1. This is defendant-judgment-debtor's revision petition. The law point to be determined is whether the expression "in execution of a decree for money" used in section 5 of the West Pakistan Relief of Indebtedness Ordinance, 1960 (hereinafter called the Ordinance) includes "execution of order for money as costs" and therefore the judgment-debtor is immune from arrest, under the Ordinance, in execution of the order of costs.
2. The facts pertaining to the point are as under:- Sain Sultan and three others plaintiffs sued Qutab Khan and two others (Suit No. 40/1 of 1963) for a declaration that the plaintiffs are in possession of their respective shares in the suit property. The plaintiffs, in the alternative, also prayed for possession of the suit land, if they were held to be out of possession of the same. The Senior Civil Judge, Hazara by his judgment dated 8-9-1967 granted the plaintiffs the decree prayed for against the defendants with costs. According to the decree sheet the plaintiffs costs was calculated to be Rs. 1,793.49. The defendants' appeal from this judgment and decree was dismissed by the District Judge, Hazara on 16-4-1968, leaving the parties to bear their own costs. A revision petition was also unsuccessful in the High Court.
3. Later on in the year 1969 Sain Sultan etc. Plaintiffs---decree-holders filed application for the execution with respect to the costs amounting to Rs. 1,793.49 by arrest and detention of Qutab Khan judgment-debtor in civil prison. Notice of this application was served on the judgment-debtor.
2. Qutab Khan judgment-debtor by his application dated 23-6-1969 claimed immunity from arrest under the Ordinance. The application was contested by the decree-holder. Ultimately the execut-- ing Court by his order dated 4-12-1969, was of the view that the judgment-debtor could not seek protection under the Ordinance. He, therefore, rejected the application and ordered akhri notice to the judgment-debtor for payment of the costs on 9-1-1970.
3. The order dated 4-12-1969 was challenged in appeal before the District Judge, Hazara. The learned appellate Court held that the appellant could not claim immunity from arrest under section 5 of the Ordinance, because "the amount of Rs. 1,793.49 is the costs in a decree for declaration and possession and it is not the decree for money". He, therefore, dismissed the appeal by his judgment dated 7-3-1970.
4. Section 5 of the Ordinance provides:- "5. Immunity from arrest.-No debtor shall be arrested or imprisoned in execution of a decree for money, whether passed before or after the commencement of this Ordinance."
4. Section 2(b) defines debt and provides that "debt" includes all liabilities of a debtor in cash or in kind, secured or unsecured payable under a decree or order of a civil Court or otherwise, whether mature or not,----'. Section 2(c) gives the definition of debtor as under:- "(c)'debtor' means a person who owes a debt; and -
(i) who both earns his livelihood mainly by agriculture and is either a land-owner or tenant of agricultural land; or
(ii) who earns his livelihood as a village artisan paid in cash or kind for work connected with agriculture; or
(iii) whose total assets do not exceed five thousand rupees; Explanation.---A debtor shall not lose his status as such;
(i) through involuntary unemployment or on account of incapacity, temporary or permanent by bodily infirmity or, it he is or has been in the Armed Forces of Pakistan, only on account of his pay and allowances or pension exceeding his income from agricultural sources;
(ii) by reason of the fact that he derives income by using his plough cattle for purposes of transport;
(iii) only because he does not cultivate with his own hands;"
5. Qutab Khan is admittedly a debtor within the meaning of section 2 (c) of the Ordinance. A debt includes all liabilities of a debtor in cash secured under a decree or order of the civil Court or otherwise. `Costs' in law means the amount of money ordered B by the Court to be paid to a successful party in a legal proceed--ings while passing judgment or order. A Court, after a case has been heard, proceeds to pronounce judgment and on such judg--ment a decree follows. (See section 33, C. P. C.) An order as to costs is passed under section 35, C. P. C. This section provides: "The costs of and incident to all suits shall be in the dis--cretion of the Court and the Court shall have full power to determine by whom or out of what property and to what extent such costs are to be paid, and to give all necessary directions for the purposes aforesaid."
6. The order of costs is not covered by the definition of "decree" under subsection (2) of section 2, C. P.
7. C. Decisions given by Courts of law can either be decrees or orders. Both must be formally expressed. Both are executable. However, the pro--visions of the Code of Civil Procedure relating to the execu--tion of decree shall in so far as they are applicable, be deemed to apply to the execution of orders, as provided by section 36, C. P. C.
8. Rule 6 (2) of Order XX, C. P. C. Lays:- "The decree shall also state the amount of costs incurred in the suit and by whom or cut of what property and in what proportions such costs are to be paid."
9. Form of decrees in original suits under Order XX, rules 6 and 7, C. P. C. Is given in Schedule 11, Appendix D, at No. 1. This Form is: SCHEDULE No. 11.
10. APPENDIX D.
11. Decree No. 1.
12. Decree in Original Suits. (O. XX, rr. 6, 7) (Title)
13. Claim for---------.
14. This suit coming on this day for final disposal before----in the presence of-----for the plaintiff and of-----.For the defendant, it is ordered and decreed that----and that the sum of Rs.-- -be paid by the-----to the on account of the costs of this suit, with interest thereon at the rate of----per cent.
15. Per annum from the date of realization.
16. Given under my hand and the seal of the Court, this---day of-----19.
17. Judge.
18. According to Order XX, rule 6 (21, C. P. C. And this Form, an order as to the account of costs of suit forms part of a decree. Rule 30 of Order XXI, C. P. C. Provides: "Every decree for the payment of money, including a decree for the payment of money as the alternative to some other relief, may be executed by detention in the civil prison of the judgment- debtor, or by the attachment and sale of his property, or by the both."
19. From the discussion of the above provisions of C. P. C., in the absence of any reported case-law on the point, to my knowledge, nor has been cited any, I am inclined to hold the view that an order of costs passed under section 35, C. P. C. Is a part of the decree in relation to which it is passed, and in substance is a decree for money. The same order is executable as if ft is a decree for money, and the provisions of the Code relating to t the execution of decree for money shall be applicable to the execution of such orders of costs. The petitioner judgment---debtor being a debtor under the Ordinance is, therefore, immune from arrest or imprisonment in execution of the decrees for costs.
20. In the result, I accept the revision petition, set aside the orders of the two Courts below, and hold that the petitioner will be immune from arrest or imprisonment in the execution of the decree for costs filed by the decree-holder. Parties to bear their own costs.
21. Costs of suits PlaintiffDefendant Rs. a. p.Rs. a. p.
22. 1 Stamp for plaint Stamp for power 2 Do. For power Do. For petition 3 Do. For exhibits Pleader's fee 4 Pleader's fee on Rs. Subsistence for witnesses 5 Subsistence for witness.Service of process 6 Commissioner's fee Commissioner's fee 7 Service of process.
23. Total Total