' The facts giving rise to the registration of the above application are that during my inspection of the subordinate Courts at Khuzdar on 21st June, 1986, when I met the members of the Public to hear their grievances, Mst. Naz Bibi presented an application alleging therein, that a decree passed in her favour on 5th September, 1984 by the Qazi Jhalawan had not been executed in spite of expiry of considerable period, which was sent for execution to the Assistant Commissioner, Khuzdar. The above complaint was registered as above civil miscellaneous application. Apart from taking action on her complaint on the administrative side, I also framed the following question and ordered notices to Mr. Yaqub Khan Yousufzai, learned Advocate-General and Messrs Basharatullah and Muhammad Aslam Chishti, Advocates to assist the Court :- "The question, whether a Qazi can execute his own decree is a question of public importance and, therefore, in my view it may authoritatively be decided on judicial side.
"I would, therefore, issue notice to the learned Advocate-General and also to Messrs Muhammad Muqim Ansari, Basharatullah and Muhammad Aslam Chishti, Advocates to appear as amicus curiae and to assist the Court on the above point for 23-8-1986. The office is directed to send a copy of this order to the learned Advocate-General and to the above learned Advocates."
' In response to which, Mr. Yaqub Khan Yousufzai, learned Advocate-General as well as Messrs Basharatullah and Muhammad Aslam Chishti, Advocates submitted their arguments on the above-quoted question.
2. Before dilating upon their submissions, it may be appropriate to observe that in Baluchistan, there are four parallel laws for adjudication of civil disputes in their respective areas, namely. (1)
Dasturul Amal Diwani Kalat, 1952 (hereinafter referred to as the "Dastoor") which is applicable to the area which was known previously as Baluchistan States Union, (14 Baluchistan Civil Disputes (Shariat Application) Regulation, 1976 which is applicable to some tribal areas, (iii) Civil Procedure (Special Provisions) Ordinance, 1968, which is applicable to the areas specified in the first schedule to the said Ordinance and (iv) General Civil Laws, which are applicable to the areas known as "A" areas, which comprise of inter alia, Quetta City, Sub-Divisions Jhatpat and Usta Muhammad and Hub, etc. The present controversy is confined to the area where "Dastoor" is applicable. In order to understand the point in issue, it may be pertinent to point out that under the original "Dastoor"'
Naib-Tehsildars, Tehsildars, Nuzma and Deputy Commissioners had original jurisdiction to try the civil disputes to the extent of pecuniary limits given in section 20 of the same and, therefore, they were Courts for all intents and purposes for execution of a civil decree. The above position was altered by Ordinance No, 32 o 1984, namely, Dasturul Amal Diwani Riasat Kalat (Tarmeemi)
Ordinance, 1984 (hereinafter referred to as the "Ordinance No, 32 of 1984"), whereby the aforesaid section 20 was substituted and the powers to try civil disputes B were withdrawn from Naib- Tehsildars, Tehsildars, Nuzma and the Deputy Commissioners. In this view of the matter, they have ceased to act as a Court. It will not be also out of context to mention that by virtue of section 3 of Central Laws 1Statute Reform) Ordinance, 1960 (Ordinance No, XXI of 1960), inter alia, the provisions of the Code of Civil Procedure were made applicable to the Acceding States which had become the part of West Pakistan, i,e, including Kalat.
3. It was, therefore, submitted by Mr. Yaqub Khan Yousufzai, learned Advocate-General as well as Messrs Basharatullah and Muhammad Aslam Chishti, Advocates' that after the enforcement of the aforesaid Ordinance No, 32 of 1984, Naib-Tehsildars, Tehsildars, Nuzma and Deputy Commissioners had ceased to be a Court within the purview of section 38 of the Code of Civil Procedure and, therefore, they cannot execute a civil decree passed by a Qazi. In this regard, it may be stated that the practice obtaining in the area where "Dastoor" is applicable is that a civil decree passed by a Qazi is sent for execution to a Deputy Commissioner, Assistant C Commissioner or Tehsildar, which practice has judicial recognition, inter alia, in the form of a judgment of a Division Bench of the erstwhile High Court of West Pakistan in the case of Mst. Bibi Lal Bibi v. Mir Baluch Kivn and another
(1) and also in the recent case of Mir Shahbaz Khan v. Mir Ibrahim Khan and 73 others (2), which practice was also in consonance with the law, as Naib-Tehsildar, Tehsildar, Nuzma and Deputy Commissioner were Courts within the ambit of the Code of Civil Procedure., Messrs Basharatullah and Muhammad Aslam Chishti, Advocates have also referred to the following cases to highlight the legal position obtaining prior to the enforcement of Ordinance No, 32 of 1984 :-
(i) Dost Muhammad and another v. Rais S'atik and another PLD 1962 (W. P.) Quetta 82 in which, a Division Bench of the erstwhile High Court of West Pakistan had considered the effect of the Central Laws (Statute Reform) Ordinance, 1960 and observed as follows :- "Para. 13.
' Applying this principle to the case before us, it appears to us that the Dastur-ul-Amal Diwani, Kalat, stands repealed only to the extent of those of its provisions which correspond to the provisions of the Code of Civil Procedure, 1908, but those of its provisions which deal with other matters, not provided for in the Code of Civil Procedure, remain unaffected. Further, the jurisdiction of the {{FOOT NOTE}}
(1) PLD 1962 (W. P.) Quetta 28 (2) PLD 1986 Quetta 246 {{FOOT NOTE}} existing Courts which are functioning in the Kalat area under the Dastur-ul-Amal Diwani, Kalat, and the peculiar practices and procedures applicable to proceedings before them, which are not covered by the provisions of the Code of Civil Procedure, have been preserved.
(ii) Mir. Said Muhammad and ' another V. Mir Chakar and 6 others PLD 1973 Quetta 43. In the.
Above case, a Full Bench of the erstwhile High Court of Sind and Baluchistan while considering the effect of Central Laws (Statute Reform) Ordinance, 1960, inter alia held that since section 24 of "Dastoor" corresponds to section 100 of the Code of Civil Procedure And as such, it stands impliedly repealed.
(iii) Jia Ram v. Smt. Kundana Wanti and others PLD 1978 Quetta 91, in which, a Full Bench of this Court while construing section 11 of the "Dastoor" held that the Deputy Commissioner is not a principal civil Court of original jurisdiction for the purpose of section 372 of the Succession Act, 1925.
(iv) Mirza Khan v. Ch. Mohan Dass 1982 CLC 2258. In the above case, a Division Bench of this Court while construing sections 2 add 20 of the "Dastoor" held that the word "Court" used in section 2 means Courts specified in section 20 for certain specified purposes under the "Dastoor".
(v) Province of Baluchistan v. Ismail and others PLD 1983 Quetta 8. In the above case, a learned Single Judge of this Court while construing section 24 of the "Dastoor" and section 115 of the Code of Civil Procedure, held that the latter shall prevail over the former as the same is deemed to have been repealed.
(vi) Syed Qadir Dad and another v. Muhammad Afzal and 25 others PLD 1986 Quetta 179, in which, a learned Single Judge of this Court held that section 4 of the "Dastoor'' stands repealed and replaced by provisions of Court Fees Act, 1870 by virtue of section 4 of Ordinance XXI of 1960 and the court-fee payable will be under the latter Act.
4. The above cases cited, inter alia, indicate that it has been the consistent view of the erstwhile High Courts of West Pakistan, Sind and Baluchistan and of this. Court that the provisions of the Code of Civil Procedure have repealed the provisions of the "Dastoor" on the identical subjects and that the provisions of the Code of Civil Procedure are to prevail over the provisions of the "Dastoor", It is also evident from the above Quetta case of 982 CLC 2258 that Naib-Tehsildars, Tehsildars, Nuzmi and the Deputy Commissioners were acting as the Courts for the purpose of pecuniary jurisdiction to the extent mentioned in section 20 of the "Dastoor", However, the above ruling no longer reflects the correct position in view of the above Ordinance 32 of 1984, which has withdrawn the powers of the above Officers to adjudicate upon civil disputes to the extent of pecuniary jurisdiction mentioned in the above section 2Q of the "Dastoor".
5. It will not be out of context to refer to sections 37, 38 and 39 of the Code of Civil Procedure, which read as follows :- "37. Definition of Court which passed a decree.-The expression 'Court which passed a decree' or words to that effect, shall in relation to the execution of decrees unless there is anything repugnant in the subject or context, be deemed to include,-
(a) where the decree to be executed has been passed in the exercise of appellate jurisdiction, the Court of first instance, and
(b) where the Court of first instance has ceased to exist or to have jurisdiction to execute it, the Court which, if the suit wherein the decree was passed was instituted at the time of making the application for the execution of the decree, would have jurisdiction to try such suit."
"38 Courts by which decrees may be executed.-A decree may be executed either by the Court which passed it, or by the Court to which it is sent for execution."
"39 Transfer of decree.-(1) The Court which passed a decree may, on the application of the decree- holder, send it for execution to another Court,-
(a) If the person against whom the decree is passed actually and voluntarily resides or carries on business, or personally works for gain, within the local limits of the jurisdiction of such other Court, Or
(b) if such person has not property within the local limits of the jurisdiction of the Court which passed the decree sufficient to satisfy such decree and has property within the local limits of the jurisdiction of such other Court, or
(c) if the decree directs the sale or delivery of immovable property situate outside the local limits of the jurisdiction of the Court which passed it, or
(d) if the Court which passed the decree considers for any other reason, which it shall record in writing, that the decree should be executed by such other Court.
(2) The Court which passed a decree may of its own motion send it for execution to any subordinate Court of competent jurisdiction."
A plain reading of the above-quoted section 37 indicates that a decree passed by an Appellate Court is to be. Executed by the Court of first instance and if such a Court has ceased to exist, by the Court which has original jurisdiction at the time of filing of the execution application, whereas, section 38 provides execution of a decree by the Court which has passed the decree, or by the Court to which it has been transferred. Furthermore, section 39 contemplates the transfer of a decree by the Court ,which has passed the same to another Court upon an application filed by a decree-holder.
It is, therefore, evident that under the above-quoted section 38, a decree can be executed by a Court which has passed the decree. Since the provisions of the Code of Civil Procedure are applicable to the area covered by the "Dastoor", the above provisions of section 38 are attracted to, and hence, a Qazi who passes a decree is competent to entertain an execution application and to execute the decree or to cause its execution.
6. Mr. Muhammad Aslam Chishti, Advocate in order to reinforce his submission has pointed out that if I were to hold that a Tehsildafcan execute a civil decree even after the promulgation of Ordinance 32 of 1984 it will lead to unjust results, inasmuch as, there will be no appeal against an order passed by a Tehsildar as an executing Court in terms of section 104 of the Code of Civil Procedure, which provides an appeal against an order, inter alia, passed under section 47, though suit will be barred under rule 103, Order XXI, C. P. C. Whereas, Mr. Basharatullah, Advocate has invited my attention to the provisions of section 27 of the "Dastoor", which empowers this Court to issue instructions from time to time to enforce "Dastoor" completely and, therefore, it has been suggested that under the above section, this Court can specifically empower officers for the purpose of execution of the decrees for assisting Qazi, or the High Court can frame rules under the Code of Civil Procedure. Mr. Muhammad Aslam Chishti, Advocate has also invited my attention to the case of Falah-ul-Mornineen Trust v. V. P. Abdullah (1), wherein Muhammad Haleem, J. (as his Lordship then was, and now the Chief Justice of Pakistan) has held that apart from section 151 of the Code of Civil Procedure, the Court has also inherent power to take all steps to execute its own mandates and orders as this power flows from the jurisdiction itself. Reliance was placed on page 136 of Corpus Juris Secundum, Volume 21. On the basis of the above judgment, it was submitted by Mr. Muhammad Aslam Chishti, Advocate that the Qazi can seek assistance of any civil functionary for causing the execution of a decree passed by him.
7. I am, therefore, inclined to hold that after the promulgation of Ordinance 32 of 1984, Naib- Tehsildars, Tehsildars, Nuzma and Deputy Commissioners have ceased to be a Court within the ambit of sections 37 to 39 of the Code of Civil Procedure and, therefore, a decree passed by a Qazi or by any other civil Court cannot be transferred under the above / provisions of the Code of Civil Procedure for execution. I am further inclined to hold that a Qazi who passes a decree in an area where "Dastoor" is applicable, is competent to entertain an execution application and is also competent to invoke the assistance of Civil Administration including of an Assistant Commissioner, Tehsildar, Naib-Tehsildar, Levies and Police, etc. For the execution of such decree.
Before parting with the above discussion, I may record thanks for the valuable assistance rendered by Mr. Yaqub Khan Yousufzai, learned Advocate-General, and Messrs Basharatullah and Muhammad Aslam Chishti, Advocates who appeared as amicus curiae. The office will furnish a copy of this order to the Registrar of this Court, who will circulate the same among the Qazis functioning in the area where "Dastoor" is applicable with the instructions that they should directly entertain the execution applications and should seek assistance of the Civil Administration for causing the execution of the decrees.
8. With the above observations, the above civil miscellaneous application stands disposed of. {{FOOT NOTE}}
(1) PLD 1970 Kar. 179 {{FOOT NOTE}}