand writing, which are not readable, therefore, hard to understand what these orders contained.
7. However, the perusal of the case file pertaining to the execution application further reveals that power of Mr. Munir Hashmi, Advocate was available, but it failed to disclose for whom it was filed.
But, by comparison it appeared that the power was filed on behalf of the present petitioner. Further, the second judgment debtor Sohan Masih, was represented by Syed Ayaz Zahoor, Advocate, who filed his power on 28th October, 2009. Furthermore, an application bearing date 28th October, 2009, with a request for payment of decretal amount in fixed installments, available in the case file. But, as no name appeared in the application, therefore, it was not certain who the applicant was. But, in reply thereof the decree holder asserted that the application was filed by the widow of deceased judgment debtor. But, the order sheets maintained by Senior Civil Judge-II, Quetta failed to disclose the name of the person, who moved the mentioned application. It is painfully observed that all the diary sheets maintained by Senior Civil Judge-II, Quetta, the names of the counsel appearing for decree holder, and judgment debtor were not disclosed. Even there was no distinction that who was appearing for which of the parties. Rather only D/H describe the decree holder, and J/D for judgment debtor. The order sheets also unable to make distinction in the counsel appearing for respondent No,4 the judgment debtor, and for the present petitioner Irfan Bashir. This reflects the negligent conduct, and incompetence of the Judge, a serious note of it is to be taken.
8. The record further reveals that the application filed for fixation of payment of the decretal amount in installments was allowed on 9th October, 2009, in pursuance thereof an amount of Rs,150,000 was paid in the court by Irfan Bashir being described as ( DA) ) judgment debtor in the relevant order sheet. Thereafter, no further amount was paid in the court. But, the court below while proceeding with the execution process also issued bailable warrants of the surety described as Irfan Bashir, and further ordered for attachment of the salary of the surety i,e, Irfan Bashir. In compliance thereof process for attachment of the salary was issued. It was recorded in the order sheet dated 7th June, 2010, that last one recorded in execution application, that one Mushtaq Ahmed, described as decree holder, filed an undertaking that he has received total amount of the decree dated 26th December, 2005 on behalf of the Company. On basis of this statement the execution application was disposed of.
9. The petitioner feeling aggrieved of the situation meanwhile approached the court below by way of filing an application under section 12(2), C.P.C., thereby raised objection on legality of the decree on the grounds that no notice was ever served on Shaukat Bashir, and Sohan Masih, defendants Nos.3 and 4, in the suit. It was due to the reason that Shaukat Bashir was permanent resident of United Kingdom (UK), and no summon was issued to him on the address at UK. Therefore, without being properly served no decree can be passed against him (deceased). Furthermore, Shaukat Bashir died in United Kingdom on 31st May, 2009 leaving behind no issue, therefore, the decree cannot be executed against a dead person. The petitioner contended that the decree holder only pressurized the brothers of the deceased judgment debtor for payment of the decretal amount, and started blackmailing one of them, the petitioner, who was a Government employee, thereby managed to recover an amount of Rs,150,000 from him (present petitioner). It was contended that as the judgment debtor belonged to the Christian Community, therefore, he (petitioner) was not liable to pay the amount of debt of the deceased being not his legal heir. There was a prayer for setting aside of the judgment, and decree and dismissal of the suit. This application was replied by respondent No,1, being the decree holder, while raising several legal objections on its maintainability, the application was strongly contested on merits also.
10. The District Judge, Quetta vide order dated 30th April, 2010 dismissed the application while arrived to the conclusion that the applicant (present petitioner) was neither judgment debtor, nor an aggrieved person, therefore, not entitled to seek a relief for setting aside of the judgment. It was also held that the application being time barred, and condo nation of delay was not prayed, therefore, not maintainable. The petitioner feeling aggrieved of the order filed the instant petition for redressal of his grievance.
11. The facts as narrated hereinabove disclosed that the decree was obtained by respondent No,1 against two of the defendants i,e, Shaukat Bashir, and. Sohan, and they were held liable to pay an amount of Rs,3,49,772 vide decree dated 26th December, 2005 and 29th November, 2006. It was noted that he appellate court while deciding the appeal mentioned the decretal amount as Rs,4, 39,772 (Rupees four lacs, thirty nine thousand, seven hundred and seventy two only), which is an error, and liable to be rectified. Certain other facts also appeared from the material on the record.
The judgment debtor Shaukat Bashir was alive when the suit was decided by the trial court, but, before filing of the execution application he died. But, this fact was not properly described in the contents of the execution application; rather a vague statement was given. Keeping in view the fact that the execution application was filed in the year, 2009, a notice was required to be issued to the judgment debtors before proceeding with the matter. Further, in present case one of the judgment debtors was dead, and this fact was in knowledge of the decree holder, therefore, the details of legal heirs might have been disclosed, and they were required to be served. But, the perusal of the execution application reveals that neither the details of the legal heirs were provided, nor notices were ever issued to them. Even the second judgment debtor Sohan Masih was not get served. But, fortunately he become aware of the fact as a counsel made appearance on his behalf. But, due to the aforementioned facts there was no representation on behalf of the legal heirs of Shaukat Bashir during course of execution proceedings. Instead of the legal heirs the petitioner remained present before the court below during the proceedings. It was further observed that during course of execution of decree no order was made, nor was any process issued for recovery of the amount against second judgment debtor Sohan Masih. Rather Irfan Bashir (present petitioner) was focused, and all the execution proceedings were held against him. In these circumstances an amount of Rs,150,000 was recovered from the petitioner Irfan Bashir on 13th November, 2009, whereafter, the remaining process of execution was confined only to the extent of issuance of warrant of arrest of Irfan Bashir, and process for attachment of his (petitioner's) salary.
12. The order sheets as recorded in the case file, and the way in which the proceedings were held unable to explain that on what basis the court below, while executing the decree, considered the present petitioner Irfan. Bashir as judgment debtor, and constantly issued processes against him, thereby succeeded to recover thetecretal amount from him. The learned Judge completely failed to observe the procedure provided in Civil Procedure Code, which was required to be adopted during course of execution of a decree by a court. Sections 36 to 74 C.P.C., and Order XXI C.P.C., describe the procedure required to be observed by a court during course of execution of a decree.
But, there was complete failure on part of the court below, which raised question on legality of the whole process.
13. In present case one of the judgment debtors died before satisfaction of the decree. Section 50, C.P.C. Provided a specific mode to deal such like situation. Reproduction of the section will be beneficial:-- "50. Legal representative.---(1) Where a judgment-debtor dies before the decree has been fully satisfied, the holder of the decree may apply to the Court which passed it to execute the same against the legal representative of the deceased.
(2) Where the decree is executed against such legal representative, he shall be liable only to the extent of the property of the deceased which has come to his hands and has not been duly disposed of; and, for the purpose of ascertaining such liability, the court executing the decree may, of its own motion or on the application of the decree-holder, compel such legal representative to produce such accounts as it thinks fit."
14. The intention behind this provision is that the decree obtained may not remain unsatisfied in case of death of a judgment debtor. Rather, it identified the person, and the property against whom the decree may executed. Therefore, the court after determining the status of legal representative may proceed with the matter. In present case too though one of the judgment debtor died before satisfaction of the decree, it might have been executed against his legal representative, and also against the second judgment debtor, who was very much alive. Therefore, to get the decree executed against legal heirs of the deceased, the court dealing with the matter was bound to determine that who will be the legal representative of the deceased judgment debtor within the A meaning of section 50, C.P.C., where after, further proceedings were to be held against the such person. Section 2(11), C.P.C. Defines the term legal representative, reproduction whereof will be beneficial:- "Section 2(11). "Legal representative" means a person who in law represents the estate of a deceased person, and includes any person who intermeddles with the estate of the deceased and where a party sues or is sued in a representative character the person on whom the estate devolves on the death of the party so suing or sued."
15. Section 47, C.P.C. Empowered the court executing the decree to decide certain questions arising between the parties during the course of execution. Subsection (3) of section 47, C.P.C. Is relevant, which reads as under:-- "47(3). Where a question arises as to whether any person is or is not the representative of a party, such question shall. For the purposes of this section, be determined by the Court."
16. In the subsection term representative is used in wider sense, it not only include the term legal representative as defined in section 2(11), C.P.C., but also include any person being representative in interest of a party to a suit. Therefore, the court dealing with the matter left with no other option, but to decide the question to the effect arisen during course of proceedings before proceeding further, but it was not done. It was nowhere decided that the present petitioner was legal representative of the deceased judgment debtor, therefore, liable to pay the decretal amount. But, if a decision was made to the effect, and the petitioner was declared to be legal representative of deceased judgment debtor, section 50(2), C.P.C. Would become operative. But, unfettered powers are not available under the section; rather subsection (2) placed a restriction on execution of a decree against a legal representative. It restricts the execution of a decree only to the extent of the property of a deceased, which has come to the hands of a legal representative, and has not been duly disposed of. Therefore, the decrial amount was to be paid or recovered only from the property of a deceased judgment debtor passed to his legal representative. But, in the present case no such exercise was done by the executing court, neither it was determined who was his legal representative, nor the property, from which decretal amount can be recovered, was ascertained. The court below failed to observe the legal procedure, and also failed to exercise the jurisdiction vest with it, which make all the proceedings held, and orders made were of no legal effect.
17. The court below during the course not only described, but also treated the petitioner as "Surety" being stood for payment of the decretal amount. Section 145, C.P.C. Describes the liability of a surety, which can be enforced, which reads as under: "145. Enforcement of liability of surety. - Where any person has become liable as surety -
(a) for the performance of any decree or any part thereof, or
(b) for the restitution of any property taken. In execution of a decree, Or
(c) for the payment of any money, or for the fulfillment of any condition imposed on any person, under an order of the court in any suit or in any proceedings consequent thereon, the decree or order may be executed against him, to the extent to which he has rendered himself personally liable, in the manner herein provided for the execution of decrees, and such person shall, for the purposes of appeal, be deemed a party within the meaning of section 47: ' Provided that such notice as the Court in each case thinks sufficient has been given to the surety."
18. The learned counsel for the respondent No,1/ decree holder while referring to section 145, C.P.C.
Contended that the present petitioner stood surety for payment of the decretal amount, and the court below while proceeding with the execution rightly issued process and took action against him (petitioner), and there was no illegality committed. The affidavit, whereby the petitioner stood liable as surety for payment of decretal amount, present in the case file of execution application worth to seen, which is hereby reproduced:-- {{URDU TEXT}}
19. The petitioner through this affidavit though agreed to pay the remaining amount in three equal installments, if the judgment debtor failed to pay the decretal amount. But, the contents of this affidavit failed to disclose that for which of the judgment debtors the petitioner stood as surety.
Further, the affidavit was executed on 16-11-2009, when brother of the petitioner, the principle judgment debtor Shaukat Bashir was already dead. This affidavit in itself was defective in nature, and also failed to fulfill the legal requirement, therefore, of no legal effect. Though the contents of the affidavit disclosed payment of a part of the decretal amount amounting to Rs,150,000 on 13-11- 2009, by the judgment debtor. But, in fact no such amount was paid by any of the judgment debtors, rather he (petitioner) himself paid the amount in the court. This affidavit failed to bring the case in hand within the ambit of section 145, C.P.C., therefore, no benefit arriving thereof can be gained by the decree holder in view of the same.
20. From the facts as noted hereinabove the court executing the decree seemed to be only bent upon to recover the decretal amount one way or the other, without even adopting the legal course, which was highly objectionable. Despite having knowledge about death of the first judgment debtor, no efforts were made to bring on record his legal representatives, or even to issue notice to his widow. Further, the details of the property existed in the name of the judgment debtor Shaukat Bashir was available on record, but no process was issued for attachment of the property, nor ordered for its sale to satisfy the decree. In 'addition thereto the decree existed, and operative against the second judgment debtor Sohan Masih, but this fact was ignored, and no process was issued against him, nor any step was taken to his extent for satisfaction of the decree. Furthermore, no decision was arrived thereby, nor the present petitioner was declared to be legal representative of the judgment debtor Shaukat Bashir, and in absence thereof all the proceedings were held against the petitioner. Therefore, without observance of legal procedure, and making decision as required the proceedings held were of no legal effect. Consequent thereof the issuance of bailable warrants against the present petitioner, and order for attachment of his salary were also of no legal effect.
21. From the discussion as made hereinabove it is established that the proceedings held by the court executing the decree were without any justification and also failed to fulfill the legal requirements, therefore, of no legal effect, and not sustainable. Further, it is painfully noted that the counsel representing the judgment debtor, and also the petitioner before the court below though remained in attendance, but acted negligently, and incompetently, thereby failed to raise timely objections during course of the execution of the decree, which was highly unfortunate.
Furthermore, the court below while deciding the application filed under section 12(2), C.P.C.
Concluded that as the petitioner was neither judgment debtor, nor an aggrieved party, therefore, have no locus stand to file the application, and decline the relief. It was an erroneous decision, because the petitioner may have not been the judgment debtor nor party to the suit, but, as the proceedings were held against him during course of execution, and compelled him to make the payment of decrial amount, therefore, he can be covered by the term aggrieved person, and while reading section 146, C.P.C. With section 12(2), C.P.C. He can approach the court for redressed of his grievance.
22. The petitioner through instant. Petition not only questioned order dated 30th April, 2010, and prayed for its setting aside. But, in addition thereto he also prayed for acceptance of his application under section 12(2), C.P.C. The petitioner in mentioned application not only prayed for setting aside of the initial judgment dated 29th November, 2006, whereby the suit filed by respondent No,1 was decreed, with further prayer for dismissal of the suit. But, also prayed for refund of the amount illegally recovered from him. As far as first prayer is concerned, this relief cannot be allowed. For the reason that the deceased judgment debtor was very much alive when the suit was filed, and process was issued by the trial court, and also by the appellate court, as narrated in the judgment of the appellate court. But he never appeared, nor filed appeal against judgment of the trial court. Even the second judgment debtor never appeared, nor filed any appeal, He (Sohan Masih) though represented by a counsel before the court executing the decree, but failed to challenge the decree by way of filing appeal or application under section 12(2), C.P.C.
Furthermore, the petitioner was not claiming himself to be the legal representative of the deceased. Therefore, the initial judgment and decree cannot be set aside on his application, nor can the suit be dismissed. But as far as second relief is concerned, it can bc granted in view of the discussion made in the preceding paras.
23. Therefore, in view of the above discussion the instant petition is hereby partly allowed. The order dated 30th April, 2010 of District Judge, Quetta, is hereby set aside, consequent thereof the execution application filed by respondent No,1/decree holder deemed to be pending before the court executing the decree, who is directed to conduct the proceedings by adopting the procedure provided in Order XXI C.P.C., and also observing the legal requirements as provided under sections 36 to 74, C.P.C. It is further directed that the money received from the petitioner by the decree holder/respondent No,1 during course of execution be returned to the petitioner Irfan Bashir. The court is directed to adopt the entire legal course to get it returned without any delay.
The petition stand disposed of in above terms, with no orders as to costs.