MOHAMMAD IBRAHIM KHAN, J.--By this writ petition Shafiullah the Petitioner herein, has set in the following prayer:- <i>"In the light of the above and many other grounds to be advanced at the time of hearing with the prior permission of this Hon'ble Court, it is therefore, humbly prayed that consequent upon, the acceptance of this writ petition, the impugned order of lower Appellate Court (Respondent No, 7) dated 06.06.2013 may kindly be declared illegal, unlawful, unconstitutional, against law and natural justice, and the Respondents Nos, I and 2 may kindly be held responsible for the payment of decretal amount which is outstanding against the original judgment debtor, as they stood surety for the payment during the tendency of the original suit by filing affidavit in this regard, and the Respondent No,8 be directed to proceed against the Respondents Nos, I and 2 according to law.
Any other remedy coupled with cost, which is efficacious and appropriate, in peculiar circumstances of the case, may please he graciously granted though not specifically prayed for." </i> 2.In essence the grievance of the Petitioner is that he had filed a suit for declaration cum permanent injunction against the predecessor-in-interest of the Respondents Nos, 3 to 6 and Manager Habib Bank Chakisar Branch on account of being owner of the house bearing Khasra No, 1928 situated within the local limits of Mauza Chakisar. The said house was crumbled down in the earthquake occurred in the year 2005 and predecessor-in-interest of the Respondents Nos, 3 to 6 was tenant-at-will in the said house, so, he has no right to construct the same or receive compensation in lieu of it from the government exchequer, which has been issued to the earthquake affectees in the year 2006. During the pendency of this Civil Suit No, 23/1, the Petitioner moved an application for obtaining temporary injunction, which was dismissed by the learned Trial Court on 17.07.2007 mainly on the pretext that learned counsel for the Defendant/Respondents Nos, 1 and 2 furnished an affidavit that they will pay double amount in case of decree in favour of the Petitioner (here in before called as Plaintiff).
3.After grant of decree in favour of Petitioner (here in before called as Plaintiff), an appeal was preferred bearing No, 144/13 of the year 2010 on behalf of the Respondents Nos, 1 and 2, which was also answered in negative vide the order dated 13.10.2011 by the learned District Judge/Zila Qazi Shangla and being not assailed further the said order has attained finality. For satisfaction of the decree, the Petitioner (here in before called as Plaintiff/decreeholder) filed execution petition before the learned Executing Court i,e, Respondent No, 8 by adding names of the Respondents Nos, 1 and 2 in the column of judgment debtors. The other part filed cross-objection petition bearing No, 1/11 of the year 2012 before the learned Executing Court, which was left undecided as learned appellate Court suspended the execution proceedings in wake of the pendency of civil revision bearing No, 19/5 of 2012. In the meanwhile, the Respondents Nos, 1 and 2 submitted revision petition for deletion of their names from the panel of judgment debtors in the execution proceedings, which was allowed vide the impugned order dated 06.06.2013, resultantly names of the Respondents Nos, 1 and 2 were deleted from the list of judgment debtors. Having no other alternate remedy the Petitioner/decree-holder approached this Court through the writ petition in hand inter alia on the grounds mentioned therein.
4. Having heard arguments of learned counsel for the Petitioner, while despite hectic efforts service of the Respondents could not be procured, hence most of them have been placed ex parte.
5. The impugned order dated 06.06.2016 is gone through, it reveals that the Petitioners, who were herein the Respondents, were not arrayed party in the original suit bearing No, 23/1 decided by the learned Civil Court, therefore no decree was passed against each of the judgment debtor in the execution proceedings. Hence, the petition was accepted and names of the Petitioners herein now the Respondents/judgment debtors in the execution proceedings of the decree dated 24.5.2010 were deleted from file No, 2/10 of 2012 pending adjudication before the learned Executing Court, Chakisar.
6. Hence the impugned order in view of the provisions of section 145 (1) of the Civil Procedure Code has not been passed in accordance with law, which reads as under:-
145. <i><u>Enforcement of liability of surety.</u> - Where any person has become liable as surety-- (a)for the performance of any decree or any part thereof, or (b)for the restitution of any property taken in execution of a decree, or (c)for payment of any money, or for the fulfillment of any condition imposed on any person, under an order of the Court in any suit or in any proceedings consequent thereon the decree or order may be executed against him, to the extent to which he has rendered himself personally liable, in the manner herein provided for the execution of decrees, and such person shall, for the purpose of appeal, be deemed a party within the meaning of Section 47.
Provided that such notice as the Court in each case thinks sufficient has been given to the surety. </i>
7. During pendency of the execution proceedings an objection petition was filed before the learned executing Court, wherein it was specifically mentioned therein in Para V in respect of taking over of the responsibility by sureties/guarantors for payment of an amount released from the government exchequer for renovation of the house damaged during the earthquake which was withdrawn from Habib Bank Chakisar Branch. It has also been held in 2002 CLC 451 "Habib Bank Limited v. Malik Ata Muhammad and 4 others". The relevant citations (a) & (e) are reproduced as under:- (a)<i>Civil Procedure Code (V of 1908)
Ss. 47 & 145. Execution of decree. Liability of surety. Surety not arrayed as party to suit or appeal.
Execution of decree against such surety. Validity. Decree passed against a judgment-debtor could also be executed against such surety, which was not even arrayed as a party to suit or appeal.
Liability of the surety was co-extensive with the judgment-debtor and continued till such tune that the decree was either satisfied by the judgment-debtor or by the surety.
(e) Civil Procedure Code (V of 1908)
Ss. 147 & 96. Liability of surety. Scope. Appeal was continuation of suit. If appeal was accepted, the liability of the surety was revived. Such revived liability could be enforced against the surety.</i>
8. Under the Contract Act, 1872 that even a guarantor can only be burdened to the extent and in accordance with the terms of the guarantee executed by him. In this respect, reliance has been placed on 2002 CLD 509 "Mst. Parveen Amir v. National Bank of Pakistan and 3 others". The relevant citation (b) is reproduced as under:-- (b)<i>Contract Act (IX of 1872) ...Ss. 126 & 128.. Liability of guarantor. Extent. Guarantor could only be burdened to the extent and in accordance with the terms of guarantee executed by him." </i> The liability of the guarantor being co-extensive with judgment debtor and surety is liable by all means to fulfill his commitment in respect of the payment with regard to which he has taken the responsibility for its payment. The learned Executing Court can lawfully proceed against the sureties for the recovery of the amount to the extent of decree, thus, the names of the Respondents Nos, 1 and 2 were unlawfully deleted from the panel of judgment debtors in the execution proceedings by acceptance of the revision petition by the learned District Judge/Zila Qazi Shangla through the impugned order, which stands set aside, the sureties cannot be exempted from the liability of the payment in such hasty manner in violation of the provision of Section 145(1) of the Civil Procedure Code.
9.It is as learnt that out of the Respondents, Saifullah Khan, Respondent No, 1 has died, so his Legal Heirs are liable to pay the decretal amount in equal share, while the Respondent No, 2 Zahid Ali has been placed ex parte as he was only interested to defend his rights in this writ petition.
10. Copy of this judgment be placed before the learned Executing Court for the recovery of decretal amount from guarantors/ sureties, exclusively who shall be summoned before the learned executing Court.
11.In such terms this writ petition is accepted accordingly.