NAZEER AHM ED LANGOVE, J. This petition is directed against the order dated 15th June 2019 (hereinafter the "impugned order"), passed by learned Additional District Judge-I, Quetta (hereinafter the "executing court"), in Execution Application No.03/2016, whereby the application under Order XXI, Rule 27 read with sections 49,50 and 151, C.P.C. filed by the petitioner (judgment debtor) was dismissed under Article 114 of Qanun-e-Shahadat Order, 1984. Hence, this petition.
2. Facts of the case are that respondent (plaintiff) filed Civil Suit No.04/2011 against the petitioner and his father (defendants) for recovery of Rs.37,00,000/- with the averments that the plaintiff had paid a sum of Rs.60,00,000/- cash to the defendants for purchase of several properties including one acre land at Kachmor, and a shop bearing No.F-23, situated at Malik Plaza, Abdul Sattar Road, Quetta; the defendants; however, failed to perform their part of obligations; as a result, the agreement dated 3rd July 2009, was executed, whereby they agreed to make payment of Rs.37,00,000/- to the plaintiff, while remaining amount was left to be decided in accordance with Sharia.
In the meantime petitioner (defendant) also executed an agreement on 4th July 2009; but could not be materialized; hence, this suit; contested on legal and factual grounds.
In support of his claim, the respondent (plaintiff) produced as many as nine witnesses and recorded his statement on Oath. In rebuttal, the petitioner (defendant) failed to appear and produce his witnesses; on the basis whereof, vide order dated 13th February 2012, he was proceeded against exparte, followed by exparte judgment dated 30th March 2012, whereby the suit filed by the respondent (plaintiff) was decreed in his favour and against the defendants.
The respondent (decree holder) filed Application No.3/2016 for execution of the judgment and decree against the petitioner (judgment debtor) and his brothers being successors of his late father.
3. The petitioner (judgment debtor) also filed an application with the following prayer: "It is, therefore, respectfully prayed that keeping in view the above submissions, the applicant/ judgment debtor Nos.2 to 4 may kindly be exempted from personal appearance or liability of judgment and decree dated 30.03.2012 and the judgment debtor No. 1 /applicant may kindly be allowed to pay the remaining decretal amount through monthly installment of Rs.20, 000/- per month in the interest of justice, equity and fairplay."
In response, decree holder (respondent) filed his reply wherein he raised various legal objections in respect of maintainability of the application and contested the same on merits, as well.
The learned Executing Court, after hearing the parties, vide, order dated 8th May 2015, allowed the application in the following terms: "In view of above submission on behalf of learned counsel for the parties along with decree holder and judgment debtor the request of judgment debtor is allowed and he is directed to submit Rs.20, 000/- on every month till December 2015 in the remaining decretal amount after deduction of the paid amount to be submitted till 31.12.2015."
4. Once again the petitioner (judgment debtor) filed another application under Order XXI, Rule 27 readwith sections 49, 50 and 151, C.P.C, with the contention that the decretal amount i.e. Rs.37,00,000/- ought to have been paid by the petitioner and three other judgment debtors namely Asim Tufail, Asif Tufail and Atif Tufail, all sons of late Haji Tufail, but the execution proceeding is pending only against him (petitioner), who has made payment of Rs.12,00,000/- with an additional amount of Rs.200,000/-, therefore, he may be discharged from payment of remaining decretal amount.
The respondent (decree holder) contested the application and prayed for its dismissal.
The learned Executing Court, after hearing arguments, vide, impugned order dated 15th June 2019, dismissed the application mainly on the ground of principle of Estoppel. Hence, this petition.
5. Heard the learned counsel for the parties and gone through the record with their assistance.
Order XXI, Rule-1(1), C.P.C deals the matters pertaining to various modes of payment of money under a decree namely:
(a) Into the Court whose duty is to execute the decree; or
(b) Out of Court to the decree-holder;
(c) Otherwise as the Court which made the decree directs.
Sub-rule (2) of the Order ibid provides that when a payment is made under clause (a) of sub-rule (1), notice of such payment shall be given to the decree holder.
6. It is relevant to note here that the parties to the decree are at liberty to contract with respect to their rights and obligations under the decree, and in so far as such an agreement does not bring under the decree a liability extraneous to the claim in the suit, it would be an adjustment and this rule provide a complete procedure for recording the adjustment in execution proceedings.
A compromise after final decree under Order XXIII, Rule 3 may be recorded under this rule; following rule i.e. Rule-4 Order XXIII, further provides that a decree can be fully or partially adjusted between all or some of the parties.
On the other hand where new rights are created by an agreement, the executing court cannot enforce such rights, as it cannot go beyond the decree and for this purpose a separate suit may lie.
No doubt an agreement, to vary the mode in which the relief is to be realized, or the time for such realization, is not an adjustment; but where a dispute arises regarding the factum of adjustment, it is to be resolved by the executing court and a separate suit will be barred.
In the instant case, the learned counsel for the petitioner stressed upon the point that the petitioner was not aware of the consequences of agreement and liability imposed upon him in terms of payment of decretal amount for himself and rest of the judgment debtors, (his real brothers), which in my perception is a lame excuse on petitioner's part for the simple reason that he had not only agreed to make payment of the entire decretal amount before the Court, but filed an affidavit also in this behalf. Above all, he made payment of Rs.14,00,000/-, while his individual liability was of Rs.12,00,000/-, meaning thereby, adjustment before the executing court was not only carried out in a legal and lawful manner but acted upon accordingly.
English law recognizes that the conduct of a person may be such that he is estopped from litigating the issue all over again. Conduct of a person to operate as estoppel has to involve some kind of express or implied representation, which might have led another person to change his position to his disadvantage by believing the representation made to him as correct. It is one of the essential elements of estoppel by conduct that the party against whom it is pleaded should have made some representation intended to induce a course of conduct by the party to whom it was made. Such element is very much available in the matter in hand, as such, there is no escape to back from his wards and conduct; thus, he cannot be allowed to frustrate execution of the decree on bald ground of ignorance.
7. The learned executing court passed a well-reasoned and speaking Order, which is based on good grounds of law and facts, therefore, is not open to any exception; hence, maintained; consequently, the petition stands dismissed.