ATIR MAHMOOD, J. Brief facts of the case are that the petiti oner filed application for withdrawal of consideration amount of Rs.70,00,000/- deposited by the respondent in a suit for specific performance of agreement to sell dated 20.02.2014 reached between the parties. The respondent filed objection petition which was dismissed by learned trial court vide order dated 02.04.2018 and held that the petitioner is entitled is the said amount. The respondent challenged the said order in revision petition which was dismissed by learned Additional District Judge, Okara vide judgment dated 05.06.2018. The respondent then filed application under Order XXI Rule 32 of Civil Procedure Code, 1908 which was also dismissed by learned trial court vide order dated 22.06.2018. Thereafter , the respondent filed appeal which was allowed by learned Additional District Judg e, Okara vide judgment dated 25.08.2018 disentitling the petitioner to receive the said consideration money depo sited by the respondent. Hence this writ petition has been filed.
2. Arguments heard. Record perused.
3. The sole controversy between the parties is as to who is entitled to receive the amount of Rs.70,00,000/- deposited by the respondent-plaintif f in the suit for specific performance of the agreement to sell.
4. The chequered history of this case shows that on 16.05.2014, the respondent-plaintif f filed a suit for specific performance of agreement to sell dated 20.02.2014 regarding land measuring 18 kanals situated in Chak No.38/GD, Tehsil and District Okara. During the pendency of the suit, there was a compromise between the parties.
As per Mark-A, i.e. affidavit furnished by the respondent-plaintif f himself, the land was purchased by the plaintif f for consideration of Rs.120,00,000/- out of which a sum of Rs.50,00,000/- was paid through pay order while the remaining amount of Rs.70,00,000/- was to be paid on 20.01.2015 and defendant was bound to execute the sale deed in favour of the plaintif f on receipt of the balance consideration amount. The petitioner-defendant submitted Mark B, i.e. affidavit by the petitioner , and acceded to the terms and conditions of the agreement to sell. The respondent deposited the balance consideration of Rs.70,00,000!- with the court on 09.03.2015. Thereafter , the case remained pending for about one year mainly due to strikes of the lawyer community . However , learned trial court on the basis of compromise decreed the suit of the plaintif f vide judgment and decree dated 22.04.2016 wherein it was specifically held that the defendant was entitled to receive the balance sale consideration of Rs.70,00,000/- deposited by the plaintif f. The petitioner-judgment debtor did not challenge the said decree but it was challenged by the decree holder-respondent by filing R.F.A. No.619/2016 before this Court to the extent that since the petitioner did not fulfill his commitment of compromise, he was not entitled to receive the amount of Rs.70,00,000/- deposited by him and the court should have passed the decree in his favour in lieu of Rs.50,00,000/-. The R.F.A. was, due to enhancement of pecuniary jurisdiction, remitted to the District and Sessions Judge, Okara. The R.F.A. was ultimately dismissed by learned Additional District Judge, Okara vide judgment and decree dated 27.10.2016. The respondent challenged the said order in R.S.A . No.298/2016 which was also dismissed by this Court vide judgment dated 27.10.2017. The respondent then preferred .C.P.L.A. No.2968-L/2017 before the Hon'ble Supreme Court which was later on withdrawn by him vide order dated 24.01.2018. As such, the judgment and decree passed by learned trial court dated 22.04.2016 attained finality .
5. Firstly on 03.05.2016, the petitioner filed application for withdrawal of the balance consideration money of Rs.70,00,000/- deposited by the respondent-plaintif f. Again, on 14.12.2017, the petitioner filed application for withdrawal of the said money . The respondent filed objection petition while raising almost the same objections which were taken in the appeals filed by him in first round of litigation. The objection petition filed by the respondent was, however , dismissed and the petition er was declared entitled to recover the said amount by learned trial court vide order dated 02.04.2018. The respondent assailed the said order in revision petition which was dismissed by learned Additional District Judge, Okara vide judgment dated 05.06.2018. The respondent then filed Writ Petition No.219381/2018 challenging judgment dated 05.06.2018 which was ultimately withdrawn by him on 12.06.2018.
6. In third round of litigation, the respond ent on 22.06.2018 filed application under Order XXI, Rule 32, C.P.C. on the same plea that since the petitioner did not fulfill the commitment as per compromise (Mark A and Mark he is not entitled to recover the sum of Rs.70,00,000/- deposited by the respondent. This application was dismissed by learned trial court in limine vide order dated 22.06.2018. The petitioner attacked the said order in appeal which was allowed by learned Additional District Judge vide impugned judgment dated 25.08.2018.
7. Perusal of history given in the preceding paragraphs reveals that a consent decree was passed by learned trial court whereby the respondent's suit for specific performance of agreement to sell was decreed whereas the petitioner was held entitled to recover the sum of Rs.70,00,000/- deposited by the respondent-plaintif f on account of balance consideration amount of the suit property . In compliance of the said decree, the respondent got executed the sale deed in his favour in lieu of Rs.50,00,000/- only in utter disregard to the fact that the sale price of the property was Rs.1,20,00,000/- and the civil court while decreeing the suit of the respondent had also considered the same amount. In this way, he saved a reasonable amount by cheating the state/revenue department. The petitioner got benefit of the consent decree more than he was entitled to. But at the same time, he created hurdles in the way of the petitioner to get his due benefit of the consent decree. Had the consent decree not been acceptable to the respondent, he would have not taken any benefit thereof. Meaning thereby he accepts the part of the consent decree which favours him but opposes the part of the same which favours the other side.
This clearly shows mala fide on his part. Furthermore, when, in first round of litigation, the respondent had failed upto the Hon'ble Supreme Court of Pakistan to take any decision in his favour on the sole plea of dishonouring of commitment made by the petitioner in his affidavit Mark-A, the respondent could not be allowed to take the same plea in second round of litigation. However , in this round too, he failed to get decis ion in his favour . But he did not ended here and after failure in two rounds of litigation, he initiated the third round of litigation by filing application under Order XXI, Rule 32, C.P.C. on the same plea which was not accepted by civil court to the apex court/this Court.
8. Order XXI, Rule 32, C.P .C. reads as under: "32. (1) Where the party against whom a decree for the specific performance of a contract, or for restitution of conjugal rights, or for an injunction, has been passed , has had an opportunity of obeying the decree and has willfully failed to obey it the decree may be enforced in the case of a decree for restitution of conjugal rights by the attachment of his property or, in the case of a decree for the specific .performance of a contract or for an injunction by his detention in prison, or by the attachment of his property , or by both.
(2) Where the party against whom a decree for specific performance or for an injunction has been passed is a corporation, the decree may be enforced by the attachment of the property of the corporation, or with the leave of the Court, by the detention in prison of the directors or other principal officers thereof or by both attachment and detention.
(3) Where any attachment under sub-rule (1) or sub-rule (2) has remained in force for one year if the judgement debtor has not obeyed the decree and the decree-holder has applied to have the attached property sold, such property may be sold; and out of the proceeds the Court may award to the decree -holder such compensation as if thinks fit, and shall pay the balance (if any), to the judgment-debtor on his application.
(4) Where the judgment-debtor has obeyed the decree and paid all costs of executing the same which he is bound to pay, or where, at the end of one year from the date of the attachment, no application to have the property sold has been made, or if made has been refused, the attachment shall cease.
(5) Where decree for the specific performance of a contract or for an injunction has not been obeyed , the Court may, in lieu of or in addition to all or any of the processes aforesaid, direct that the act required to be-done may be done so far as practicable by the decree-holder or some other person appointed by the Court. At the cost of the judgment-debtor , and upon the act being done the expenses incurred may be ascertained in such manner as the Court may direct and may be recovered as if they were included in the decree.
(Emphasis provided)
Bare reading of above reveals that Sub-Rules (1) and (2) of Rule 32 of Order XXI, C.P.C. come in action in case judgment-debtor fails to comply with the decree passed by the court which is not the case here. Sub-Rules (3) and
(4) deal with attachment of the property whereas Sub-Rule (5) is with regard to non-compliance of the decree of the court. These two provisions also do not attract in this case. Therefore, Order XXI, Rule 32, C.P.C. does not apply or attract in the instant case in any manne r. I am conscious of the fact that this Court in R. S. A. No. 298/2016 (dismissed vide judgment dated 27.10.2017) has observed that this matter can be resolved under Order XXI, Rule 32, C.P.C. As earlier noted, the provisions of Order XXI, Rule 32, C.P.C. are not applicable in this case, therefore, the observation made by this Court being against the law is of no legal effect and the application filed by the respondent under the said provision was required to be dealt with strictly in accord ance with law and not in view of the said observation of this Court.
9. The application under Order XXI, Rule 32, C.P.C. was nothing but a mischief on part of the respondent and the principle of res judicata was duly applicable. Learned trial court in view of the facts narrated above seems fully justified to dismiss the said application in limine . However , learned Additional District Judge allowed the application while observing that since the petitioner failed to fulfill his commitment to execute the sale deed till cut-of f-date, he is not entitled to the amount deposited by the respondent. It is worthy to note that the cut-of f-date to fulfill the terms and compromise by the parties was 20.01.2015 but the balance consideration amount was deposited by the respondent-plaintif f on 09.03.2015. Therefore, the compromise was violated by the respondent-plaintif f himself. If mere non-compliance of the compromise is taken in consideration the respondent was not entitled to the decree granted to him by the civil court. Howeve r, it appears from order dated 20.01.2015 of learned trial court that the time was extended with mutual consent of the parties till 19.02.2015. Order dated 07.03.2015 of learned trial court further extended time to the responden t to deposit the balance consideration amount. Thereafter , the matter remained pending before the civil court for multiple reasons mainly for strike of the lawyers and ultimately , the suit of the respondent was decreed holding the petitioner entitled to recover the amount of Rs.70,00,000/-. Granting said amount to the petitioner was challenged by the respondent before the district court, this Court and the apex court but that order remained intact. In second round of litigation, the situation remained the same as writ petition filed by the respondent against orders passed in favour of the petitioner was withdrawn by him. In the said scenario, there was no occasion for learned Additional District Judge to pass judgment against the decisions given by this Court as well by the apex court. The case of the respondent is also hit by the "doctrine of election". Reliance is placed on the ratio laid down by the Hon'ble Supreme Court of Pakistan in case Trading Corporation of Pakistan v. Devan Sugar Mills Limited and others (PLD 2018 SC 828). Relevant portion therefrom is reproduced below:'
"We have noted that facts and ground in both set of the proceedings are substan tially same. The moment suitor intends to commence any legal action to enforce any right and or invoke a remedy to set right or to vindicate an injury , he has to elect and or choose from amongst host of actions or remedies available under the law. The choice to initiate and pursue one out of host of available concurrent or co-existent proceedings/actions or remedy from a forum of competent jurisdiction vest with the suitor . Once choice is exercised and election is made then a suitor is prohibited from launching another proceeding to seek a relief or remedy contrary to what could be claimed and or achieved by adopting other action and or remedy , which in legal parlance is recognized as doctrine of election, which doctrine is culled by the courts of law from the well-recognized principles of waiver and or abandonment of a known right claim, privilege or relief as contained in Order II, rule 2, C.P.C., principles of estoppel as embodied in Article 114 of the Qanun-e-Shahadat Order 1984 and principles of res judicata as articulated in section 11, C.P.C. and its explanations. Doctrine of election apply both to the original proceedings/action as well to defences and so also to challenge the outcome on culmination of such original, proceedings/action, in the form of order or judgment/decree (for illustration it may be noted that multiple remedies are availa ble against possible outcome in the form of an order/ judgment/ decree etc. emanating from proceedings of civil nature , which could be challenged/ defended under Order IX rule 13 (if proceedings are ex-parte), section 47 (objection to execution), section 114 (by way of review of an order),section 115 (revision), under Order XXI, rules 99 to 103 C.P.C. and section 96, C.P .C. (appeal against the order/ judgment) etc."
(Emphasis provided)
10. The respondent has taken benefit of the consent decree of the civil court by getting executed sale deed in his favour and has also taken possession of the suit property . Therefore, he had no ethical or lawful justification to create hurdles in the way of the petitione r to get benefit of the same decree. The respondent is approbating and reprobating at the same time. On one side, he supports part of the consent decree which favours him but on the other side, he opposes the part of the decree which favours the petitioner which cannot be permitted under any law.
11. It appears from the record that the respondent contested the withdrawal of the amount deposited by him with sheer mala fide intention merely to cause agony and deprive the petitioner from his lawful right. On failure upto the apex court in the first round of litigation, there was no lawful reason or justification with the respondent to agitate the matter again and again on one and the same plea of non-fulfillment of the commitment by the petitioner made by him in affidavit Mark-B. Therefore, his conduct of raising one and the same objection and taking one and the same plea each time to contest the matter is shameful, reprehensible, inexcusabl e and condemnable which calls for imposing heavy penalty upon him. But taking lenient view, I am refraining myself from doing so. Learned Additional District Judge has ignored the above facts of the case and passed the impugned judgment while sitting over the judgments of the superior courts illegally and unlawfully which cannot sustain.
12. For what has been discussed above, this civil revision is allowed , impugned judgment dated 25.08.2018 passed by learned Additional District Judg e, Okara is set aside and order dated 22.06.2018 passed by learned trial court/executing court is restored.