MUHAMMAD FARRUKH IRFAN KHAN, J.---Through the instant EFA the appellant has assailed the orders dated 28-5-2012 and 22-6-2012 whereby the learned Additional District Judge, Kasur dismissing his objection petition has ordered for auction of the attached property in execution proceedings.
2. Brief facts of the case are that respondent No.2/Muhammad Ashraf filed a suit under Order XXXVII, Rules 1 and 2 of the C.P.C. for recovery of Rs.10,00,000 against the petitioner. The suit was decreed in terms of compromise on 21-2-2011. Thereafter execution petition was filed by respondent No.2. The petitioner contested the execution petition by filing objection petition contending therein that he has paid the entire decretal amount to the decree holder out of Court and this fact finds mentioned in the document executed on 3-5-2011. Respondent No.2 denied receiving the decretal amount and prayed for sending the document dated 3-5-2011 for opinion of handwriting expert, which was submitted in the Court. However, the learned Executing Court dismissed the objection petition, on the ground that the same was not maintainable as the judgment-debtor had not complied with the provision of Order XXI, Rule 2(2) of the C.P.C. Hence, the instant Execution First Appeal.
3. Learned counsel for the appellant contended that the impugned orders are against law and facts and on the face of record display non-application of judicial mind. He further contended that the learned trial Court has committed a glaring mistake while interpreting and applying the provisions of Order XXI, Rule 2(2) of the C.P.C. He added that the decree stood satisfied out of the Court and this fact was acknowledged by the parties through a written document, which was produced before the Executing Court. He argued that the provisions of Order XXI, Rule 2(2), C.P.C. are not mandatory but directory in nature as no consequences follow in case of failure to comply with the same. Relies on the case of Muhammad Tariq v. Mst. Fareelat alias Fareelat Bibi (PLD 1997 Lahore 728). He next argued that the objection petition of the appellant has been dismissed merely on technical ground and such a tendency has consistently been deprecated by the superior courts of the country. He added that as the decree-holder had received the decretal amount from the appellant and the decree stood satisfied he had no right to seek execution of a decree from the court. He further argued that the objection petition should have been decided after framing of issues and recording of evidence as the report of the. Handwriting expert has also come on the record, which was obtained on the request of respondent No.2. He lastly contended that the objection petition could be considered as an application for issuance of certificate of adjustment of the decretal amount and there was no need to file a separate application.
4. Conversely, the learned counsel for respondent No.2 contended that as per Order XXI, Rule 2(2) of the C.P.C. the appellant was required to inform the court about the satisfaction of the decree out of the court within 90 days from the date of adjustment/payment of the decretal amount. He has placed reliance on the case of Rasib Khan and 2 others v. Abdul Ghani and 3 others (PLD 1995 SC (AJ&K) 83). He further contended that as payment of the decretal amount out of the court and execution of the disputed document has been denied by the respondent, the learned trial Court has rightly dismissed the objection petition of the appellant.
5. Arguments heard. Record perused.
6. A bare perusal of the provision of Order XXI, Rule 2(2) of the C.P.C. shows that it is not a mandatory requirement of law to inform the court about settlement/adjustment of the decretal amount out of the court by the judgment-debtor. It is just a procedural requirement to protect the interest of the decree-holder and non-fulfilment of the same does not entail any penal consequences. For all intents and purposes this provision is directory in nature. The learned counsel for the appellant has rightly placed reliance on the case of Muhammad Tariq v. Mst. Fazeelat alias Fareelat Bibi (supra) wherein it has been held that the provision of Order XXI, Rule 2, C.P.C. is directory rather than mandatory as no consequences were to follow in case of failure. It has further been held that the court should keep in view the substantive rights of parties and not to go by mere technicalities of procedure. In the present case, the objection petition of the appellant has been dismissed merely on technical ground that he had failed to inform the court about adjustment of the decretal amount out of the court within 90 days of such adjustment. The learned Executing Court framed the issues but did not provide opportunity to the parties to adduce their respective evidence. The appellant has claimed payment of the decretal amount and execution of deed of payment dated 3-5-2011 out of the court. On the other hand, respondent No.2 in reply to the objection petition has denied payment of the decretal amount and execution of the payment deed dated 3-5-2011. However, on the asking of the decree-holder the said payment deed was sent to the Handwriting Expert, whose report has been placed on the record. In view of denial of receipt of decretal amount out of the court by the decree holder the learned Executing Court should have recorded evidence of both the parties and then decided the matter in accordance with law so that substantial justice is done between the parties. In the instant case the Executing Court has failed to adjudicate upon the matter in accordance with law and has non-suited the appellant purely on technical ground, which has resulted in miscarriage of justice.
7. In view of above discussion, I am of the considered opinion that in view of divergent pleas being raised by the parties, the learned Executing Court should record evidence of both the parties to ascertain the truth and then decide the matter on merits. The execution petition shall be deemed to be pending before the learned Executing Court, who shall decide the same afresh after recording of evidence of both the parties, within a period of two months from the date of receipt of copy of this judgment. Resultantly, the impugned orders are set aside and the instant EFA is