' SHAHID BILAL HASSAN, J.---Through this writ petition, the order dated 20-2-2014 passed by learned Addl. District Judge, Gojra, whereby civil revision preferred against order dated 23-1-2014 passed by learned Civil Judge, Gojra, dismissing the application for withdrawal of surety of the respondent No,1, submitted for respondent No,2, has been allowed and order dated 23-1-2014 has been set aside by discharging the respondent No, 1 from his liability.
2. Learned counsel for the petitioner has argued that petitioner instituted a suit for recovery of Rs,244,818 against the respondent No,2, which was contested by him and same was ultimately decreed in favour of the petitioner vide judgment and decree dated 1-6-10-2008, which was assailed through appeal, but same was dismissed vide judgment and decreed dated 9-6-2009.
Thereafter, the petitioner/decree holder filed execution petition for execution of decree dated 16- 10-2008. During proceedings, the respondent No, 1, on 8-3-2003, appeared before the appellate Court and stood surety of respondent No,2 against decretal amount and submitted his surety bond and also got recorded his statement. On dismissal of appeal, the learned executing Court issued notice to the respondent No,1 for making payment of decretal amount as respondent No,2/ judgment debtor refused to satisfy the decree, but he denied and filed an application for withdrawal of his surety bond; said application was contested by the petitioner/decree holder, which was dismissed vide order dated 23-1-2014; against which a revision petition was preferred which was ultimately allowed vide impugned order dated 27-2-2014; hence, this writ petition.
2A. Learned counsel for the petitioner has argued that impugned order is against law and facts of the case, rather same is not sustainable in the eye of law because same is based on surmises and conjectures; that while passing the impugned order the learned revisional court has failed to apply its judicious mind and has passed the same in fanciful manner; that revision was not maintainable, as the order dated 23-1-2014 was appealable under section .104 read with Order XLIII of Code of Civil Procedure, 1908; that the statement of the respondent No,1 has not been taken into account while passing the impugned order, hence, same is result of misreading and non-reading of record as well as statement of surety, recorded on oath, dated 8-3-2013; hence, the impugned order is not sustainable in the eye of law and liable to be set aside; resultantly, while allowing this writ petition, the impugned order may be set aside and that of learned executing court may be restored. Relies on Amanullah Khan v. District Judge and 3 others 2012 CLC 679 Lahore, Mrs., Muhammad Shafi through Agent v. Sultan Ahmed 2000 CLC 85 Lahore, Karim Bhai v. Hatimbhai PLD 1994 Karachi 311, Zafar Ullah and another v. Addl. District Judge, Nankana Sahib and 2 others 1993 CLC 255 Lahore, Cantonment Board, Rawalpindi v. Muhammad Sharif through . Legal Heirs PLD 1995 Supreme Court 472, Happy Family Associate through Chief Executive v. Messrs Pakistan International Trading Company PLD 2006 Supreme Court 226, Mst. Maqbool Begum etc. v. Gullan and others PLD 1982 Supreme Court 46, Mst. Murad Begum etc. v. Muhammad Rafiq and others PLD 1974 Supreme Court 322 and Messrs Pakistan State Oil Limited v. Messrs Pakistan Burmah Shell Limited and another 1993 CLC 57-Karachi.
3. On the contrary, learned counsel for the respondent No,1 has contested the instant writ petition with vehemence by contending that the writ petition is not maintainable against an order passed while exercising revisional jurisdiction, even otherwise, the impugned order is well reasoned. Adds that the respondent No,1/ surety has discharged his liability by producing the judgment debtor before the learned Executing Court and hence, the learned revisional Court has rightly accepted the application for withdrawal of his surety bond and has rightly discharged him from his liability.
Prayer for dismissal of instant writ petition has been made.
4. Heard.
5. It is an admitted proposition of law that in writ jurisdiction only the question as to whether the learned lower courts have rightly exercised, the jurisdiction or not, has to be considered and when the orders impugned are well reasoned, same cannot be interfered in writ jurisdiction, but when it divulges that misreading and not reading of record has been committed and order impugned has been passed in haste and arbitrary manner, without applying judicious mind, same can be interfered and revised. Perusal of the statement of respondent No,1/surety recorded on oath on S- 3-2013, duly thumb marked by him, reveals that he stood surety for payment of the decretal amount instead of appearance of the judgment debtor. For ready reference, the statement of surety/ respondent No,1 is reproduced in verbatim:-- {{URDU TEXT}} When the position is as such, the respondent No,1/surety cannot claim to have discharged his liability and he cannot be absolved of his liability on account of arrest of the respondent No,2/judgment debtor. In this regard reliance is placed on Amanullah Khan's case 2012 CLC 679 Lahore, wherein it has been observed that, 'Petitioner's contention was that as he himself was not judgment debtor and, was merely a surety of judgment debtor, on arrest of judgment debtor, no further action would be taken against him, when he had performed his duty by producing the judgment debtor before the Court-Contention of the petitioner was misconceived as petitioner did not stand surety for appearance of judgment debtor, but he stood surety for the payment of decretal amount---Petitioner, could not be absolved of his liability on account of arrest of judgment debtor................"
6. In view of above discussion, the impugned order dated 20-2-2014 is not sustainable in the eye of law as same has been passed without application of judicial mind and considering the latest development on the subject in question. Resultantly, by placing reliance on the supra judgment as well as Mrs. Muhammad Shafi through Agent v. Sultan Ahmed 2000 CLC 85 Lahore, Karim Bhai v.
Hatimbhai PLD 1994 Karachi 311, Zafar Ullah and another v. Addl. District Judge, Nankana Sahib and 2 others 1993 CLC 255 Lahore, the instant writ petition is allowed, the impugned order dated 20-2- 2014 passed by learned Addl. District Judge, Gojra is hereby set aside and reversed and that of learned executing court dated 23-1-2014 is resorted.