' This is an execution application filed by the State Life Insurance Corporation of Pakistan, Decree- holder, against S. A. Aziz Rizvi, judgment-debtor for execution of the final decree dated 10-1-1982, passed by a learned Single Judge of the Court.
2. The office has raised objection as to the maintainability of this execution application in this Court for want of pecuniary jurisdiction.
3. On 24-5.1975, the decree-holder filed a mortgage suit, being Suit No, 411 of 1975, on the original side of this Court for recovery of a sum of Rs, 84,475.88 with interest from the date of the suit till realization and other charges and expenses.
4. On 5-3-1979, a preliminary decree was passed for payment of Rs, 63,300 with interest from 1-7- 1974 to 23-5-1975, at 8 per cent per annum with six monthly rests and further interest from 24-5- 1975, till realization at 10 per cent per annum.
5. On failure of the judgment-debtor to pay the amount due under the preliminary decree, a final decree was passed on 10-1-1982.
6. Thereafter, on 7-4-1983, the present execution application was filed claiming the following dues.
"7. Amount with interest. (i) Principal Amount. Rs, 63,300
(ii) Interest from 1-7-1974 to 23-5-1975 at 8% p.a. With six monthly by rests. Rs, 4,595.34.
(iii) Interest from 24-5-1975 to 23,14983 Amount of cost. Rs, 6,363.10.
Total Amount. Rs, 1,26,342.50. with future interest at 10% p. a. From 24-1-1983, till payment."
7.
The notice of execution application was issued to the judgment- debtor and on his behalf Mr. Aminuzzaman Advocate filed power but later on pleaded no instructions. Today nobody is present on behalf of the judgment-debtor. I have heard Mr. Nizam Ahmed learned counsel for the decree-holder.
8. The short question for consideration is 'whether this Court has' pecuniary jurisdiction to entertain the execution application? This question 4 has arisen because of certain amendments made in the Sind Civil Courts Ordinance, 1962, which may be stated. Upto 5-4-1981, the civil Courts had, jurisdiction to entertain suits and other proceedings upto the value of Rs, 50,000 when by the Sind Civil Courts (Amendment) Ordinance, 1981, (Ordinance VI of 1981), section 7 was amended so as to read as follows :- "7. Original jurisdiction of the Court of District Judge.- ' Subject to any law for the time being in force, the original jurisdiction of the Court of District Judge in civil suits and proceedings shall be without limit of the value thereof excepting in the Kara hi District where the original jurisdiction in civil suits and proceedings of the value exceeding one lac of rupees shall be exercised by the High Court.
9. Section 24 of the 1962 Ordinance was also amended by substituting the words 'one lac rupees' for 'fifty thousand rupees'.
10. Thereafter, by the Sind Civil Courts (Second Amendment) Ordinance, 1981, section 7 was further amended and it was inter alia provided as follows :- "2. In the Sind Civil Courts Ordinance, 1962 hereinafter referred to as the said Ordinance, in section 7, the full-stop at the end shall be replaced. By a colon and thereafter the following proviso shall be added : 'Provided that the Civil Suits and proceedings of the value not exceeding one lac of rupees in respect of Karachi District pending in the High Court immediately before the commencement of the Sind Civil Courts (Amendment) Ordinance, 1981 shall be disposed of by the High Court except the Suits and proceedings which, on coming into force of the aforementioned Amendment Ordinance. Stood transferred to the District Court and have already been decided by the said Court.'
3. In the said Ordinance, in section 18, in subsection (1), in clause (a), for the words 'twenty-five thousand rupees', the words 'fifty thousand rupees' shall be substituted."
11. Now, after this amendment, suits, and other proceedings of the value not exceeding one lac of rupees in respect of Karachi Districts have . To be filed in the District Court, Karachi. Therefore, the further question that arises in this case is, "what is the amount of the decree of which execution is being sought".
12. It appears that the office has raised objection because in the suit the claim was for Rs, 84,475.88 and the preliminary decree passed was for Rs, 63,300 with costs and interest. There is no doubt that both the amounts are below one lac of rupees but when the final decree was passed the decretal amount including costs and interest upto the date of passing of the final decree exceeded one lac of rupees. Therefore, the next question for consideration is 'whether it is the amount of the suit, or preliminary or the final decree which will determine the jurisdiction of this Court.
13. So far as the valuation of the suit is concerned it is irrelevant. The relevant consideration would be the amount awarded by the decree or the value of the property for which execution application is filed. In this regard Mr. Nizam Ahmed learned counsel for the decree-holder has relied on the following observation in the case of Kedar Nath Jai Prakash v. Chhajju Mal Summerchand (1) :- "10. With respect we agree with the view that the jurisdiction of the transferee Court to deal with an execution application would depend not upon the valuation of the suit in which the decree had been passed, or the amount of the original decree, but the actual amount under execution. It accordingly follows that the objection as to the jurisdiction of the Munsif of Ghaziabad was rightly overruled by the two Courts below."
14. The above observation would apply with full force to the present case although in this case the decree is not being sought to be executed by the transferee Court, but by the Court which passed it or by the Court by which it would be executable by operation of law in view of the amendment made in the Sind Civil Courts (Amendment) Ordinance, 1962.
15. However, the further question is 'whether it is the amount o value of property for which preliminary decree is passed or the amount or, value of the property under the Final decree'. It is settled that preliminar decree is not executable as such. I may, however, in support refer to Cr.
Karam Rabbani an /11 others v. The Central Exchange Bank Ltd , Lahore and 3 others (2). Which was cited by Mr. Nizam Ahmed. In this case it was held that a preliminary decree is not capable of execution and it is only the under rule 5 of Order XXXVI, C. P. C., that can be executed. In this case reliance was placed on a number of cases and it would be convenient if here also they are referred :- ' Bulk Bee and another v. Kaka Haji Muhammad Umar Saha and others (3), Ashfaa Hussain and others v. Gauri Sakai (4), Kunnish Naidu v. Chengama Naidu and others (5), Mania' v. Ram Narain (6), Jungli Lal and others v. Laddu Rain (7), Sat Parkash and another v. Baha! Rai ani another (8)
Madan Theatres Ltd. v, Dinshaw & Co. Bankers Ltd. (9), Ram Nath v. Deokinandan Krishna and others (10).
(2) PLD 1973 Lah. 695 (4) I L R 1917 All. 264 (6) AIR 1917 All. 429 (8) AIR 1931 All. 386 (10) AIR 1947 All.
83
(1) AIR 1962 All 596 (3) AIR 1926 Mad. 415 (5) AIR 1917 Mad. 844 (7) AIR 1919 Pat. 430 (9) AIR 1945 P C 152
16. In the case of Ram Nath (supra) Iqbal Ahmed, C. J., of Allahabad High Court examined the provisions of Order XXXIV, rule 5 and other provisions of the C. P. C., in great detail and it would be of advantage to quote a passage therefrom which reads as follows :- "It is obvious that no application for the execution of any decree can be entertained unless the executable decree exists. No preliminary decree for sale can be executed An application for the execution of a decree is an application in execution, whereas an application for the preparation of a final decree is an application in suit. We find it difficult to treat an application made in execution as one made in a suit. Order XXXIV, rule 5(3), Civil Procedure Code, 1908, provides that there should be an application for final decree by the plaintiff. The words 'in this behalf', in that rule are important and significant.
' The decree-holder's own conduct shows that he had not intended to treat the application in execution, dated 9th September, 1941, as one for the preparation of the final decree. What was the need of the second application, dated 24th January. 1942, if the application, dated 9th September, 1941, was sufficient for the preparation of a final decree under Order XXXIV, rule 5, Civil Procedure Code ? .. No, execution of the decree can take place on the application, dated 9th September, 1941, as no final decree in accordance with the preliminary decree of this Court existed on that date."
17. Reference to a passage from Madan Theatres Ltd. v. Dinshaw & Co. Bankers Ltd. Would also be of great advantage in this regard which reads as follows :- "But apart from the question whether the parties could not compromise a decree (as to which see 661 A 84), it has again and again been held in India that this rule only applies in execution, that execution does not begin until after a final order for sale has been passed and that, therefore, the rule has no application when the question is whether or not a final decree for sale should be passed. Their Lordships agreed with the Courts in India in this respect."
18. The matter can also be examined from another angle. Under Article 183 of the Limitation Act, 1908 read with section 48, C. P. C., a decree for sale of mortgage property could be executed within a period of 6 years. Now, the question is which is the date from which the period of 6 years is to be counted. In other words the question is whether it is the date of preliminary decree or the final decree. Now, it has been shown above that a preliminary decree passed under Order XXXIV, rule 4, C.P.C., is incapable of execution and, therefore, it is only the date of final decree from the date whereof the limitation would run. In this regard it may be E stated that even after the passing of the preliminary decree the trial of the suit continues till a final decree is passed. Moreover, any matter arising during the passing of preliminary decree and the final decree is considered to be antecedent to the final decree (See: Civil Procedure Cole IV Ed.,
139. By Ameer Raza and also Dharam Dun Dhawan v. Ram Lal Suri etc. (1), on which reliance has been placed by the learned author.
(1) AIR 1957 Pb. 161
19. I, therefore, hold that this execution is maintainable in this Court and, therefore, must be entertained.
Execution Application maintained.