' MUSARRAT HILALI, J.---Impugned herein is the order dated 31-7-2013 of learned Civil Judge-cum- Judicial Magistrate-I, Takhtbhai, whereby the relief given to the appellant/judgment-debtor for depositing the decretal amount in instalments has been recalled.
2. Brief facts of the case as per record are that respondent/Decree-holder filed a suit for specific performance before the learned Civil Judge-I, Takht Bahi which was decreed in favour of respondent on the basis of compromise. The Decree-holder thereafter filed execution petition, which was entrusted to learned Civil Judge, Takhtbahi for recovery of decretal amount. During the execution proceedings, the appellant filed an application for payment of the decretal amount in instalments, which was allowed on 7-6-2013 and the appellant was granted permission for payment of decretal amount in instalments at the rate of Rs,20,000 per month. During the course of execution, the appellant failed to appear before the Court on 31-7-2013, however, an application for exemption was submitted before the Court on the said date which was turned down by the learned Judge with the order of recalling the extended relief of payment in instalments.
3. Being dissatisfied with the order dated 31-7-2013 passed by the learned executing Court, the Judgment-debtor appellant has preferred the instant first appeal.
4. Learned counsel for appellant contended that the appellant is fully conscious of his responsibility of payment to the Decree-holder and till date has paid Rs,2,20,000 which fully demonstrate his commitment towards payment of decretal amount to Decree-holder that the absence of appellant on the date fixed was neither wilful nor intentional but because the appellant being a Driver was on his duty at Karachi, who could not make to reach to the Court on the date fixed, however, his counsel appeared in the Court on his behalf; that no reason has been given by the learned executing Court and have made the order haphazardly without reasons. Learned counsel prayed that while reversing the order dated 7-6-2013 the appellant be allowed to make the payment of the remaining amount as per order dated 7-6-2013.
5. Conversely learned counsel for Decree-holder/respondent contended that the concession given to the appellant by the learned executing Court was without any consent of the respondent/Decree-holder; that the appellant has intentionally disappeared on the said date and defaulted in payment of instalments since July, 2013, therefore, the learned executing Court has rightly re-called the order dated 7-6-2013, which may be maintained.
' Arguments heard and record perused.
6. The case of the appellant is that a suit for specific performance was instituted against him which was decreed in favour of respondent on the basis of compromise. The learned executing Court conferred concession upon the appellant by allowing him to pay the decretal amount in instalments, though the respondent was not happy with the mode of execution of the decree but has not assailed the same before the higher forum.
7. The matter before this Court is that the appellant made default in payment of instalments, resultantly, the concession of payment in instalments granted by the learned executing Court was re-called, warrants of arrest were issued against the appellant and the sureties of the Judgment debtor (appellant herein) were also summoned. While going through the decree dated 20-6-2012, passed on the basis of compromise and the order dated 7-6-2013, it is observed that both the above mentioned orders do not provide for any penalty in case of default. In order to secure regular payment, penal clause or conditions should have been incorporated in the order made on 7-6-2013 such as in case of failure to pay one or more instalments, the whole amount of the decree would become payable at once. The Courts are bound in the event of such failure to execute decrees in accordance with its terms. Though the Executing Court has the powers to withdraw its orders but such powers must be exercised judicially and not arbitrarily.
' For what has been discussed above, this appeal is allowed and the impugned order of learned executing Court is set aside however, the executing court shall reschedule the order dated 7-6- 2013 in the light of the directions made hereinabove.