1. ' SARDAR SAID MUHAMMAD KHAN, C.J.---This appeal, by leave has been directed against the order of the High Court dated 17-7-1993, whereby the appeal filed by the appellant, herein, was dismissed and the order passed by the executing Court was upheld.
2. ' The brief facts resulting in the present appeal are that appellant, herein, and respondent entered into an agreement on 23-11-1963 whereby the forest described as compartments 10 (b) part and 12 part of Bandi Ashkot were leased to respondent. According to the terms of the agreement, the respondent had to extract timber from the aforesaid compartments during the period fixed in the lease agreement and 'was entitled to fell the standing trees and extract timber on payment of security at the rate of Rs,2 per cft. As the leased forest happened to be adjacent to the cease-fire line, there was danger of interruption by Indian Army and, thus, it was stipulated in the agreement that the respondent should extract timber at his own risk, and the Government would not be responsible for any loss which might be suffered by him due to any intervention of the Indian Army.
3. The period of lease was to commence from 23-11-1963, the date of the agreement, till the expiry of period of three years. The agreement contained an arbitration clause which stipulated that in case of dispute between the parties, the matter would be referred to the Chief Conservator of Forests who would resolve the dispute as an arbitrator. When the respondent started the work in the leased area and extracted some timber, there was intervention by the Indian Army as a result of which some casualties were caused and the Government-appellant was obliged to revoke the said agreement. Thereafter, the aforesaid agreement was substituted by another agreement dated 4- 4-1966 which stipulated that a certain dispute described in it would be decided by Mirza Nazir Hussain, the then Deputy Commissioner of Mirpur as an arbitrator. Consequently, the points which according to the agreement were to be resolved by Mirza Nazir Hussain were referred to him.
4. Although according to the agreement, the award was to be made by the arbitrator within a period of two months, reckoned from the date of reference, yet the arbitrator could not do the needful within stipulated period and made the award on 16-11-1966. Thereafter, the award was filed in the High Court for making the same rule of the Court; some objections were filed to the award and after hearing the parties the award was amended only to the extent that the interest due to the respondent on the price of the timber would not be paid to him; the rest of the award was made rule of the Court and a decree was passed in favour of the respondent. The respondent filed an Intra-Court Appeal before a Division Bench of the High Court but his appeal was dismissed vide the judgment of the High Court dated 29-3-1983. Thereafter the respondent preferred a Petition for Leave to Appeal to the Supreme Court but it was also dismissed for non-prosecution. It may be stated that the respondent filed an application for execution of the decree on 25-7-1978 but it remained pending in the Court as the parties continued litigation about the award, first in the High Court and thereafter in the Supreme Court. However, on 4-1-1984, the executing Court directed the respondent-applicant to file `Fard-e-Sabeel which he accordingly did on 28-3-1984. A notice was issued to the appellant, mherein, as to way the decree should not be executed. On 29-44984, the Court passed an order to the effect that as the compartments Nos.10(b) part and 12 part were allotted to the respondent in pursuance of the lease agreement but he also sought attachment of compartments Nos.30, 31 and 32 from Sharda Division, it was desirable to hear arguments before passing any order. After hearing the arguments of the counsel for the parties, the executing Court ordered the attachment of compartments Nos. 10(b) part and 12 part, the forest which was initially leased to the respondent. However there was no reference to compartments Nos.30, 31 and 32 in the relevant order. On 14-10-1985, the respondent filed an application in the executing Court alleging that the judgment-debtor was guilty of disobeying the order of the Court and prayed that he should be proceeded under law. A notice was issued to the judgment-debtor to which he filed objections wherein it was contended that respondent-applicant was extracting the timber in pursuance of the decree and order of the Court and no obstruction was caused to him by the appellant judgment- debtor. However, the executing Court passed an order on 2-11-1985 and observed that the decree-holder would be entitled to take away the timber after felling the trees. A review petition was filed against the said order of the executing Court by the appellant-judgment- debtor, which was contested by the respondent. The grouse of the appellant was that according to the terms of the award, the respondent could extract timber from the trees which had already been cut by him and were lying on the eastern side of the cease-fire line; and that he was not competent to fell more trees from the leased forest. The review petition was dismissed by the executing Court vide its order dated 15-1-1986. A revision petition was filed against the aforesaid order of the executing Court but the same was also dismissed by the High Court on technical ground that as the scope of review petition was limited, the order of the executing Court cannot be interfered in exercise of the provisional jurisdiction. An appeal, by leave, was filed to this Court which was accepted in terms that the respondent could only extract timber which was lying in compartments Nos.10(b) part and 12 part and he was not entitled to fell standing trees for the satisfaction of the decree. The High Court while dismissing the revision petition also referred casually to compartments Nos.30, 31 and 32 which were included in the Fard-e-Sabeel' as alternative choice by the respondent-decree-holder. Thus, this Court observed while disposing of the appeal that the question of the attachment of compartments Nos.30, 31 and 32 as an alternate choice in view of clause 10 of the agreement was not subject of dispute before the executing Court, it could not be made subject of arguments in the appeal before this Court. Consequently, this Court confined its finding to the extent as to whether the decree-holder was entitled to fell more trees from the leased area or he can only take away the timber of the trees which had already been fallen in the two leased compartments. After the judgment of this Court, dated 11-8-1990 when the executing Court proceeded with the execution proceedings, the respondent decree- holder filed an application before the said Court on 24-1-1991 and prayed for the attachment of compartments Nos.30, 31 and 32 situated in Sharda Division; a specific reference was made in the application to the observations of this Court made in its judgment dated 11-8-1990. Objections were filed to the aforesaid application wherein it was contended that in view of the lease agreement dated 4-4-1966, the award made, decree passed and the order of the executing Court dated 15-5- 1984, the aforesaid compartments cannot legally be attached; because the decree-holder could only satisfy the decree out of the timber which was already lying cut in compartments Nos.10(b) part and 12 part. It was also contended that the matter is hit by the principle of constructive res judicata and no attachment can be made in pursuance of clause 10 of the agreement dated 4-4- 1966 because it was pre-decree matter. It was also maintained that clause 10 of the agreement has not been incorporated either in award or in decree which was passed by the Court and, thus, it being a pre-decree matter, cannot be pressed into service for making attachment of aforesaid three compartments. The executing Court, in its order dated 12-1-1992, expressed the view that the subject-matter incorporated in clause 10 of the agreement is 'pre-decretal' matter and, thus, it cannot be considered. However, it held that the matter was not hit by the principle of res judicata because no findings were given previously by the executing Court with regard to the attachment of compartments Nos.30, 31 and 32 of Sharda Division. Consequently, the executing Court ordered the attachment of the aforesaid three compartments and restrained the appellant-Government from cutting, exporting or leasing out any part of the said compartments till the satisfaction of the decree in favour of the respondent. It may be stated here that it has not been recorded by the trial Court that if clause 10, which was relied upon by the respondent in his application for attachment of the new compartments, was a pre-decrial matter and could not be considered, how the said compartments were being attached and under what law. Consequently, the appellant, herein, filed an appeal to the High Court. The High Court upheld the impugned order observing that clause 10 of the agreement can be pressed into service for the attachment of compartments Nos.30, 31 and 32; it was observed by the High Court that as clause 10 of the agreement dated 4-4-1966 was not subject of the award before arbitrator and became relevant only at the stage of execution proceedings, the said clause can be resorted to at the stage of execution proceedings. In para. 23 of its judgment, the High Court expressed the view that although the executing Court did not mention it specifically in its order yet it appeared that the said compartments were attached under clause 10 of the agreement. The High Court remanded the case to the executing Court with the observation that it was for the executing Court to see as to whether the condition precedent for resorting to clause 10 of the agreement existed or not.
5. ' The learned counsel for the respondent, Ch. Fazal-e-Hussain, Advocate, has raised a preliminary objection that as the impugned order of the High Court is a 'remand order', the petition for leave to appeal should have been dismissed. The learned counsel for the respondent argued that petitions for leave to appeal against 'remand orders' have been refused by the Supreme Court of Pakistan and, thus, there is no reason as to why the view taken should not be followed in the instant case; especially so when provisions of subsection (12) of section 42 of the Azad Jammu and Kashmir Interim Constitution Act, 1974 are identical to the corresponding provisions contained in 1973 Constitution of Pakistan. He has cited following authorities in support of his contention: ' In case reported as Saifur Rahman v. A.H. Khan Niazi 1971 SCMR 279, the appeals were dismissed and the judgments of the High Court were upheld observing that as the question to be resolved were to be decided on evidence, the High Court was legally correct in remanding the case to the concerned Tribunal. In this case, the question of granting or refusing the leave was not involved and, thus, this authority has no relevancy to the case in hand. In Siddique Khan v. Abdul Shakur Khan (PLD 1984 SC 289), two appeals were filed through special leave of the Supreme Court in a preemption suit. At page 299 of the report of the said judgment, the Supreme Court, has observed that as the leave was granted only to examine legal questions, it was not necessary to give details of other facts because if the appeal succeeded on the law points, the case would be remanded to the appropriate forum for decision on merits where all questions can be raised. Obviously, the observations were made by the Supreme Court while deciding. The appeal. It has not been held by the Court that the leave to file appeal in case of a remand order should be refused in all cases.
6. ' In case reported as Rahimtullah v. District Judge and Settlement Commissioner, Sukkar (1968 SCMR 337), it was held that as the case was remanded by the High Court to the Settlement authorities, the point agitated in petition for leave to appeal can be raised before the Settlement Authorities and leave was refused. Obviously, in the instant case the question as to whether clause 10 of the agreement dated 4-4-1966 is attracted or not has been decided by the High Court by upholding the order of the executing Court. Thus, it cannot be said that the executing Court can re- open the question so far as the question of resorting to clause 10 of the agreement is concerned.
7. Therefore, this authority has also no relevancy to the present case.
8. ' In Sardar Muhammad Ibrahim Khan v. Azad Jammu and Kashmir Government (PLD 1990 SC (AJ&K) 23), it was observed that under section 42(12) of the Azad Jammu and Kashmir Interim Constitution Act, it is in the discretion of the Supreme Court to allow leave to appeal and an order is not necessarily to be final. It was further observed that under aforesaid Constitutional provisions, the powers which vest in the Supreme Court are of residuary nature and are exercisable in the interest of justice.
9. ' The learned counsel for the respondent has also referred to the following unreported cases of the Supreme Court of Pakistan:-
(1) Malik Muhammad Tufail v. Chairman, Evacuee Property Trust Board, Lahore (Civil Petition No,1050-L/1992, decided on 17-1-1994);
(2) Mst. Fatima Bi v. Additional Secretary, Incharge, Ministry of Religious Affairs and Minority Affairs, Islamabad (Civil Petition No,1054-L/1992, decided on 17-1-1994); and
(3) Sanaullah v. Chairman, Evacuee Trust Property Board, Lahore (C.P.L.A. No,1-L of 1993, decided on 16-3-1994); ' A perusal of the judgments in abovementioned cases shows that those are not relevant to the case in hand and are distinguishable. In none of the abovementioned cases it has been held that leave could not be granted against a remand order even if the High Court decides a question of law. The facts of the abovementioned cases are that the writ petitions by the High Court were accepted and the cases were remanded to the concerned authorities as the questions of fact were involved which could be decided only after taking evidence. The Supreme Court affirmed the view taken by the High Court and leave was refused. In the instant case, as has been indicated above, the facts are different because the High Court itself has decided important questions of law.
10. Thus, the contention of the learned counsel for the respondent that leave cannot be granted against a remand order in all cases even if the High Court decides the material question of law one way or the other is not tenable and is hereby repelled. This Court has wide powers under subsection (12) of section 42 of the Azad Jammu and Kashmir Interim Constitution Act to grant petition for leave to appeal and no embargo has been placed on the powers of the Court to grant leave to file appeal. Even otherwise, in case reported as Faiz Ali Shah v. The State (PLD 1989 SC (AJ&K) 61), it was held that once leave is granted, the appeal is to be decided on merits. The respondent did not choose to oppose the granting of leave at proper stage and now he cannot be heard saying that appeal entails dismissal on the sole ground that leave should not have been granted against the impugned judgment of the High Court. Thus, there is no substance in the preliminary objection and the same is hereby repelled.
11. ' Dealing with the merits of the case, it has been contended by the learned counsel for the appellant that the High Court has committed an error in holding that the executing Court can resort to clause 10 of the agreement dated 4-4-1966 in ordering the attachment of compartments Nos.30, 31 and 32, Sharda Division. He has maintained that compartments Nos.10(b) part and 12 part were the subject-matter of the lease; the award was made and the decree was passed by the Court regarding the timber which was lying in the aforesaid compartments; the award and the decree do not contain any stipulation to clause 10 of the said agreement or to compartments Nos.30, 31 and 32. Even the initial execution application contains the prayer that the aforesaid compartments may be attached. It was only in Tard-e-Sabeel' filed on the direction of the Court that the aforesaid three compartments were mentioned as alternative choice; even in that application the respondent sought the satisfaction of the decree out of compartments 10(b) part and 12 part in the first instance. The learned counsel has further argued that although the appellant did not file objections to the execution application, yet that is not fatal because the original application did not refer to the aforesaid three compartments. It was only in the Tard-e-Sabeel', subsequently filed that the aforesaid three compartments were mentioned as alternative choice to the compartments 10(b) part and 12 part. The learned counsel maintained, be as it may, that the executing Court declined to attach these three compartments after hearing the arguments of the counsel for the parties and attached only compartments Nos.10(b) part and 12 part. Thus, the learned counsel for the appellant submitted that as the appellant did not go up in revision against the order of the executing Court dated 15-5-1984, he is not legally competent to seek the attachment of the aforesaid three compartments, because the matter is hit by the principle of res judicata. The learned counsel for the appellant has relied on the following authorities in support of his contention: ' In Mohanlal Goenka v. Benoy Kishna Mukherjee (AIR 1953 SC 65), it was observed that as the objection regarding the jurisdiction of executing Court was not raised previously, the same cannot be pressed into service afterwards as having been hit by the principle of constructive res judicata.
12. It was further opined that a previous decision to the effect that the matter did not fall within the competence of the executing Court even though erroneous is binding upon the parties.
13. ' In Baijnath Prasad Sah v. Remphal Sahni (AIR 1982 Pat. 72), it has been held that as the plea that certain statutory provisions made the transaction void, was not raised by the party at the proper stage, the same was hit by the principle of constructive res judicata and cannot be raised afterwards.
14. ' In Simhadri Sahu v. Balaji Padhi (AIR 1955 Orissa 81), it was held that where the petition of the judgment-debtor is dismissed for his default in presence of the decree-holder, subsequent petition on the same ground was barred by the principle of res judicata in view of explanation 5 to section 11 of the Code of Civil Procedure.
15. ' In Nanak Chand-Daulat Ram v. Boota Singh (AIR 1929 Lah. 470), it was held that a second application of objection to the attachment to the executing Court was not available when the first application was dismissed, even though the objection to the attachment in the second application was different from the one mentioned in the first application.
16. ' In Maharajadhiraj Sir Rameshwar Singh Bahadur v. Hitendra Singh (AIR 1924 PC 202), it was observed that a decision in an interlocutory order operates as res judicata in subsequent stages of the same proceedings. Where a decree-holder consents to appointment of a receiver of judgment-debtor of a property, he is not competent subsequently to pray for the discharge of the receiver in view of the provisions contained uncle; section 11 of the Code of Civil Procedure.
17. ' In Adaikappa Chettiar v. Natesan Chettiar (AIR 1931 Mad. 381), it was held that the doctrine of res judicata applies to the execution proceedings when the person sought to be bound had notice of the point previously decided and had opportunity to contend against it.
18. ' In case reported as Dhirendra Nath Datta Roy v. Sudhindra Chandra Chakraborti (PLD 1959 Dacca 551), it was held that ordinarily a judgment-debtor cannot raise fresh objections not raised at the time of hearing of application under Order XXI, Rule 11, C.P.C., in view of the principle of constructive res judicata.
19. ' In Khialdas v. Mahraj Gopi Krishin (PLD 1969 Kar. 646), it was observed that the application filed on some facts if not relied upon in earlier application would be hit by the principle of res judicata and, thus, the second application is not competent.
20. ' The learned counsel for the appellant has further submitted that clause 10 of the agreement dated 4-4-1966 was neither the subject-matter of the award nor decree passed in pursuance of the award and as such this cannot be pressed into service for seeking the attachment of the abovementioned disputed compartments. He has argued that a pre-decree matter, whether an agreement as a whole or one or more clauses of an agreement on which no award was given or decree was passed, cannot be resorted to in the execution proceedings. The learned counsel has further argued that it is correct that clause 10 of the agreement could not be the subject-matter of arbitration in view of the agreement dated 4-4-1966 but all the same the respondent could get it incorporated in the decree when the award was being made the rule of the Court. He strenuously argued that in any case an agreement entered into by the parties before the award or the decree cannot be relied upon in execution proceedings. The learned counsel has maintained that the executing Court despite holding that clause 10 of the agreement dated 4-4-1966 was a pre-decree matter and cannot be considered to attach the disputed three compartments and the High Court has held that the attachment by the executing Court was made under clause 10 of the agreement.
21. He has submitted that the High Court has incorrectly held that as the decree is ambiguous, the agreement and award can be looked into for ascertaining the terms of the decree. He has maintained that the High Court gave no other reason as to how a pre-decree matter can be pressed into service at the stage of execution proceedings. The learned counsel has argued that in the instant case there is no question of ambiguity in the decree because clause 10 of the agreement was neither the subject of award nor it finds any reference in the decree. Therefore, the High Court was not justified to uphold the order of the executing Court on the ground that the question of clause 10 of the agreement could only be pressed into service in execution proceedings and, thus, it was not necessary to get it incorporated in the decree. The learned counsel has relied on the following authorities in support of his contention: ' In Dilsukh Rai v. Lachhman Das (AIR 1927 Lah. 894(2)), it was held that executing Court has no power to go beyond the terms of the decree and, thus, any previous agreement regarding the mode of execution of decree cannot be taken into consideration.
22. ' In Life Insurance Corporation of India v. Sayanta Kumar Roy (AIR 1963 Cal. 416), it was held that as the definite rate of interest which was to be paid to the decree-holder, was not stated in the decree by the subordinate Judge which passed the preliminary decree, it would be deemed that decree is silent on the point in terms of section 34(2) of C.P.C. And the subsequent interest was disallowed.
23. ' In case reported as Thirugnanavalli Ammal v. P. Venugopala Pilai (AIR 1940 Mad. 29), it was held that where a decree was silent with respect to the payment of further interest, from the date of decree to the date of payment, the Court must be deemed to have refused the interest. It was further observed that even if decree-holder ought to have had further interest granted to him, and it was not done intentionally or oversight, the Court cannot rectify the omission in view of section 34(2), C.P.C.
24. ' In State of U.P. v. Reishma Devi (AIR 1974 All. 257), it was observed that where the point was neither taken by way of objection to the award nor argued before the Court, the same cannot be urged in appeal against the decree passed on the basis of award. It was further observed that in view of section 34(2) of C.P.C. The awarding of future interest is in the discretion of the Court and if no definite order has been passed by the Court about the interest, it would be deemed that the same was not awarded.
25. ' In Krishna Raj Trading Corporation v. Ram Saran Dass and Brothers (AIR 1962 All. 374), it was observed that executing Court cannot go beyond the decree. Thus, a pre-decree agreement affecting the excitability of the decree in view of the terms of agreement, cannot be considered by the executing Court. It was further observed that the executing Court has no jurisdiction to say that the decree should have been passed in a different way from the one in which the same was actually passed. It was further opined that if a decree is clear and unconditional, the executing Court cannot make the decree conditional or hold that it was not intended to be executed in certain cases because an agreement arrived at before the decree was passed. It was also observed that as the concerned party failed to put forward the agreement at the time when the decree was being passed, the judgment-debtor could only blame himself. And was no longer entitled to press his objection on the agreement. (Underlining is ours).
26. ' In case reported as Robet Hercules Skinner v. R.M. Skinner (AIR 1937 Lah. 537), it was observed that a pre-decree compromise cannot be pleaded as bar in execution proceedings. It was opined that the executing Court can go into matter arising after decree but not into pre-decree agreement.
27. However, a separate suit for a pre-decree compromise is maintainable. (Underlining is ours).
28. ' In Gudimalla Satagopacharyulu v. Tatta Sri Rama Narasimham (AIR 1950 Mad. 608), it was observed that the executing Court cannot enquire as to the truth or otherwise of a pre-decretal agreement. Satisfaction of which was nothing to do at all with the execution of decree. (Underlining is ours.).
29. ' In Padmalochan Panda v. State of Orissa (AIR 1975 Orissa 239), the facts were that an award passed by the Arbitrator was to be worked out for quantification by the Land Acquisition Officer. It was observed that if a party was aggrieved of the quantification made, the proper course, for such a party was (i) to file writ petition for directing the Land Acquisition Officer to act in accordance with the direction given by the arbitrator; and (ii) to approach the arbitrator and get an order from him that the calculation made by the Land Acquisition Officer was in direct contravention of his order but as it was not done, the higher claim cannot be allowed by the executing Court when there was no such award.
30. ' The learned counsel for the respondent controverted the contention of the learned counsel for the appellant. He has maintained that there is no question of res judicata in the instant case. He has maintained that no objections were filed to the execution application by the appellant. However, he conceded that when Pard-e-Sabeer was submitted by the respondent, the arguments were heard by the executing Court and only compartments Nos.10(b) part and 12 part were attached but he has maintained that there is no mention whatsoever in the order of the executing Court dated 15- 5-1984 that it declined to attach compartments Nos.30, 31 and 32 for any legal reason. The learned counsel maintained that even otherwise these compartments were mentioned in Pard-e-Sabeel' as alternative choice; the prayer of the respondent was that as in first choice, the compartments Nos.10(b) part and 12 part should be attached which were accordingly done by the executing Court. Thus, according to the learned counsel for the respondent, that matter having been not finally adjudicated upon by the trial Court, the principle of res judicata is not attracted in the instant case.
31. ' So far as the arguments of the learned counsel for the appellant regarding pre-decree matter were concerned, the learned counsel has contended that clause 10 of the agreement dated 4-4- 1966 was relevant only at the stage of execution; thus, clause 10 of the agreement could not be made subject-matter of the award nor it was necessary for the respondent to get it incorporated in the decree-sheet. The learned counsel for the respondent was confronted with the situation that even if it is assumed for the sake of arguments that clause 10 of the agreement can be pressed into service in the execution proceedings that could be done only if it is shown that the appellant has obstructed the removal of the timber or in any way offered hindrance to the removal of the timber from the leased compartments, the learned counsel submitted that the appellant has hindered the execution of the decree by indirect and direct means and, thus, clause 10 of the agreement can rightly be pressed into service for the attachment of the aforesaid compartments.
32. He has also argued that the aforesaid compartments shall remain attached only till the decree is satisfied by the appellant. The learned counsel submitted that it was not necessary to get the said clause incorporated in the decree and it can be availed of by the respondent independent of the award or the decree' passed in pursuance of the same. The learned counsel has submitted the following authorities in support of his contention: ' Pakistan v. A.P. Hassumani (PLD 1962 SC 409). This was a case arising out of writ petition which pertains to the terms and conditions of service.
33. ' In Manickam Chettiar v. Income-tax Officer, Madura (AIR 1938 Mad. 360), where in execution proceedings of money decree against a debtor, his property was sold and arrears of income-tax were due to the debtor, it was held that Crown has priority in respect of this debt and the Court, under its inherent powers, could order the payment of the Crown debt to the Government on the application of Income Tax Officer and it was not necessary to first exhaust the remedy under section 46 of the Income Tax Act.
34. ' In case reported as T.R. Ramaswa mi Aiyangar v. Official Receiver of Coimbatore (AIR 1926 Mad.
35. 672), the scope of section 53 of the Provincial Insolvency Act was discussed. It was observed that alienee paying off prior debts of alienor will stand in shoes of the creditor to the extent of amount paid. This authority has no relevancy to the proposition involved in the present case.
36. ' In Ragunath Das v. Sundar Das Khetri (AIR 1914 PC 129), the provisions contained in sections 248, 32 and 372 of Code of Civil Procedure of 1882 were under discussion.
37. ' In case reported as Manager, Jammu and Kashmir, State Property in Pakistan v. Khuda Yar (PLD 1975 SC 678), the scope of review petition under section 145, Code of Civil Procedure, and the word 'hearing' appearing in Order 41, rule 17 was subject-matter of the discussion. The dispute in the case related to the immovable property.
38. ' In Brig. Muhammad Aslam Khan v. Azad Government of the State of Jammu and Kashmir PLD 1973 Azad J&K 62, the question of issuing the temporary injunction in the case out of which the present proceedings have arisen was under consideration. The Government was restrained from alienating the timber till the decision of the proceedings before the Court.
39. ' In case reported as The Rawalpindi Central Cooperative Bank Ltd., Rawalpindi v. Raja Muhammad Riaz Khan PLD 1966 Lah. 912, it was directed that first the decretal amount should be satisfied out of the goods which were pledged. It was observed that the decree-holder cannot be taken out of attachment of other property of judgment-debtor. The judgment-debtor filed a petition for refund of the amount of security which was wrongly adjusted towards the decretal amount without first selling of goods which were pledged. It was held that the judgment-debtor was entitled to refund of amount of security deposited.
40. ' In Brig. Muhammad Aslam Khan v. Azad Government of the State of Jammu and Kashmir PLD 1972 Azad J&K 80, proceedings are in the present case wherein it was observed that temporary injunction can be granted on the basis of award notwithstanding the fact that the decree was not passed on the basis of award.
41. ' In Azad Government of the State of Jammu and Kashmir v. Brig. Muhammad Aslam Khan PLD 1981 Azad J&K 71, proceedings had arisen in the present case. It was observed that weight of the judicial opinion has always been in favour of non-interference in the findings of arbitrator on technical grounds. It was further observed that arbitrator was not bound by the technicalities of law.
42. ' It is evident from the cases cited by the learned counsel for the respondent that they are not relevant to the proposition involved in the case, i,e,, whether the matter is hit by the principle of res judicata or clause 10 of the agreement can be pressed into service by execution proceedings despite the fact that it was pre-decree matter.
43. ' We have given our due consideration to the arguments advanced at the Bar. It may be stated that this Court in its judgment dated 11-8-1990, left the application of clause 10 open because it was opined that as the same matter was not agitated in the previous proceedings in the trial Court, the same cannot be made subject of arguments before this Court. The following observations were made in that regard:--- "The next question which needs determination is as to whether clause 10 of the agreement dated 4-4-1966 has been pressed into service in the executing proceedings. It has been already pointed out that this aspect of the case has not been dealt with by any of the Courts below. Thus, the same cannot be permitted to agitate at this stage. However, irrespective of the fact as to whether the said clause can be resorted to in the execution proceedings, the same can possibly be relied upon if first it is shown that the Government did not allow the respondent to extract the timber from the eastern side of cease-fire line without any fault on the part of the respondent. This is a question of fact; had the respondent raised it before the executing Court, it would have determined the same.
44. The next question which would fall for determination is as to whether the provisions of clause 10 of the agreement can be pressed into service in execution proceedings when the same were neither made the subject of reference to the Arbitrator nor it finds place in the award or in decree passed by the High Court. The {{URDU TEXT}} shows that the first choice of the respondent was for the satisfaction of the decree out of compartments 10(b) part and 12. Had it been the case of the respondent that he was entitled to satisfy decree by felling the trees from compartments 30, 31 and 32 as the Government did not allow him the extraction from the compartment 10(b) part and 12 as his first choice. Because in case of eventuality stipulated under clause 10 of the agreement, if at all the said clause can be resorted to, the decree would be satisfied not from the aforesaid two compartments but only from any other workable forest of Keran Division. It has not been averred in application for execution that the decree-holder was entitled to exercise option of some other forest because he was not allowed to extract the timber from compartments 10(b) part and 12."
45. ' It has already been stated that although the executing Court heard the arguments before passing the order dated 15-5-1984 but the said order does not make any reference to the disputed compartments Nos.30, 31 and 32, muchless gave any finding as to why the same were not attached. Even otherwise in the Fard-e-Sabeel' these compartments were mentioned as an alternative choice. Thus, if the Court attached compartments Nos.10(b) part and 12 part as first choice of the respondents according to Pard-e-Sabea, it cannot be said that mere mentioning of the compartments 30, 31 and 32 in Pard-e-Sabeer would debar the appellant to seek the attachment of the same in view of the principle of res judicata. There is no question of constructive res judicata also on the ground that the respondent ought to have mentioned the aforesaid compartments in the execution application itself and not in the Parde-Sabeer; Pard-e-Sabeel' is a part of the execution application and if respondent has prayed for the attachment of the aforesaid three compartments as alternative choice, it cannot be said that the matter is hit by the principle of A constructive res judicata in view of the provisions contained in section 11 of the Code of Civil Procedure. The authorities cited by the learned counsel for the appellant on the point of res judicata are distinguishable as indicated above and, thus, we are of the considered view that the principle of res judicata is not attracted in the case.
46. ' Coming to the question of pre-decree matter, it may be stated that a pre-decree matter cannot be pressed into service in the execution proceedings until and unless the same is incorporated in the decree. The High Court has observed that in case of an ambiguous decree, the award and other relevant documents can be looked into. The High Court has also made a reference to the observation of this Court made in its judgment dated 11-8-1990. It may be stated that in the instant case the learned Single Judge in the High Court while making the award rule of the Court merely mentioned that 'the award is made the rule of the Court'. The decree-sheet itself does not show as to what were the contents of award itself. It was in this context that this Court made aforesaid observations in its judgment dated 11-8-1990. Thus, the observation made by this Court does not apply to a case in which the relevant point is not only missing in the decree-sheet but also does not find place in the award; a case where the point is neither covered hi the award nor the same is incorporated in decree-sheet, that cannot be read in the award or decree. Thus, the High Court has committed an error in observing that in view of the aforesaid observation of this Court clause 10 of the agreement dated 4-4-1966 can be resorted to in the execution proceedings. The High Court has not adverted to the question as to how despite the observation of the executing Judge in his order, dated 15-5-1984 that clause 10 was a 'pre-decretal' matter and cannot be considered; the said clause can be pressed into service in the execution proceedings. No convincing reason has been given by the High Court as to how clause 10 of the agreement can be availed of while seeking attachment of compartments Nos.30, 31 and 32. In view of the case-law relied upon by the learned counsel for the appellant, referred to above, particularly AIR 1927 Lah. 894(2), AIR 1962 All. 374, AIR 1950 Mad. 608, AIR 1937 Lah. 537, AIR 1975 Orissa 239, we have no hesitation in holding that clause 10 of the agreement being a 'pre-decretal' matter cannot be resorted to in execution proceedings for the attachment of compartments Nos.30, 31 and 32.
47. ' The learned counsel for the appellant has submitted that according to the terms of agreement dated 4-4-1966, the respondent was entitled to get 10% depreciation yearly on the timber till Ist January, 1968 and not afterwards. The learned counsel has vehemently argued that it has not been stipulated in the agreement, award or decree passed that the respondent would be entitled to get 10% depreciation yearly till the satisfaction of the decree. Thus, according to the learned counsel for the appellant, the decree in favour of the respondent already stands satisfied and he was no more entitled to any further removal of timber. He has further contended that even otherwise, the arbitrator who had to make award within a period of two months reckoned from the date of reference, made the award after almost 1-1/2 years and, thus, the agreement dated 4-4-1966 stands frustrated within the meaning of section 56 of the Contract Act and the respondent was no more entitled to any further relief in the execution proceedings.
48. ' In reply, the learned counsel for the respondent has controverted the arguments advanced by the learned counsel for the appellant and contended that the aforesaid points were not taken by the appellant before any of the Courts below and, thus, he was not entitled to raise these points in this Court. He has further argued that even otherwise, the aforesaid points cannot be raised in view of the principles of estoppel and res judicata. The learned counsel maintained that the agreement in question cannot be said to have been frustrated because the principle embodied in section 56 of the Contract Act is not applicable if the frustration is self-induced. He has maintained that in the instant case if, at all, the doctrine of frustration of the agreement is held attracted, the appellant is not entitled to any benefit under section 56 of the Contract Act. In support of his contentions, he has referred to commentaries on section 56 of the Contract Act in the books entitled 'Cheshire and Fifoot's Law of Contract', ninth edition and 'Chitty on Contracts', twenty-third edition.
49. ' We have given our due consideration to the above reflected points and we are of the opinion that these points have not been raised before in any of the Courts below and there is no finding on these points. Thus, we are of the view that the above reflected two points, i,e,, the questions as to whether the respondent was not entitled to 10% depreciation after Ist day of January, 1968; and whether the agreement dated 4-4-1966 have been frustrated, cannot be permitted to raise before this Court at this stage. The appellant, if so advised, may raise these points in the executing Court and it would be for that Court to decide as to whether these points can be raised and if the answer is in affirmative, how they would affect the execution proceedings.
50. ' In the light of what has been stated above, we accept the appeal with costs and set aside the impugned orders of the executing Court and the High Court in terms that the order of attachment of compartments Nos.30, 31 and 32 of Sharda Division passed by the executing Court and affirmed by the High Court on the basis of clause 10 of the agreement dated 4-4-1966 are violate of law and are not sustainable. The executing Court may proceed with execution proceedings under law.