1. ' Briefly stated facts of the case out of which this Execution Petition has arisen are that the petitioner has installed a Soda Ash manufacturing plant which is located within the territorial limits of Town Committee, Khewra, District Jhelum. The respondent Zila Council issued a notification on 30-6-1985 imposing export tax on various items including Soda Ash at the rate of Rs,50 per truck and Rs,100 per Railway Wagon. The petitioner challenged the aforementioned levy in appeal before the Commissioner, Rawalpindi Division respondent No,2 which was dismissed on 9-4-1987 and the notification/levy in question was upheld. The petitioner challenged the aforementioned notification as well as the order of dismissal of appeal in Writ Petition No, 186 of 1987 which was accepted vide order dated 27-11-1990 and the impugned notification was declared to be illegal and without a lawful authority and of no legal effect. The respondent Zila Council challenged the aforementioned order passed by this Court in Civil Appeal No,158 of 1991 which was accepted by the Hon'ble Supreme Court of Pakistan vide order dated 2-11-1992 and the writ petition was dismissed, with the result that the notification/levy in question remained in force. The respondent-Zila Council started realising export tax in accord with the notification referred to above whereupon the petitioner filed representation before Zila Council praying that the respondent is entitled to levy export tax only on those Soda Ash consignment that remain within the territorial limits/terminal points of Zila -- Council, Jhelum and not on those consignment which are in transit for maximum period of 24 hours as laid down in Rules 5(5) of the Punjab Zila Council (Export Tax) Rules, 1990. However, the respondent-Zila Council did not agree with the representation filed by the petitioner and allegedly continued charging export tax on all type of consignments. The petitioner who was writ petitioner- respondent before the Hon'ble Supreme Court of Pakistan has filed this petition under Order 45, Rules 15, C.P.C. Read with Article 187/190 of the Constitution of Islamic Republic of Pakistan, 1973, seeking execution/implementation of the order passed by the Hon'ble Supreme Court of Pakistan according to which as per petitioner's contention those consignment of Soda Ash that remain within the territorial limits of Zila Council for a period less than 24 hours are not liable to the levy of export tax in question. This petition has been contested by the respondent. In the written statement the following two preliminary objections have been raised: "(1) That the Hon'ble Supreme Court of Pakistan was pleased to dismiss the petitioner's writ petition vide its order dated 2-11-1992. Since no executable Order or decree has been passed in favour of the petitioner, therefore, the execution application is not competent.
(2) That in dismissing the writ petition the Hon'ble Supreme Court recorded certain reasons in its order dated 2-11-92. What the petitioner is seeking to execute is not any executable Order or decree but one of the reasons advanced by the august Court in repelling the petitioner's attack against the notification impugned in the writ petition. What became conclusive between the parties was the matter which was decided by the Supreme Court and not the reason which led the Court to decide the matter. A reason employed in support of an Order is not capable of being executed through the instant execution application. The application is, therefore, misconceived and not maintainable."
2. ' And it has been contended that the execution petition is liable to be dismissed on the basis of the aforementioned two preliminary objections. Although the petition was not formally admitted as per record but it has been considered and argued as an admitted case.
2. Mirza Anwar Baig, Advocate, learned counsel appearing for the respondent has raised the preliminary objections referred to above regarding maintainability of this writ petition and has contended that as no executable order/decree has been passed in favour of the petitioner as the writ petition filed by the petition has been dismissed, the execution petition is liable to be dismissed.
3. Elaborating his contentions, learned counsel has argued that the levy in question was challenged by the petitioner in Writ Petition No,168 of 1987 before this Court which was accepted vide order date 27-11-1990, which order was set aside by the Hon'ble Supreme Court of Pakistan in Civil Appeal No,158 of 1991 vide order dated 2-11-1992 whereby the order passed by this Court was set aside and writ petition fixed by the petitioner was dismissed, therefore, there being no executable order or decree in favour of the petitioner, merely because an argument or a reason has been mentioned in the order.Passed by the Hon'ble Supreme Court after mentioned whereof the writ petition has been dismissed, no relief can be said to have been granted to the petitioner and hence it cannot be said that any executable favourable order has been passed in his favour, execution whereof can be sought through an execution petition, hence, this petition is not at all maintainable and is liable to be dismissed on this short ground. In support of his contentions, learned counsel has placed reliance on cases of State of Pakistan and another v. Mehrajuddin PLD 1959 SC 147, Ghulam Muhammad Sultan Mahmud and others PLD 1963 SC 265, Salahuddin Khan, Chief Executive, Frontier Sugar Mills & Distillery Ltd. And 2 others v. The Frontier Sugar Mills & Distillery Ltd. And 5 others PLD 1978 Pesh. .128, Kh. Muhammad Yousaf v. Kh. Abdul Rashid and 2 others PLD 1973 Kar. 686 and Mst. Behar Jan Nessa v. Saijuddin Khan and others PLD 1956 Dacca 1.
4. As against the above arguments, addressed by the learned counsel for the respondent on the question of maintainability of writ petition learned counsel for the petitioner has taken me through the order passed by the Hon'ble Supreme Court of Pakistan execution petition whereof is being sought and has relied upon the following portion thereof which is reproduced as under: ' The Government of Punjab vide notification dated 24-4-1990, referred to above, issued a clarification that 'export' means export from the Zila Council limits and to further illustrate it, it was specifically provided in para. No, 5 that Zila Council shall levy and collect export tax on expect of goods produced within its limits or those which during their transit through the limits of Zila Council beyond the time allowed for the purpose under the rules.
3. ' The notification impugned in the writ petition before the High Court was not the original notification levying the export tax on Soda Ash but was an amendment thereof in the rate of export tax whereby the rate of tax was as a matter of fact, reduced. It is borne out from the record that against the original notification respondent No, 1 had made representation but later on withdraw therefrom and thereby acquiesced in the right of the appellant to impose export tax on Soda Ash.
4. Thus, respondent No, 1 could not have grievance against the impugned notification whereby only the rate was amended. Did not contain any absolute direction. It stopped short with declaring the rights and the obligations of the parties relating to the property forming the basis of the claim sought to be enforced through these execution proceedings. There was no provisions therein that the right so fixed were to be enforced by execution proceedings muchless against the respondents.
5. The decree under the circumstances would be just declaratory in nature and, therefore, incapable of execution."
6. ' In case of "Salahuddin Khan v. The Frontier Sugar Mills" (supra) it has been held that if a decree or order is passed by the Hon'ble Supreme Court with clear direction for execution and implementation of the agreement reached between the parties expressing clearly so in such an order, the High Court is bound to issue direction for implementation of the aforesaid agreement as it would amount to passing of executable decree and for this purpose it is not necessary that the decree-holder was a party to the decree or not. At pages 134 to 136 of the report it has been held as under: "The first objection raised before us by Mr. S.M. Zafar, learned counsel for the respondent is that the relief granted to the appellant by the Supreme Court was in the nature of declaratory relief which does not admit of execution and, therefore, the learned Company Judge has erred in having passed the order under appeal. In reply to this objection we are construed to advert to the judgment of the Supreme Court of Pakistan dated 11th of April, 1977. Their Lordships of the Supreme Court observed that "we cannot convert ourselves into an executing agency in respect of the matter comprised in the undertakings embodied in our order of the 24th November, 1976". In view of these observations it would obvious that their Lordships were fully aware that the nature of relief sought by present appellants before them was the execution of the order, dated 24th November, 1974. Their Lordships did not even remotely suggest that the order was not capable of execution because of any bar, legal or otherwise. On the other hand, their Lordships expressed themselves in very clear terms that the order in question would be executed in the High Court, for the Supreme Court cannot be supposed to execute its own order. It would, therefore, the manifestly clear that the reference was for no other purpose that of executing the order of 24th November, 1976. In this respect we are yet fortified by another observation of their Lordships that "the learned Company Judge in the Peshawar High Court will issue necessary direction for implementation of the mutual settlement between the parties." This would clearly indicate that the learned Company Judge before whom the matter was to be placed by the appellants was to issue direction for the implementation of the agreement and it can hardly be denied that this means the execution of a decree. A fortiori therefore, we cannot go into the question whether the order of the Supreme Court is executable or not. In view of the clear direction made for execution and implementation of the agreement reached between the parties.
7. ' Mr. S.M. Zafar, learned counsel next argued that once the Board of Directors withdrew the offensive resolution which the Supreme Court directed it to withdraw, the order of that Hon'ble Court stood executed. He submitted that Salahuddin Khan was thereafter again removed by the Board of Directors and there was no bar against his removal. According to the learned counsel, there was, therefore, no order in the field which was to be executed. It has already been indicated above that the learned Company Judge did not approve of this submission and we agree with him for the agreement was not acted upon sincerely and in good faith.
8. ' Mr. S.M. Zafar further contended that Salahuddin Khan was the only person who had gone to the Supreme Court and, therefore, the order of that Hon'ble Court could be executed only, so far as his rights are concerned. He submitted that Sariab Hayat Khan and Maj.-General (Retired) Jahanzeb Khan were not parties to the proceedings before the Supreme Court. Therefore, they could neither the proper parties before the Court in execution proceedings nor was there any order in their favour which could be executed by this Court in the present proceedings. This argument completely ignores the order of the Supreme Court. The order of the Supreme Court is for the implementation of the agreement. The agreement was between Salahuddin Khan on the one hand and Taj Muhammad Khanzada with the support of the Directors on the others. In any way, the agreement as reproduced in the judgment of the Supreme Court very clearly incorporates the stipulation that Maj.-General (Retired) Jehanzeb Khan and Sariab Hayat Khan would be the Directors of the Company and that they shall hold offices until 31st January, 1978. The submission of Mr. S.M. Zafar to the contrary thus holds no water. The agreement which has to be executed in letter and spirit by this Court as directed by the Supreme Court also contains that these two gentlemen would continue as Directors and, therefore, it is incumbent upon this Court to enforce this agreement which has been incorporated in the order of that Hon'ble Court. It is well settled that the decree-holder need not be party to the decree. It is enough if the decree confers some rights enforceable under the decree upon some persons mentioned in it.
9. ' Mr. S.M. Zafar next contended that the Supreme Court has itself held in its original judgment PLD 1975 SC 244 that the High Court does not have the power to direct the Company to restore a Director to the office and thus the appellants cannot approach this ' Court for the restoration of their offices. In this respect, we referred to the following observations of their Lordships at page 262 of the judgment: `It is also clear that while acting under clause (2)(B)(ii), the High Court would only grant a declaration as to the authority of the respondent to hold the office in question, but it could not grant a mandamus to restore or reinstate the applicant to that office in case it comes to the conclusion that the incumbent had no authority to hold the same. The High Court would in such a case only declare the office to be vacant, leaving the rightful claimant, if any to take whatever steps may be open to him to occupy the same.
10. ' Even if the point of view expressed by Mr. S.M. Zafar were to be escaped as a correct interpretation of these observations there is no bar to the present ' proceedings. As has been seen the Supreme Court has wound up the observations by say:- ' Leaving the rightful claimant if any to take whatever steps may be open to him to occupy the same.'
11. ' One of the steps which the present appellants took in pursuance of these observations was to file an application for contempt of Supreme Court by persistent refusal of respondent to act in accordance with the declaration granted by the Supreme Court in its judgment. When the matter came up before Supreme Court, it directed the appellants to have recourse to execution proceedings before this Court. Article 187, clause (2) of the Constitution lay down that:- ' `Any such direction, order or decree shall be enforceable throughout Pakistan and shall where it is to be executed in a province or a territory or an area not forming of a province but within the jurisdiction of the High Court of the Province, be executed as it if had been issued by the High Court of the Province.'
12. The High Court is, therefore, duty bound to execute the Order of the Supreme Court and the words "direction, order and decree" are in no manner inhibited or circumscribed by any consideration whatever. So long as it is an order or a decree given by the Supreme Court, Article 187 of the Constitution makes the same executable and also makes it the duty of the High Court concerned to execute it.
13. ' Article 190 of the Constitution may also be quoted in this respect. It provides:-- "All executive and judicial authorities throughout Pakistan shall act in aid of the Supreme Court."
14. ' Resume of the case-law referred to above clearly shows that if an executable order, decree or direction is passed by the Hon'ble Supreme Court of Pakistan, the High Court is bound to execute the same under Article 187 read with Article 190 as well as the provision of Order 45, Rule 15, C.P.C.
15. However, in case the order passed by the Hon'ble Supreme Court is declaratory in nature and no specific direction is made therein or no enforceable relief is specifically granted there is nothing to be executed and the order being not executory in nature, the execution petition cannot be entertained by the High Court as there is nothing to be executed or implemented in such a situation.
16. ' In the case in hand the levy of export tax vide the notification referred to above had been challenged by the petitioner firstly by way of appeal before the Commissioner and then in writ petition, before this Court, wherein, the levy in question was declared to be illegal and without a lawful authority. Appeal filed by the respondent however, succeeded and the order passed by this Court was set aside and the writ petition was dismissed. Consequently, no executory decree or order has been passed in favour of the petitioner by the Hon'ble Supreme Court of Pakistan. The observations made by their Lordships in the order with regard to the mode of collection of levy on the goods which are in transit are just a reasoning or at the most declaratory in nature which declare the correct legal position. No executory or enforceable order has been passed in favour of the petitioner. Consequently, it cannot be said that the petitioner has any enforceable cause of action in this execution petition, through this Court. The petition is, therefore, dismissed as not maintainable. No order as to costs.