Briefly stated the facts giving rise to this petition under section 115 of the C.P.C. Are that on 2nd of June, 1980 Sardar Khan petitioner herein filed a suit for recovery of Rs.23,768 in the Court of Senior Civil Judge Sialkot against District Food Controller. In the plaint it was alleged that 99 bags of rice belonging to the petitioner were illegally taken into possession by the Police and despite the order passed by this Court in Writ Petition No.1447/1978. The rice was auctioned for Rs.19,000 though its market value was Rs.42,768. The petitioner claimed that he was entitled to reimburse to the extent of the loss suffered by him which amounted to Rs.23,768. On 1 of December, 1980 an application under Order I rule 10 C.P.C. Was filed by the petitioner for impleading the Province of Punjab through its Collector as a defendant in the suit. Despite service of notice issued in the said application respondent No.1 did not appear with the result that the application was allowed ex parte on 9th of March, 1981 and respondent No.1 was allowed to be impleaded as a party. The petitioner thereafter filed an amended plaint on which summons were issued to the defendants. On 12th of September, 1981 the defendant No.1 Province of Punjab did not appear despite service and was proceeded ex parte. The learned trial Court after recording the ex parte evidence decreed the suit against the respondents on 22nd of February, 1982.
It appears that an application for setting aside the ex parte decree was filed by respondent No.2 which was dismissed by the Senior Civil Judge on 21st of May, 1983, which led it to file an appeal before the District Judge Sialkot. On 8th of October, 1983, a statement was made by the petitioner that the ex parte decree as against the District Food Controller be set aside and he be permitted to withdraw the suit as against it. Acting on this statement the District Judge dismissed the suit of the petitioner as against the District Food Controller. Since decree as against the respondent No.1st Province of Punjab still held the field, the petitioner sought its execution against the Province. During the course of these execution proceedings objections were raised by the respondent No.1 claiming that the ex parte decree was a nullity in the eyes of law as the trial Court exceeded its jurisdiction in proceedings ex parte against the petitioner in violation of the provision of section 80 of the C.P.C.
These objections were rejected by the trial Court. However, an appeal filed by respondent No.1 succeeded before the District Judge Sialkot who held the ex pane decree to be a nullity and directed that the suit be disposed of afresh by the trial Court. This order of the District Judge has been assailed by the petitioner by filing this civil revision.
2. I have heard the learned Additional Advocate-General appearing on behalf of respondent No.1 and petitioner who is present in person and has argued his own case. It has been contended by the petitioner, that since- the ex parte decree dated 22nd of February, 1982 was not challenged in any appeal by the respondents nor any application for setting aside had been filed by the respondents, the same had attained finality and it could not be set at naught by the executing Court which could not have gone behind the decree.
The learned Assistant Advocate-General on the other hand has argued that since the decree was in violation of mandatory provisions of section 80 of the C.P.C. It was nullity and executing Court could refuse to enforce it.
3. As already mentioned, the Province of Punjab respondent No.1 was for the first time impleaded as defendant in suit in the amended plaint filed on 19th of April, 1981. From a perusal of the summons, it is evident that this respondent, was served on 22nd of June, 1981 when the summons were delivered in the office of Collector Sialkot for the next date of hearing i.e. 12th of September, 1981. On this date the trial Court proceeded ex parte against respondent though a period of 90 days had not expired. According to Proviso of section 80 if the suit is instituted, without a notice having been served upon the Government in terms of the said section, the Court is bound to allow a period not less than three months to it to submit its written statement. Admittedly, in the present case this period of three months was not allowed to the Government for filing the written statement. This Court, has already in the case of Islamic Republic of Pakistan v. Babar and Company 1984 CLC 1535 held that the proviso being mandatory, the Court cannot proceed ex parte against the Government before the expiry of a period of 90 days and the ex parte decree passed on such proceedings was clearly without jurisdiction. Similar view was taken in Government of Punjab through Collector Gujranwala v. Shah Muhammad PLD 1982 Lah.115. It-thus becomes clear that the ex parte proceedings taken within 90 days of the date of service and the A consequent decree was void and without jurisdiction. It was submitted by the petitioner that he had served a notice under section 80 of C.P.C. Upon the respondents. However, the plaint does not contain any such statement. Both. Subsections (1) as also (2) require that not only notice should be served upon the overnment but the plaint should also contain a statement to that effect. (Farid Sons Limited v. The Federation of Pakistan PLD 1959 Kar. 568 refers) wherein it was held that in the absence of any statement in the plaint, it cannot be said that the provisions of section 80 have been complied with.
5. The other contention raised in support of this revision is untenable. Though it is correct that en executing Court cannot go behind the decree or refuse to execute it but it is well recognised exception to the said rule that in B cases where the decree is void.Or without jurisdiction, the executing Court can refuse to enforce it. Section 47 of the C.P.C. Empowers the executing Court to decide all questions relating to the executibility of the decree.
For the foregoing reasons this revision has no force and is dismissed. The parties are directed to appear before the Senior Civil Judge on 7th of February, 1989.
I have noticed that the suit was filed by the petitioner as far back as 2nd of June, 1980. In these circumstances, I direct that the Senior Civil Judge shall dispose of the suit by 7th of April, 1989, if necessary by holding day-to-day proceedings. The parties shall bear their own costs.