' IBAD-UR-REHMAN LODHI, J.---The suit for recovery, filed by respondent No,2, was decreed by a learned Civil Judge, Sahiwal, to the extent of recovery of Rs,64,48,279 (rupees sixty four lac, forty eight thousand, two hundred and seventy nine only) along with 5% annual mark-up till payment of the suit amount with costs.
2. The petitioners herein being dissatisfied with the said decree challenged the same before this Court by means of R.F.A. No,24 of 2010, which came up for hearing before a learned. Division Bench of this Court on 21-6-2011, when the appeal was dismissed and the decree, as was passed by the learned trial Judge, was upheld.
3. Still feeling disgruntled, the petitioners filed Civil Petition for eave to appeal having No,1228-L of 2011, which came up for hearing before the Hon'ble Supreme Court of Pakistan on 20-3-2013, when the same was disposed of in the following manner:-- "The learned counsel for the respondent has prciuced before us an interim order passed by the learned executing court manifesting that the petitioners have already agreed to pay the due amount to the respondent which shows that they are no longer contesting the decree passed against them. The learned counsel for the petitioners has not been able to controvert this factual aspect of the matter as, according to him, he has not been instructed by the petitioners in that regard. From the above mentioned interim order passed by the learned executing court it appears that a substantial portion of the decretal amount has, already been paid by the petitioners to the respondent which shows that the petitioners are no longer interested in challenging the decree passed against them. In these circumstances the present petition has not appeared to us to be posing any live issue and, thus, the same is disposed of on that score. It goes without saying that if the petitioners wish to raise any relevant objection before the learned executing court in respect of execution of the relevant decree then they may have recourse in that regard before the learned executing court if so advised".
4. The decree-holder filed an execution application under the provisions of Order XXI Rule 10 of C.P.C. Before the executing court, where the judgment-debtor has filed an objection petition by maintaining that on the event of deposit of defence savings certificates by the judgment-debtor valuing Rs:64,00,000 (rupees sixty four lac only), the decree to the extent of payment of 5% mark- up stood ceased and the judgment-debtor was never specifically directed to make any payment in that regard.
5. The learned executing court took up such objection petition on 17-3-2012 and after taking into consideration the conduct of the judgment-debtor with regard to the remaining amount, disposed of the objection petition with a direction to the judgment-debtor to pay the remaining decretal amount.
6. The disposal of the objection petition before the learned executing court has been challenged before this Court by way of this Constitutional petition.
7. The learned counsel for the petitioners has argued that on payment of the amount of Rs,64,00,000 (rupees sixty four lac only) in shape of defence savings certificates, when they were not further asked to pay any additional amount of mark-up or costs, the judgment-debtor stood absolved from any further payment towards satisfaction of the decretal amount.
8. Responding to such contentions, the learned counsel for the decree-holder, respondent No,2 herein, has argued that from the trial court up to the Hon'ble Supreme Court of Pakistan, the decree stood maintained, rather it was never modified and it has to be executed in totality.
9. I have considered the respective arguments of both the sides and perused the record.
10. The objection petition was filed and disposed of within the meaning of section 47 of C.P.C., which empowers the executing court to determine all the questions arising between the parties to the suit in which the decree was passed and also the questions relating to the execution, discharge or satisfaction of the decree and no separate suit in this regard is permissible. Even before the promulgation of the Law Reforms Ordinance, 1972, in view of section 2(2) of C.P.C., the order passed under section 47 of C.P.C. Had always considered to be a decree and, thus, was appealable and this view has been confirmed by a Division Bench of Quetta High Court. In Messrs Saadullah Khan and Brothers and another v. The Province of West Pakistan and another (PLD 1971 Quetta 101), and after promulgation of the Law Reforms Ordinance, 1972, any order passed by the executing court under section 47 of C.P.C., would still be considered as an appealable order within the meaning of provisions of section 104(1)(ff) of C.P.C. In aforesaid findings, I am fortified by the judgments rendered in Muhammad Ismail v. Raja Muhammad Younis (2003 CLC 1252) and. Muhammad Afzal and 4 others v. Bashir Ahmed and 4 others (2007 YLR 2821).
11. This Court has proceeded further in case of Muhammad. Akbar and others v. Riaz' Hussain and others (1995 MLD 1943) by holding that, where order passed by the executing court is not appealable, a revision may be competent.
12. At any cost, the order passed by the executing court exercising B powers under section 47 of C.P.C. Is not open to be impeached in the Constitutional Jurisdiction of this Court as envisaged under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973. The petitioners have not challeinged the verdict of the executing court arrived at by the latter while exercising powers under section 47 of C.P.C. By means of any appeal or at the most a revision. The remedies available under the law have not been availed and in view of the settled position that in presence of any alternate remedy available under the law, the Constitutional petition is not maintainable.
13. Even on merits, the decree as was granted by the learned trial court on 10-11-2009 was neither upset nor modified in appeal before this Court and in petition before the Hon'ble Supreme Court.
The same has to be executed in its entirety. The unsatisfied portion of the decree has to be satisfied by the judgment-debtor and there must be no escape with the petitioners to avoid their such established liability.
14. In view of the above peroration, I see no force in this writ petition, which otherwise is not a competent remedy under the law and, thus, the same is dismissed.