1. ' MUHAMMAD NOOR MESKANZAI, C.J.---This petition calls in question the validity and propriety of order dated 26-02-2014 passed by Civil Judge-I, Quetta whereby the learned executing Court rejected the objection petition filed by the petitioner.
2. Learned counsel for the petitioner contended that initially a civil suit bearing No, 252/2007 was filed against respondents Nos.1 and 2 by the CEO of Naveed Telecom (Pvt.) Ltd. And similarly.
2. Another Suit No,253/2007 was filed by the respondent No,1 against respondent No,2, both the suits were consolidated and finally decided vide order dated 20.09.2011. The civil Suit No, 252/2007 was dismissed whereas Civil Suit No, 253/2007 was decreed to the extent of Rs,1900,000/-. The respondent No,2 feeling aggrieved of the judgment and decree dated 20.09.2011 filed R.F.A.
3. No,176/2000 which was decided vide judgment dated 25.6.2012 and the appeal filed by respondent No,2 was dismissed. The respondent No, l/deeree holder filed an execution application and on the pretext of new address of Naeem Aftab, Chief Executive, the address of the petitioner was mentioned. In the meanwhile, an application was moved before the executing court for attachment of salary of petitioner on the ground that petitioner No,1 is the judgment debtor and order to this effect was issued by the executing court. The order was implemented and the petitioner came to know that a case is pending against him, so he appeared before the executing court and filed an application under section 151, C.P.C. The main contention in the application was that the petitioner was neither a party in the suit nor has got any involvement in the subject matter, therefore, the attachment of salary of petitioner is illegal. The attachment was withdrawn by the executing court vide order dated 4.10.2013. Thereafter, the petitioner filed an objection petition by submitting that petitioner is Naveed Ahmed son of Aftab Ahmed and he has been dragged at this stage in this case due to ,personal grudge. It was further maintained that the petitioner is a government servant since 1992 and has got nothing to do with the Company nor any connection therewith and actually Naeem Aftab brother of petitioner is the judgment debtor and not Naveed Ahmed. The decree holder should have procured the attendance of the judgment debtor. To prove his identity he produced his testimonial, service Card and CNIC (all the documents find mentioned the name of petitioner Naveed Ahmed). According to learned counsel for the petitioner, the parties are known to each other as actually Chief Executive of the Naveed Telecom (Pvt.) Ltd. (company) is Naeem Aftab who is brother of petitioner and petitioner is ex-brother-in-law of the respondent No, 1 . However, unfortunately due to family dispute the matrimonial relationship came to an end and the petitioner pronounced 'Talaq'. Learned counsel stated that in fact the petitioner has been dragged not because he is judgment debtor or guarantor, surety or he ever remained party in the proceedings but because of the `Talaq' pronounced by the petitioner and the respondent No,1 is bent upon to avenge that revenge. He referred to various documents i,e, the plaint, statement of plaintiff recorded before the Court, divorce deed etc. ' The learned counsel for the respondent No,1 supported the impugned order and stated that title of the plaint leaves no room for doubt that the petitioner is Naveed Aftab who was the Chief Executive of Naveed Telecom (Pvt.) Ltd. Though one Naeem Aftab used to appear but in fact CEO is the petitioner who subsequently has changed his name as Naveed Ahmed. He stated that objection petition was filed just to nullify the impact of decree passed by the trial Court and upheld by this Court and now decree so passed should be implemented and no exception could be taken to the impugned order passed by the executing Court.
3. I have heard learned counsel for the parties and gone through the record carefully with their valuable assistance. A meaningful perusal of the record reveals that neither the contents of the judgment are disputed nor terms of the decree are controversial and the dispute amongst the parties is the identity of the judgment debtor. Theme of the controversy derived from the arguments is, as to whether the petitioner is the judgment debtor, surety, guarantor or otherwise responsible for satisfaction of decree. To address the issue one must remain alive of certain undisputed facts already available on record. Admittedly, two Civil Suits hearing Nos. 252 and 253/2007 were filed and title of the suits for the present controversy are quite relevant which are reproduced herein below:-- ' Title of Civil Suit No, 252 of 2007 Naveed Telecom (Pvt.) Limited, Khan Plaza 2nd Floor Opposite Sandeman High School Fatima Jinnah Road Quetta through Its Chief Executive Officer Naveed Aftab. Plaintiff ' Versus.
4. I). Syed Israr Haider Rizvi Franchise Owner Lahore of Naveed Telecom (Pvt.) Limited Quetta RIO House No,161-H Block No,5 Satellite Town, Quetta.
5. 2). General Manager (PSP) Pakistan Telecommunication Limited Headquarters Islamabad.
6. Defendants ' Title of Civil Suit No, 253 of 2007 ' Syed Israr Haider Rizvi Franchise Owner Lahore of Naveed Telecom (Pvt.) Limited Quetta RIO House No,161-H Block No,5 Satellite Town, Quetta. Plaintiff ' Versus.
7. 1). Naveed Telecom (Pvt.) Limited, Khan Plaza 2nd Floor Opposite Sandeman High School Fatima Jinnah Road Quetta through Its Chief Executive Officer Naveed Aftab.
8. 2). Miss Mehvesh resident of Khan Plaza 2nd Floor opposite Sandeman High School Fatima Jinnah Road Quetta CIO Naveed Telecom (Pvt.) Ltd. Defendants.
4. According to petitioner in Civil Suit No,252/2007 Naveed Aftab is the Chief Executive Officer and Company has been named by his brother Naeem Aftab. He has never received a single penny from decree holder nor he has signed any document nor for that matter he is or ever remained partner of the company. In Civil Suit No,252 of 2007 Naeem Aftab recorded his statement as plaintiff. For the sake of convenience relevant portion whereof reads as under:- {{URDU TEXT}} ' Similarly, the respondent No,1 has recorded his statement, relevant portion whereof reads as under:-- {{URDU TEXT}}
5. The perusal of the above reproduced statements leaves no room for doubt that Chief Executive Officer of the Naveed Telecom (Pvt.) Ltd. Is Naeem Aftab and not the petitioner. Similarly, the statement recorded- by the respondent No,1 Syed Israr Haider Rizvi establishes the fact that agreement was entered into between Naeem Aftab and respondent. No,1 Syed Israr Haider and the amount were paid to Naeem Aftab who is/was the CEO of the company and one Mehwish. Further the plaint in Civil Suit No,252/2007 was found to have been signed by Naeem Aftab. The affidavit in support of the application under Order XXXIX, Rules 1 and 2 r/w section 151, C.P.C. Filed in Civil Suit No,252 of 2007 categorically finds mention the signatures and name of Naeem Aftab, Chief Executive Naveed Telecom Private Limited Quetta. Same is the position with documents filed by the petitioner. The signatures available on the petition as well as rest of the documents filed either before the executing Court or before this Court clearly reveal that Naeem Ahmed is not a signatory to the agreement nor for that matter he has filed any suit, written statement nor even was heard as a party before trial court or appellate court. The identity of the petitioner being the ex-brother-in- law of the respondent No,1 is undisputed by the respondent No,l. Furthermore, the categoric statement of respondent No,1 before the trial Court reveals that the petitioner has got no concern whatsoever with the entire transaction right from the payment of amount up till establishment of the company. The petitioner made an innocent request and a fair demand i,e, let an issue be framed regarding identity of the petitioner as a judgment debtor but the executing Court without appreciating the material available on record discarded the request unjustifiably. True, a decree can be executed against a person who is not a judgment debtor provided he is a surety or a purchaser pendente lite, a heir of deceased judgment debtor and in possession of subject property of decree. However, in this case the petitioner is attempted to be booked merely on partial similarity of the name whereas legally even the sameness of name is not sufficient to bring someone within the clutches of the decree. Besides, sameness of the name one must have same interest, character or capacity within the meaning of judgment debtor, whereas in this case none of the requirements stand satisfied, therefore, the petitioner cannot be held liable for satisfaction of decree in A any capacity. Reliance is placed on the judgment titled as 'National Bank of Pakistan v.
9. S.R. Rehmatullah and another' reported in PLD 1970 Lahore 330 (relevant at page-334), wherein it has been observed as under:-- "The sameness is not confined merely to the identity of the name or of the individual but there must also be sameness of the interest, character, or capacity which the judgment-debtor must occupy in common in all the decrees. The individual may be the same, but if he has different interests; character or capacities, in different decrees under consideration, then he cannot be called the same judgment-debtor in all the said decrees. A person who is sued as a partner in a firm or against whom a decree has been passed as a partner of. Firm, is not the same judgment- debtor when another decree is passed against him in his individual capacity. See T. G. Sundaralyer v. K. N. Balusami Iyer and another (AIR 1956 Mad. 192), Balmer Lawrie and Co. v. Jadu Nath Banerjee (AIR 1915 Cal.
10. 658.), Pacific Bank Ltd. v. Thakur Singh Kalsi (AIR 1949 Cal. 396), Girdhari Lal v. Muni Lal and others (AIR 1963 Ph. 43), Mst. Inderbasi Kuer v. Satnarain Singh and others (AIR 1923 Pat. 521) and Sadhu Ram v. Firm Dhanpat Rai Telu Ram (AIR 1937 Lah. 937).
(b) The word 'judgment-debtor" is defined in section 2(10) of the Code so as to mean, "any person against whom a decree has been passed or an order capable of execution has been made". This will show that judgment-debtors may be of two kinds, namely, (i) those against whom a decree has been passed and (ii) those against whom an order capable of execution has been made. (For a distinction between a "decree" and an "order", reference may be made to the definitions of these words as contained in section 2(2) and section 2(14) of the Code. In section 73 of the Code, it is only a former kind of judgment debtor who has been referred to, namely, he against whom a decree has been passed. Now there is an obvious difference between:--
(a) a person against whom a decree has been passed, namely, a judgment-dgbtor stricto sensu: and
(b) a person against whom a decree may be executable (e.g., see section 146 of Code and Sm.
11. Hemlata Dasi v. Bengal Coal Company Limited AIR 1935 Cal. 738 which says that section 146 cannot enlarge the scope of section 73, as it is expressly made subject to the other provisions of the Code).
12. ' A person against whom a decree has been passed will always be a person against whom execution can also proceed; but a person against whom execution may proceed need not always be a judgment-debtor. As for example, a decree may be executed against a purchaser pendente lite or a person who might have stood surety after a decree is passed in order to obtain a stay order by the judgment-debtor. The mere fact, therefore, that in certain categories a decree can be executed against a person will not make him a judgment-debtor if the decree was not passed against him. 'The natural corollary of this is, that when a decree is passed against a person in his capacity as a partner of a firm, then he is a judgment-debtor in that decree, in that and that respect alone. In other words, it is the incidence of passing a decree, by which a. Person should become a judgment-debtor and not the mere fact of the execumbility of the decree against him.
13. This point gets support from the word "passed" used both in the definition of the "judgment- debtor" as well as in subsection (1) of section 73 of the Code."
14. In the light of above discussion and in the wake of facts narrated hereinabove I don't feel any hesitation to hold that the petitioner Naveed Ahmed was neither a party in the suits nor CEO of the Naveed Telecom (Pvt.) Ltd. Nor for that matter a partner guarantor or surety, therefore, he is not responsible for satisfying the decree in any form and capacity. Hence, I am inclined to accept this petition and set aside the impugned order dated 26.02.2014 passed by the Civil Judge-I, Quetta.
15. Resultantly, the objection petition filed by the petitioner sustains. The execution proceedings shall remain pending against Naeem Aftab and shall be finalized in accordance with law.
16. ' The parties to bear their own costs.
17. Revision .