SULTAN TANVIR AHMAD, J. Through the present petition, filed under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973, judgment dated 16.04.2022 passed by learned Additional District Judge, Minchinabad, District Bahawalnagar has been assailed, whereby, order dated 22.01.2021 passed by learned Civil Judge, 1st Class, Minchinabad, District Bahawalnagar, has been upheld.
2. Facts, necessary for the disposal of the present petition, are that the suit dated 11.06.2019 filed by respondent No. 3 was decreed on 29.07.2019 (hereinafter caned as the 'decree') by learned Additional District Judge, Minchinabad, District Bahawalnagar for an amount of Rs.350,000/- and cost of Rs.15,024/-. Respondent No.3 (hereinafter called as the 'decree-holder') filed execution petition on 20.06.2020 which was objected by the petitioner, inter alia, on the ground that the amount involved in the decree has already been paid, which is duly acknowledged in writing as well as signed by the decree-holder. On 22.01.2021 learned Civil Judge, 1st Class, Minchinabad, District Bahawalnagar (the learned 'executing Court') rejected the objection raised by the petitioner and concluded as follows:- ".......Perusal of record shows that decree for recovery of money of Rs.3,50,000/- was passed by learned Additional District Judge, Minchinabad vide judgment dated 29.07.2019. The execution petition was entrusted to this court for satisfaction. Notice was issued to the judgment-debtor but he has filed objection petition. The receipt annexed with the objection petition does not conform to prescribed procedure as provided in chapter XXI of CPC. No requisite tickets have been pasted on the receipt. The judgment-debtor has failed to show that he has paid decretal amount of Rs.3,50,000/- out of court. So, the objection petition filed by judgment-debtor is rejected......"
3. The above order was challenged, by the petitioner, through Civil Revision No. 15 of 2021 before the learned Additional District Judge, Minchinabad. However, the same was dismissed by the learned Additional District Judge, Minchinabad, District Bahawalnagar and the order of the learned executing Court has been upheld vide judgment dated 16.04.2022. Aggrieved from the same, present petition has been filed.
4. Hafiz Muhammad Saleem Balouch, learned advocate for the petitioner has submitted that learned two Courts below have committed error of law while passing the impugned judgment as well as order and they have misinterpreted the provisions of Order XXI, Rules 1 and 2 of the Code of Civil Procedure, 1908 (hereinafter called as the `Code'). Learned counsel has further submitted that learned two Courts below have wrongly reached to the conclusion that written proof of payment required affixation of stamps, as there is no such requirement provided in Order XXI, Rules 1 and 2 of the Code wherein, out of Court payment (i) by banking instruments, (ii) postal money order, and
(iii) payment evidenced in writing and signed by decree-holder are permissible modes; that the acknowledgment dated 04.02.2020 is signed by the decree-holder, which is sufficient for the purpose of law. The learned counsel has contended that if there was any doubt as to the payment made by the petitioner or the signatures of the decree-holder on the written acknowledgment of the payment then in the given circumstances of the case, it was incumbent upon the learned executing Court to frame issues and to call the evidence including the expert evidence for verification of the signatures of decree-holder on the acknowledgment of the payment of Rs.350,000/-, dated 29.07.2019 (hereinafter called as the `acknowledgment').
5. Ms. Imbesat Mehar, learned advocate for the decree-holder has vehemently opposed the present petition and she has submitted that the acknowledgment does not contain the national identification card numbers of the decree-holder and the marginal witnesses, which clearly creates doubt on the acknowledgment and even otherwise, the same is fake on the face of it.
Learned counsel has further submitted that Order XXI, Rule 2(3) of the Code has clearly imposed the restriction on recognition of any payment made in violation of Order XXI, Rule 1 of the Code.
6. I have heard the arguments and perused the record with the able assistance of the learned counsel of the parties.
7. The relevant provisions of Order XXI, of the Code provides as under:- "1. Modes of paying money under decree.
(1) All money payable under a decree shall be paid as follows, namely:-
(a) into the Court whose duty it is to execute the decree; or
(b) out of Court to the decree-holder through a bank or by postal money order or evidenced by writing signed by the decree-holder or his authorised agent; or
(c) otherwise as the Court which made the decree directs.
(2) Where any payment is made under clause (a) of sub-rule (I), notice of such payment shall be given to the decree-holder.
(2) Payment out of Court to decree-holder.
(1) Where any money payable under a decree of any kind is paid out of Court, or the decree is otherwise adjusted in whole or in part to the satisfaction of the decree-holder, the decree-holder shall certify such payment or adjustment to the Court whose duty it is to execute the decree, and the Court shall record the same accordingly.
(2) The judgment-debtor also may inform the Court of such payment or adjustment, and apply to the Court to issue a notice to the decree-holder to show cause, on a day to be fixed by the Court, why such payment or adjustment should not be recorded as certified; and if, after service of such notice, the decree-holder fails to show cause why the payment or adjustment should not be recorded as certified, the Court shall record the same accordingly.
(3) Any payment not made in the manner provided in rule 1 or any adjustment not made in writing shall not be recognized by the Court executing the decree".
(Emphasis Supplied)
8. Order XXI, Rule 1(1)(b) of the Code permits out of Court payment by the judgment-debtor through (i) bank or (ii) postal money order or (iii) payment which is evidenced in writing and signed by the decree-holder or his authorized agent. Order XXI, Rule 2(1) of the Code makes it obligatory upon the decree holder to certify such payment or adjustment before the learned Court whose duty it is to execute the decree. However, under Order XXI, Rule 2(2) of the Code judgment debtor can also inform the Court and apply the learned Court to issue notice to the decree-holder as to show cause as to why such payment or adjustment should not be recorded as certified.
9. There is no requirement in Order XXI, Rule 1(1)(b) of the Code that the acknowledgment must bear the revenue stamps. In this regard aforesaid rule merely requires that the Writ Petition No.3377 of 2022 (Judgment) this out of Court payment should be evidenced in writing and signed by the decree-holder or his authorised agent. Furthermore, the legislature has used the word 'may' in Rule 2(2) ibid. when allowing the judgment-debtor to apply or inform the Court regarding out of Court payment made to decree-holder. The relevant provisions do not provide any consequence for not informing or applying the concerned learned Court after such payment through permissible mode, either.
10. Law in above regard has already been settled by this Court in cases titled "Muhammad Tariq v.
Mst. Fazeelat alias Fareelat Bibi" (PLD 1997 Lahore 128) and "Asghar Ali v. Additional Sessions Judge, Kasur and others" (2015 MW 353). It will be beneficial to reproduce the relevant part of the "Muhammad Tariq" case (supra), which is as follows:- "I find that the requirements of section 47, C.P.C have not been satisfied by the learned Civil Judge as well as by the learned Additional District Judge in this case, Whatever may be the pleas as regards the factual as well as legal sides of the petitioners and the respondent the same were required to be ascertained and adjudicated upon by framing of issues and recording of evidence of the parties. The intention of law appears to be to do substantial justice between the parties and not to go by mere technicalities of procedure. The period of 90 days for informing the Court in my opinion is directory provision and not a mandatory provision as no consequences are to follow in case of such failure. The law does envisage a distinction between directory provisions and mandatory provisions as laid down in Mukhtar Hussain Shah v. Waseem Sajjad PLD 1986 Supreme Court 178. In the case of Imtiaz Ahmad v. Ghulam Ali PLD 1963 Supreme Court 382 and Manager, Jammu and Kashmir State Property in Pakistan v. Khuda Yar and another PLD 1975 SC 678 the Supreme Court has laid down that Civil Courts of this country have to keep in view the substantive rights of the parties and not to go by mere technicalities of procedure".
(Emphasis supplied)
9. Apparently, it also escaped the view of the learned revisional Court that accepting the bare denial by the decree-holder regarding his signatures on the acknowledgment, without further probe, inquiry or assistance of expert is highly unsafe. A reading of the impugned order and judgment reflects that no effort is made to even look into the genuineness of the signatures of the decree-holder or the signatures of the attesting witnesses and the acknowledgment has been ignored simply for not appending copies of national identification cards of the decree-holder or witnesses and affixing revenue stamps. The Honourable Sindh High Court in case titled "Dr. Major Abdul Ahad Khan through his Legal Representatives v. Muhammad Iqbal through his Legal Representatives" (PLD 1989 Karachi 102), somewhat in similar circumstances, while examining the matter of simple denied of signatures, remanded the case for not seeking expert evidence or conducting proper comparison of signatures and observed as follows:- "... the procedure adopted by the Courts below was totally contrary to the rule of prudence laid down by the superior Courts in this regard. In a case of this nature where the signature was totally denied by one of the parties it was highly unsafe for the Court to have taken upon itself to determine the genuineness or otherwise of the signature without having available to it the assistance of some expert witness. The procedure adopted by the Courts below was much more objectionable in this case as this was done at the time of writing of order without first comparing it in the presence of the counsel for the parties. I regret to say that while holding the signature on the tenancy agreement as similar to the admitted signature of the landlord the two Courts below did not give any reason for arriving at such conclusion. The orders of the Courts below also do not show that they took help of any technical process for reaching the above conclusion...".
(Emphasis supplied)
9. Denial of the decree-holder from the acknowledgment, in the given circumstances of the case, clearly requires framing of issue(s) and recording of evidence. I am of the considered opinion that findings of learned two Courts below are contrary to the law and rule of prudence hence, cannot be sustainable.
10. In view of the above discussion, the impugned judgment dated 16.04.2022 passed by learned Additional District Judge, Minchinabad, District Bahawalnagar and order dated 22.01.2021 passed by learned executing Court are set-aside, with the direction to the learned executing Court to frame proper issue(s) and record evidence before reaching to the conclusion. The amount deposited by the petitioner as consequence of order dated 20.07.2022 be remitted to the learned executing Court for onwards deposit in the profit bearing account in any scheduled bank, until the decision. The present petition is allowed in above terms. No order as to cost.