' SADIQ HUSSAIN BHATTI, J.---Through this petition the petitioner calls into question the order dated 10-5-2011 passed by a learned Single Judge of this Court in Execution No, 27 of 2004, whereby the execution application filed by the plaintiff/Decree-holder in Suit No,688 of 1988, bearing No, 27 of 2004, was allowed and directed the State Bank of Pakistan to attach Account No,II (Food) and Account No,I (Non-Food), maintained by the Government of Sindh with State Bank of Pakistan.
2. Brief facts of the case are that on 17-2-1991 one Muhammad Sharif Abbasi, who was travelling on Bus bearing No, 855-844, fell down from the said bus and died due to the negligence of the driver of the bus. Legal heirs of the deceased filed Suit No, 1210 of 1991 for recovery of Rs,35,50,000 under the Fatal Accidents Act, 1855. This suit was decreed vide judgment dated 17-11-2003. The plaintiffs filed Execution Application No, 27 of 2004 for the execution of the decree passed in Suit No, 1210 of 1991 which was allowed vide the impugned Order dated 10-5-2011. It is against the above Order dated 10-5-2011 that the present petition has been filed with the above quoted prayer.
3. This petition came up for hearing on 23-9-2011 when the learned A.A.-G. Appearing for the petitioner was put to notice to satisfy the Court on the maintainability of the petition. Again the petition came up for hearing on 28-8-2012 when the following order was passed by a Division Bench of this Court:- "Mr. Muhammad Sarwar Khan, learned A.A.-G., states that since he was out of station, therefore could not prepare the case. It is urged that legal issues are involved, therefore writ petition has been filed. He was directed to satisfy the Court that once a decision is rendered in suit and maintained in HCA, where factual or legal issue could be raised in writ jurisdiction instead of, taking up the matter before the Hon'ble Supreme Court of Pakistan. He needs time to satisfy the Court as to the maintainability of this petition. At his request as a last chance matter is being adjourned."
4. Mr. Muhammad Sarwar Khan, learned Additional Advocate General Sindh and Mr. Saifullah, Assistant Advocate General Sindh appeared and argued the matter on behalf of the petitioner. It was argued that since Secretary Finance was not a party to the suit filed by the respondents Nos. 1 to 6, therefore, the accounts of the Finance Department cannot be attached under Order XXI, Rule 46, C.P.C. It was contended that the decree could only be executed against a person or persons who were party to the suit. Reliance in this regard was placed on Sh. Shajar Hussain v. Haji Abdul Majeed and others (2006 SCM R 913). The learned counsel further argued that interest is un-Islamic and, therefore, the suit cannot be decreed with interest. Lastly, it was submitted that damages can be granted from the date of the decree and not from the date of filing of the suit as the liability is vicarious. On the point of maintainability of the petition, the learned counsel submitted that since legal questions are involved therefore this petition is maintainable.
5. On the other hand, Messrs Farrukh Usman and Aamir Maqsood, learned counsel for the private respondents argued that the petition is not maintainable as disputed questions of facts are involved. They also contended that the petition is not maintainable for the reason that adequate remedy of approaching the Hon'ble apex Court by filing a petition for leave to appeal was available with the petitioners. They submitted that the petitioner was not precluded from raising any of the above issues before the Hon'ble apex Court. The learned counsel placed reliance on the judgments reported as Happy Family Associates through Chief Executive v. Pakistan International Trading Company (PLD 2006 SC 226) and Mir Zaman v. Mst. Sheda and 58 others (2000 SCM R 1699).
6. We would take up the point of maintainability of the petition first as if the petition itself is not maintainable then no benefit would be served by flogging a dead horse.
7. From the above narrated facts it would be gleaned that one Muhammad Sharif Abbasi died in a road accident involving a bus of Karachi Road Transport Corporation (KRTC) and the legal heirs of said deceased Muhammad filed a suit (bearing No, 1210/1991) for recovery under the Fatal Accidents Act which was decreed in favour of the plaintiffs. The defendants feeling aggrieved by the judgment in the suit filed High Court Appeal. This High Court Appeal was dismissed for non- prosecution. No effort was made to revive the said High Court Appeal as such the judgment and decree passed in the Suit No, 1210 of 1991 attained finality. The plaintiffs filed execution Application No, 57 of 2004 for enforcement of the judgment and decree passed in the said Suit. When the execution application came up for hearing on 10-5-2011 the following order was passed thereon:-- "This is an execution application for the enforcement of decree. High Court Appeal that was preferred against the decree, according to learned counsel for the decree holder, has also been dismissed long time back. There are no objections available on record. Under the circumstances execution application is allowed.
' State Bank of Pakistan is directed to attach Account No,11 (Food) and Account Non.1 (Non-Food), Government of Sindh lying with Director Accounts, Central Director (Accounts), Central Directorate, State Bank of Pakistan, 1.1. Chundrigar Road, Karachi in terms of Order XXI Rule 46, C. P. C. And recover the amount therefrom to the extent of decree dated 17-11-2003. This, amount shall be deposited by State Bank of Pakistan with the Nazir of this Court for the benefit of the decree holder who will be entitled to withdraw the same."
7(sic) Perusal of the above quoted impugned order reveals that the learned single judge passed the above order for the reasons that (i) the High Court Appeal filed against the judgment and decree passed in Suit No, 1210 of 1991 was dismissed long time back and, (ii) there were no objections to the grant of the execution application.
8. The main ground urged by the learned Counsel for the petitioner in respect of maintainability of the petition is that legal questions are involved in the matter. However, he has not cited any case- law on the point that if legal issues are involved the same could only be agitated by filing a writ petition under Article 199 of the Constituting of Islamic Republic of Pakistan, 1973. After the suit of the private respondents was decreed it was open to the aggrieved party to challenge the judgment and decree in the suit by filing a High Court Appeal. Such High Court Appeal was filed but the same was dismissed for non-prosecution and no effort was made to revive the same.
Thereafter, the impugned Order dated 10-5-2011 was passed by a learned Single Judge of this Court allowing the execution application and ordering attachment of the Accounts of Government of Sindh. This order has been challenged by way of this constitutional petition alleging that the attachment of the accounts of Finance Division is against the law as Finance Division was not a party in the proceedings and the same was passed behind the back of the petitioner.
9. In case the grievance of the petitioner was that the judgment and decree was passed behind its back then the remedy available was that of an application under section 12(2), Code of Civil Procedure. It was not proper for the petitioner to leave the statutory remedies made available under the relevant law and to file a Constitutional Petition. In the case of Commissioner of Income Tax and another v. Hamdard Dawakhana (Waal) (PLD 1992 Supreme Court 847), it was held as .Under:--
12. Before parting with the judgment we may observe that in cases where any party resorts to a statutory remedy against an order he cannot abandon or bypass it without any valid and reasonable cause and file Constitution petition challenging the same order. Such practice, in cases where statute provides alternate and efficacious remedy upto High Court, cannot be approved or encouraged. In a recent judgment of this Court in C.A. No,79-K of 1991, one of us (Ajmal Mian; J) in similar situation observed as folloivs: "We may now revert to the question, whether the appellant was justified to file above Constitution petition against the order of the Tribunal instead of invoking section 136 of the Ordinance for making a reference to the High Court. According to Mr. Behan Naqvi, a reference under the above provision would not have been adequate and efficacious remedy as it would have taken years before it could have been heard. The same could be true for a Constitution Petition.
' The tendency to bypass the remedy provided under the relevant statute and to press into service Constitutional jurisdiction of the High Court has developed lately, which is to be discouraged.
However, in certain cases invoking of Constitutional jurisdiction of the High Court instead of availing of remedy provided for under the relevant statute may be justified, for example when the impugned order/action is palpably without jurisdiction and/or mala fide. To force an aggrieved person in such a case to approach the forum provided under the relevant statute may not be just and proper.
' In the present case, the appellant had opted to avail of the hierarchy of forums provided for under the Ordinance upto the stage of filing of appeal before the Tribunal and, therefore, it would have been proper on the part of the appellant to have invoked section 136 of the Ordinance for making a reference to the High Court instead of filing a Constitutional petition. In our view, once a party opts to invoke the remedies, provided for under the relevant statute, he cannot at his sweet will switch over to Constitutional jurisdiction of the High Court in the mid of the proceeding in the absence of any compelling and justifiable reason."
' In the case of Abrar Hassan v. Government of Pakistan and another (PLD 1976 SC 315) the High Court of Sindh and Balochistan, Karachi, while dismissing the constitutional petition against, the Federation and the learned Judge of this Court, held that maintenance of traditional high degree of comity among Judges of superior courts essential for smooth and harmonious working of superior courts writ should not issue from one High Cowl to another High Court or from one Judge to another Judge of same High Court. The reasoning for the same was given thus:-- "Another reason why writs should not issue from.One High Court to another High Court and from one Judge to another Judge of the same High Court 'is that such a course will destroy the traditional high' degree of comity among the Judges of superior Courts which is essential for the smooth and harmonious working of the superior Courts. The provisions of Article 199, spell out that a writ will not issue, from, one' Judge of a High Court to another Judge of the same Court. Article 199(1) confers jurisdiction on High Courts to issue writs to persons performing, within their territorial jurisdiction, functions in' connection with the affairs of the Federation, a Province or a local authority. A High Court cannot therefore issue a writ to a person performing functions in another province. This restriction applied equally in a case of High Courts as the Judges who constitute these Courts perform their functions outside the territorial jurisdiction of each other. The exclusion of High Court from the definition of 'person' is, therefore, not intended to a debar a High Court from issuing writs to other High Courts. This an object is fully served by the primary condition laid down in Article 199(1). What then is the purpose of clause (5) of Article 199. Obviously, not to debar a High Court from issuing a writ to itself. A more rational view is that clause (5) is intended to debar.
Judges of the High Courts from issuing writs to each other. There is a weighty reason in support of this view. If this bar is not there then the judgments delivered by individual groups of Judges of High Courts in different jurisdiction may in the final event, be challenged, by litigants, under Article 199 as without lawful authority on variety of grounds such as error apparent on the face of the judgment, Order or decree, bias mala fides, etc."
10. If the petitioner was aggrieved by any order passed in the suit or the execution application, the same could not be called into question by filing a constitutional petition. The same should have been challenged by filing appropriate proceedings as provided under the law i,e, either a High Court Appeal or an application under section 12(2), C.P.C.
11. In the case of Mumtaz Ahmed and another v. Assistant Commissioner and another (PLD 1990 Supreme Court 1195), a learned Division Bench of the Hon'ble Supreme Court, observing that the petitioner, without resorting to the remedy available to the petitioner, directly approached the High Court through a Constitutional petition, held as under:-- "All these aspects of the matter could have been gone into by the special Tribunal; namely, the Revenue Court/Officer and the higher forums in the hierarchy of the Revenue law. If such exercise would have been done the grounds urged by the landlord for the eviction of the petitioner would also have been examined both on the touchstone of the provisions contained in the other laws relating to the ejectment of tenants from land as also this comparison might further have been influenced by the grounds available for eviction of the tenants in Islam. Such like detailed exercise at lower level and in other forums is necessary for smooth progress and development of not only Islamic jurisprudence but also would resolve the difficult questions of application of Islamic Law as is visualised by the mandate in the Constitution. This aspect relating to proper exercise by the lower forums in a subject like the present one was highlighted in the case of Haji Nizam Khan v.
Additional District Judge, Lyallpur and others PLD 1976 Lahore 930. In this case unfortunately the petitioners instead of following proper remedies and going before the next higher forums where all this exercise, it could be hoped and expected, would have been thoroughly done, hurriedly approached the High Court in its Writ jurisdiction. They were wrongly advised to do so."
12. In an almost identical case reported as Mir Zaman v. Mst. Sheda and others (2000 SCMR 1699), the Hon'ble Apex Court held as under:-- "4. After hearing the learned counsel for the petitioner, we do not find any substance in his arguments and thus, are not inclined to grant leave. In this petition for leave to appeal, the order of the High Court passed in Writ Petition No,619 of 1999 has been assailed whereby the writ petition was held to be not maintainable and was dismissed in limine. Learned High Court has rightly observed that after dismissal of their civil suit, they had the remedies of appeal/revision under the Code of Civil Procedure; which were not availed, thus writ petition being not maintainable was dismissed. The plea that the procedure given in the C. P. C. Was lengthy, therefore, the petitioner deemed it proper to avail Constitutional remedy for early disposal of the matter, has no substance at all, for it is not at the choke and discretion of the party to invoke the Constitutional jurisdiction as an alternate remedy when adequate recourse under the law was available. Writ jurisdiction cannot be resorted to when grievance is rectifiable in appellate hierarchy. Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 begins with the words "subject, to the Constitution, a High Court may, if it is satisfied that no other adequate remedy is provided by law,- -(a) on the application of any aggrieved party, make an order--- ." The opening words of the Article make it clear that Constitutional jurisdiction of the High Court can only be invoked when no other adequate remedy is provided by law. In the instant case, the petitioners along with others had gone to the Civil Court challenging the order of the Collector, dated 21-8-1998, and after dismissal of their suit, he left it half way and instead of availing the right of appeal/revision as provided by the Code of Civil Procedure, the legal remedies available to the petitioner under the law, invoked the extraordinary jurisdiction of the High Court, which rendered his Constitutional petition incompetent and unmaintainable."
13. In the instant case, when the suit filed by the private respondents was decreed, High Court Appeal No, 57 of 2004 was filed to challenge the judgment and decree passed in the suit. In case it was the case of the petitioner that the judgment and decree in the suit was obtained by fraud then the remedy available to it against such judgment and decree was to D assail the same by filing an application under section 12(2), C.P.C. In the suit itself. However, neither the High Court Appeal was vigorously followed nor any application under section 12(2), C.P.C. Was filed by the petitioner.
14. In Execution No,51 of 2002, a similar application was made and the same was dismissed vide order dated 6-4-2004 by observing as under:-- "It is stated in the affidavit filed in support of application that the decree was passed against KTC or Transport Department, Government of Sindh, therefore, the order of attachment of the account of Government of Sindh non-food account is not warranted and, needs to be recalled. As against this, Mr. Nasir Maqsood, learned counsel states that Government of Sindh under section direction of this Court has entered into a Memorandum of Agreement whereby under clause IV (k) agreed "to carry out implement the terms of this agreement and it would be the liability and responsibility of the Government of Sindh. The cases pending in the Court are not relating to the KTC Employees." Such agreement is signed by Additional Secretary, Budget, Finance Department, Government of Sindh, Director Labour, Senior Chief Transport Commissioner, P&D Department, Government of Sindh, Additional Secretary Law and Secretary to Government of Sindh Labour and Transport Department.
' In view of the above agreement, it cannot be said that the liability is with KTC- or any other Functionary. Under the Agreement referred to above, Government of Sindh assumed all the liabilities."
15. The learned counsel for the petitioner contended that the decree can't be executed against Secretary, Finance Division, as he was not a party to the suit. In this he relied on the case of Shaikh Shajar Hussain v. Haji Abdul Majeed and others 2006 SCMR 913 wherein the Hon'ble Apex Court observed as under: "4. After hearing the learned counsel for both sides and taking into consideration the fact that the property was originally owned by the Punjab Textile Mills, therefore, it was incumbent upon the plaintiff/petitioner to have impleaded it as party and in absence of the original owner decree passed shall cause injustice to it and such order would not be executable against a person who was not a party to the proceedings. Therefore, we accept the request of the learned counsel for the petitioner. As a result whereof petition is converted into appeal the impugned judgment dated 1-3-2000 as well as judgments dated 2-2-1998 and 15-7-1996 passed by the trial Court and First Appellate Court are set aside and permission is accorded to the petitioner to withdraw the civil suit and file fresh suit on the same cause of action in accordance with law. Parties to bear their own
16. However, we are afraid that finding of the Hon'ble apex Court in the cited judgment will not lend any support to the contention of the learned counsel for the petitioner as the same is entirely distinguishable on facts. In the cited judgment the suit was filed against defendants while the real owner of the property was not arrayed as a party therein. Accordingly, it was held that the decree passed in the suit cannot be executed against a person who was not a party to the suit. In the present case, the suit was filed against the driver of the bus which was involved in the accident resulting in the death of the deceased Muhammad Shareef Abbasi, Karachi Road Transport Corporation, who owned the bus at the relevant time and Secretary, Transport Department, which assumed the responsibility of the erstwhile KRTC. Subsequently, as evident from the order passed in Execution Application No, 51 of 2002, an agreement was executed inter alia by Additional Secretary, Finance Department through which the Government of Sindh assumed the responsibility of KRTC. Therefore, it is not a case where a necessary or proper party was not impleaded which may result in dismissal of the suit for non-joinder of the necessary or proper party. In fact the suit was properly defended and contested and it was through a well-reasoned judgment that the same was allowed. If subsequently, the KRTC was dissolved by the Government of Sindh, the rights and liabilities of KRTC could not vanish in thin air. These were assumed by the Government of Sindh. Since Finance Department is also a signatory to the Agreement, therefore, it cannot take shelter behind the plea that since it was not a party to the suit, therefore, the decree passed in the suit cannot be executed against it. In fact it is being executed against the Government of Sindh.
17. Thus, the contention that the judgment and decree was passed behind the back of the petitioner has no force and is rejected. Under the above agreement, it is responsibility of the Government of Sindh to satisfy the Decree passed in favour of the respondents' way back on 17-11- 2003 and the decree holders are still running from pillar to post to get the decree satisfied.
18. Writ jurisdiction cannot be invoked to circumvent the limitation nor as a substitute for appellate or revisional jurisdiction which otherwise culminate in High Court or Supreme Court. See Khalid Mehmood v. Collector of Customs, Customs House, Lahore (1999 SCMR 1881).
19. In view of the above discussion, neither this petition is maintainable for the reason that the remedy provided under the law has not been exhausted nor the contention of the learned counsel for the petitioner that since the petitioner was not a party to the suit, therefore, the decree passed therein cannot be executed against it, has any force.
20. After hearing the learned counsel for the parties, we dismissed this petition vide our Short Order dated 15-1-2013 'with cost throughout'. Above are the reasons for the same.