C.M. No. 497-B of 2015 SHAMS MEHMOOD MIRZA, J.---This application has been filed by judgment debtor No.2 under section 47 of the Code of Civil Procedure, 1908 (the CPC) challenging the auction in respect of plots Nos.108-A and 108-B, Grain Market, Scheme Badami Bagh, Lahore comprising of a commercial building.
2. It was stated that the applicant/judgment debtor No.2 along with judgment debtor No.3 mortgaged the properties in question with the decree holder bank to secure a sum of Rs.900,000/- under a Cash Finance (CF) facility granted to the judgment debtor No. I. It was further stated that judgment debtors Nos.2 and 3 were only sued in their capacity as mortgagers of the property in question and no guarantee was attributed to them in the suit. It was, therefore, prayed that auction sale held on 29.05.2015 in respect of the properties in question be declared as void and the same be redeemed/released as the said amount already stands paid to the decree holder bank.
3. The decree holder bank has contested this application by filing its reply wherein the stance of judgment debtor No.2 has been controverted. It was stated that the decree was passed jointly and severally against the judgment debtors; that earlier another application bea4ng C.M. No.248-B of 2011 on the same subject matter was dismissed for non-prosecution on 15.04.2015 and without getting it restored, the present application cannot be filed; that the stance of the applicant/judgment debtor No.2 is not borne out from the contents of the mortgage deed.
4. The arguments of learned counsel for the parties have been heard and the record has been perused.
5. It is an admitted fact that the applicant/judgment debtor No.2 contested the suit by filing his application for leave to defend along with other judgment debtors, in which suit the properties in question were shown to be the security for all the finance facilities. Amongst others, the decree holder bank had relied upon a mortgage deed dated 31.07.1994 executed by judgment debtors Nos .2 and 3, clause 9 whereof reads as under: ' This Mortgage shall be continuing security and shall not be considered as either wholly or partially satisfied or redeemed by any payment made by the Mortgagor or the customer and shall be a security for any amount ultimately due to the Mortgagee Bank from the Mortgagor or the customer. (emphasis supplied)
' Similarly, Clause 14 of the said Mortgage deed is equally relevant and reads as under ' That the mortgagors have mortgaged the property as guarantors of the borrowers/customer viz. M/s. Murtaza Haseeb Textile Ltd. 51, Fazil Road, C.M.A. Colony, Lahore Cantt.
' The application for leave to defend filed by judgment debtor No.2 further shows that no such ground was taken therein with regard to the property in question. The application for leave to defend filed by the judgment debtors was dismissed and consequently the judgment and decree was passed on the following terms: ' Accordingly applications for leave to defend filed on behalf of defendants Nos.1 to 14 are dismissed. The suit of the plaintiff bank is decreed jointly and severally against the defendants for the amount of Rs.52.560 Million along with costs of funds from the date of promulgation of the Ordinance XLVI of 2001 on 31.08.2001 till the payment of realization of the decretal amount.
(emphasis supplied)
6. It is also an admitted fact the judgment debtors did not file any appeal against the judgment and decree which has since attained finality. The expression 'joint and several' means that each of the judgment debtor is singly and jointly liable for payment of decretal debt. Judgment debtor No.2 had earlier filed C.M. No.248-B of 2011 wherein it was stated that the amount due under the CF facility was Rs.6,112,701.48, which he was willing to pay for release of the properties in question.
Accordingly the following prayer was made in the said application.
' It is, therefore, respectfully prayed that the property of the applicant bearing Nos.108-A and 108-B, situated in Grain Market Badami Bagh, Lahore, be released to the applicant on payment of the aforesaid amount.
' Civil Miscellaneous No.248-B of 2011 was dismissed for non-prosecution on 15.04.2015. Instead of seeking restoration of the said application, judgment debtor No.2 has filed the present application.
It is apparent that both C.M. No.248-B of 2011 and the present application are founded on a similar subject matter and, therefore, the only option available to judgment debtor No.2 was to seek restoration of C.M. No.248-B of 2011 instead of filing the present application.
7. It was argued with some vehemence on the part of the learned counsel for judgment debtor No.2 that the application is one under section 47, C.P.C. and, therefore, the Court can adjudicate upon the issue raised in the application even though it was not raised in the application for leave to defend. He also pleaded that since the Court did not look at the fact that the liability of the mortgagors was restricted to Rs.900,000/- and passed the decree in ignorance of the record, therefore, it was a decree passed without jurisdiction. In view of the submissions made by the learned counsel for judgment debtor No.2, it becomes imperative to explore the scope of section 47, C.P.C. There can be no cavil to the well-established and unexceptionable principle of law that a court. executing a decree cannot go behind the decree and is required to execute the decree as it is and that the court has no jurisdiction under the provisions of C.P.C. to widen its scope or to entertain any objection that the decree was erroneous on facts and law. Unless the decree is set aside in appellate or revisional proceedings, it continues to bind the parties even if it is erroneous.
Section 47, C.P.C. empowers the court executing the decree to decide all the questions, arising between the parties to the suit in which the decree is passed when such question relates to the execution, discharge or satisfaction of the decree. The phraseology used in section 47, C.P.C. makes it clear that the said provision only deals with events subsequent to issuance of the decree. It does not relate to a cause arising prior to issuance of the decree. It is, therefore, often said that section 47, C.P.C. does not deal with pre-decreetal matters. The question to be dealt with by the Executing Court, therefore, should necessarily be relating to the execution of the decree, albeit a lawful and executable decree and not the one which is a nullity.
8. Section 47, C.P.C. is the only provision in the entire Code that deals with the jurisdiction of an executing court. It is restricted in its scope in determining all questions arising between the parties to the suit which relate to the execution, discharge or satisfaction of the decree and it commands that all such questions shall be determined by the executing court and not by a separate suit. Any question that does not concerns the execution, discharge or satisfaction of the decree does not come within the confines of the jurisdiction of the executing court. The power to decide about the executability of the decree, however, cannot and does not include the power to bring about changes in the rights and obligations of the parties that have already been determined by the decree. While dealing with the questions raised by a party relating to the executability of the decree, the executing court cannot re-adjudicate upon the rights of the parties. The survey of the judgments from our jurisdiction and Indian jurisdiction shows that the validity of a decree can only be challenged in execution proceedings on the ground that the court which passed the decree lacked inherent jurisdiction. A court is said to be lacking in jurisdiction when the decree passed by it was without jurisdiction over the subject-matter or over the parties or on any other ground which goes to the root of its exercise of jurisdiction or inherent jurisdiction. The reason why the jurisdiction vests in the executing court to refuse to execute a decree is that the defect of jurisdiction strikes at the authority of the court to pass a decree which cannot be cured by consent or waiver of the party. If the court has jurisdiction but there is any defect in its exercise of jurisdiction it does not go to the root of its authority. It is axiomatic that objections to the validity of a decree of a court which had no inherent jurisdiction to pass the same can only be raised in the execution proceedings when the error of jurisdiction is apparent on the face of the record. However, if the error of jurisdiction requires further examination of the issues raised and determined at the trial or issues which could have been raised but were not, the executing court will have no jurisdiction to entertain such an objection to the validity of the decree even on the ground of absence of jurisdiction.
9. The above principles have been reiterated in Habib Bank Limited v. Mst. Parveen Qasim Jan and others 2014 SCM R 322, where the Hon'ble Supreme Court, after reviewing various judgments on the subject, came to the following conclusion.
' From a perusal of the above judgments, it becomes clear that in the proceedings of the execution of the decree, the executing Court while exercising jurisdiction under section 47, C.P.C. can question the executability of a decree if it is satisfied that the decree is a nullity in the eyes of law or it has been passed by a Court having no jurisdiction or the non-execution of the decree would not infringe the legal rights of the decree-holder or the decree has been passed in violation of any provision of law, only then the executing court can refuse to execute the decree.
10. The scheme of the Civil Procedure Code is such that in the suit the court adjudicates upon the rights and liabilities of the parties and incorporates them in the decree and subsequently at the instance of the party successful in the suit it enforces the liability of the other party through execution of the decree in execution proceedings. The determination of liability of a party in the suit is the condition precedent for enforcement of that liability in execution proceedings. This two tier process for determination of rights and liabilities (in suit) and the enforcement of liability (in execution) has eloquently been described in a judgment reported as Modern Knitting and Woollen Spinners (Pvt.) Limited and another v. Manzur Ahmed Sheikh and 3 others 2007 CLD 1071 wherein it was also held that any plea not raised in the application for leave to defend or if raised but rejected would not form basis for objecting to the executability of the decree under section 47, C.P.C. It was thus held that: ' At this juncture, we feel expedient to dilate and explain that there are two stages in a litigation. The first, where all points of controversy, may be legal or factual, inter se the parties pass through the process and phase of judicial determination. It is this stage where the plaintiff of the case mandatorily has to raise all the necessary pleas in order to succeed in the matter. And the defendant is obliged to do the same in defence for defeating the cause of the plaintiff. In the cases pertaining to Order XXXVII, C.P.C. and those under the Special Banking Laws, this stage includes the adjudication of the pleas raised in the leave application of the defence. This can be defined as the "determination stage for resolving the dispute between the parties", which goes up to the forum of appeal etc. Therefore, if the requisite pleas are not raised here, the stage for the determination of the controversy between the parties is passed. The second stage is confined only to the execution of the decree, which means the enforcement of the decree by the process of the Court, so as to enable the decree-holder or the judgment-creditor to recover the fruits of the judgments. At this stage, not only the power of the Executing Court are subservient to the judgment of the Court, which has determined the dispute between the parties and pronounced its verdict, but the parties are also precluded to raise any controversy, which they failed to propound at the determination stage, or if raised, had failed to succeed in this behalf. Besides, it is settled law that the Executing Court cannot go behind the decree; and undoubtedly, it cannot question the legality or the correctness of the decree; grant the relief to a party, which is not granted in the judgment and decree and above all to adjudicate upon a controversy, which has already been settled by the Court at the determination stage or in the hierarchy thereto.
11. From the ratio of aforementioned judgments, it is clear that recourse to section 47, C.P.C. does not entitle a party to seek retrial of the issues involved in the suit more so when the party had the opportunity to defend the suit and had indeed contested the suit but did not raise the issues mentioned in the application under section 47, C.P.C. The application for leave to defend filed by the judgment debtors, as stated earlier, did not contain any allegation of the nature now being raised by the applicant In view of the judgment and decree passed by this Court, which has since attained finality, the judgment debtors are precluded from raising any issue regarding the securities underlying the finance facilities on the principal of res judicata and F constructive res judicata. Reference in this regard may be made to a judgment reported as Messrs Masoom Industries v. Habib Bank Limited 2003 CLD 386 wherein it was held that orders for dismissal of an objection petition for non-prosecution and dismissal of its restoration application for want of further challenge shall attain finality between the parties on the principle of res judicata. Similarly, in Messrs New Rahat Engineering Works v. National Bank of Pakistan 2003 CLD 382, a judgment delivered by a learned Division bench of this Court broke new ground by holding that the principles of constructive res judicata are also applicable to miscellaneous applications. It is thus clear that upon dismissal of C.M. No.248-B of 2011 on 15.04.2015 for non-prosecution, which order was not further challenged, judgment debtor No.2 was precluded from filing the present application on the principles of res judicata and constructive res judicata.
12. Even otherwise, clause 9 of the mortgage deed quite clearly stipulated that the properties in question shall be a continuing security for all the amounts due from the customer. Having executed the said instrument, judgment debtor No.2 could not turn around to challenge his liability which has since culminated into a lawful and valid decree, which his since attained finality for want of further challenge in appeal.
13. In the result, this application being devoid of any merit is dismissed.
14. Now to corn up for further proceedings on 22.12.2015.