' ABDUL SHAKURUL SALAM, J.---This appeal by leave arises in the following circumstances.
2. Muhammad Fazil, predecessor-in-interest of the appellants was killed by the driver respondent No,2 of a Truck which was owned by respondent No,3. Heirs of the deceased sued them as well as the Insurance Company respondent No,1, claiming rupees two lac as compensation on 18-10-1982/ 29-3-1983. The respondent contested the suit. The respondent No,1 filed on 22-11-1983 a separate written statement pleading that the suit against it was time-barred and that it was not liable to pay any amount under the expired policy. Its Manager All Ahmad appeared as a DMA on 14-2-1985.
After the trial, the suit was decreed for Rs, two lac by the learned Civil Judge 1st Class, Sargodha on 10-4-1986. Respondent No,1 filed an appeal. It was dismissed for non-prosecution on 24-9-1988.
Application for restoration was filed. It, too, was dismissed for non-prosecution.
3. The heirs of the deceased, decree-holders the respondents filed an application for execution of the decree before the trial Court. It was resisted by the respondent No,1 on the ground that its liability was limited to Rs,16,000 as provided under law. It was dismissed by the learned trial Court on 29-11-1989. Respondent No,1 filed an appeal which was dismissed on the ground that the executing Court could not go behind the decree and it had to execute the decree as it is by the Additional District Judge on 28-2-1989. The decree was executed. The respondent No,1 filed a revision petition in the Lahore High Court and contended that its liability was limited to a sum of rupees twently thousand only vide section 95 (2) (a) of the Motor Vehicles Act, 1939. The contention prevailed before a learned Judge and revision petition was accordingly allowed vide order dated 8-4-1990. At the leave stage it was urged on behalf of the decree-holders that "the questions which could have been raised in the proceedings in the suit but were not raised could not be urged by the judgment-debtor before the executing Court which is bound to execute the Decree as it is".
Leave was granted on 22-8-1990.
4. Learned counsel for the appellant diligently argued the case and referred to a number of decisions. He referred to "Kudratulla Sarkar and others v. Upendra Kumar Chawdhury" (AIR 1925 Calcutta 203) wherein it was observed that "this is an appeal in execution proceedings by the heirs of the judgment-debtors. The suit in which the decree was obtained was a suit againt a Co- operative Loan Society with unlimited liability and against the Secretary, the Chairman and two members who signed the bond in respect of the money lent by the plaintiff in the suit. The suit was, I think, clearly wrongly constituted as the Cooperative Society alone should have been sued. But the suit was decreed in part and, I think it is clear from the decree and the plaint that the only possible construction that we can put upon the decree is that it was a decree not only as against the Cooperative Society but against the Chairman, who has already stated was one of the defendants, personally, and it has heirs who are the appellants before us. Although I think the suit was wrongly framed it is not possible for us in execution to set aside the decree that was passed against the Chairman-defendant. For some reason or other no appeal was preferred against the decree and that decree accordingly stands, and I think it is impossible for us to construe the decree as we are asked to construe it as merely a decree against the Cooperative Society and as regards the other defendants as merely indicative of their ultimate liability under the provisions of the Act. The first point, I think accordingly fails and we are bound to hold that the decree-holder is entitled to execute the decree against the heirs of the Chairman-defendant". He then referred to "Brij Mohan Das v. Mst. Piari" (AIR 1937 Allahabad 357), where it was observed that "This is a revision under section 115, Civil P.C. Against an order passed by the Munsif of Shahgan in execution proceedings. The appellant Brij Mohan Das obtained an ex parte decree against the opposite party, Mt. Piari, for a sum of Rs,550 in a suit which so far as the Civil Procedure is concerned, could be instituted in Benares and also in Jaunpur, the plaintiff having the choice of form. The judgment- debtor resides in Jaunpur District and the decree-holder obtained a certificate of transfer of the decree for execution in Jaunpur. When he applied to the Court at Jaunpur for execution of his decree, the judgment-debtor objected .On the ground that the Court which passed the decree sought to be executed had no jurisdiction, as he (the judgment-debtor) was an agriculturist and the suit against him could be instituted only in the District in which he resided. The Court executing the decree gave effect to this objection, holding that the Benares Court had no jurisdiction to pass the decree under execution. It is contended in revision that this view is erroneous.
' In my opinion the order of the lower Court cannot be supported. It is not disputed that, but for the Agriculturists Relief Act, the Court which passed the decree had jurisdiction to entertain the suit brought by the appellant and to pass a decree on proof of his claim. The opposite-party did not appear and did not raise the question as regards the forums selected by the appellant. She could have pleaded that she was an agriculturist and, therefore, the suit should have been instituted in the Jaunpur District only. She did not avail herself of the opportunity to raise such a plea and allowed an ex parte decree to be passed againt her. It is a well-known rule that the Court executing the decree cannot go behind it and allow its validity to be impugned. The case in which the Court executing the decree can disregard its apparent tenor are laid down in 1934 AU 409 and 1935 AWR
867. The present case does not fall within any of the exeptions therein referred to. Broadly speaking, it is not permissible for the Court executing the decree to embark on an inquiry into facts which, if established would show that the Court passing it had no jurisdiction to pass it. Where the jurisdiction of a Court to pass a decree depends on the existence of certain facts, the Court executing the decree shall refuse to take evidence in proof of those facts for the purpose of determining the jurisdiction of the Court passing the decree". Privy Council judgment in "Mahant Har Kishan Das v. Satgur Prasad" (AIR 1938 Privy Council 98) was referred to. It was laid down therein that in execution proceedings, the question as to whether the view of the Court which passed the decree is right or wrong is no longer open. He then referred to "Arbn. Jupiter General Inse. Co. Ltd. v. Corporation of Calcutta" (AIR 1956 Calcutta 470) in which an award was made against an, Insurance Company. It was sought to be set aside on various grounds but it was held that the Court does not decide the question of competence of the reference. In fact it does not at all go into the question of statutory disability (underlying is our) and when the statute creates disability in this respect, there is no difference between a person and a Corporation. It does not say that there can be any estoppel against Statute or consent will create statutory capacity where there is none, as indeed no Court can say it either in respect of a person or a Corporation. In such cases what the Court does is not to pronounce on the question whether the award or the arbitration proceedings was void but it prevents the point being taken by a party to challenge the award if being aware of the disability of the other party he did not take such objection on the ground at the stage when the matter was referred or submitted to arbitration (1860) 30 U Bcy. 10 Foll. Le alsb referred to S.A. Latif v. Nadir Khan" ( PLD 1968 Lahore 144), wherein it was observed that "it is now well established that the validity of a decree can be challenged in execution proceedings on the ground that, the Court which passed the decree was lacking in inherent jurisdiction in the sense that it could not have scizen of the case because the subject-matter was wholly foreign to its jurisdiction or that the defendant was dead at the time the suit had been instituted or decree passed, or some such other ground which could have the effect of rendering the Court entirely lacking in jurisdiction in respect of the subject-matter of the suit or over the parties to it. In Ahmad and Co. v. Muhammad Siddique it was held; "the only ground which has been recognised by Court which can be urged in execution proceedings as regards the validity of the decree is that the Court which passed the decree had no jurisdiction to do so. Such absence of jurisdiction must be inherent. Except in such cases the execution Court has no jurisdiction to go behind the decree". He then referred to "Kazi Abdul Kader v. The East Pakistan Provincial Cooperative Bank Ltd." (1969 SCMR 275). It was laid down that "an executing court cannot go behind an ward and determine its validity or invalidity. The executing Court is required only to execute the award as it is. This view was taken by both the executing Court and the High Court and they were correct in taking this view".
Reference was made to "Abdul Malek Miah v. Moslemuddin (Mokleshuddin) Sheikh" (PLD 1970 Dacca 743) wherein it was laid down that "it is well-settled that an executing Court cannot go behind the decree. It is true that under certain circumstances where the decree is without jurisdiction or is a nullity then the executing Court is entitled to take notice of such circumstances.
Illegality in the order on other grounds, however, cannot give such scope to the executing Court.
Want of jurisdiction is not the same thing as illegal exercise of jurisdiction. It is, therefore, well established that an executing Court cannot refuse to execute the decree because it is against law or contravenes any provision of any statute. Patent want of jurisdiction is not to be confused with the illegal exercise of such jurisdiction". He there quote "Yousuf Aziz v. Mst. Aqeela Begum and 3 others" (PLD 1978 Karachi 205) wherein was referred "Jupiter Insurance Company v. Calcutta Corpn.", in which the facts were that the applicant participated in arbitration proceedings without protest and fully availed of the entire proceedings. But the award passed by the arbitrator went against him. The applicant challenged the arbitration proceedings as without jurisdiction on the ground that the agreement for arbitration was void as the Corporation had no power under the Calcutta Municipal Act to refer any matter to arbitration. In this connection refusing to entertain the objection P.B. Mukharji, J. Made the following observations: "It will be seen from this case that the ....What the Court does. It does not decide the question of competence of the reference. In fact it does not at all go into the question of statutory disability and when the statute creates disability in this respect there is no difference between a person and a Corporation. It does not say that there can be any estoppel against statute or consent will create statutory capacity where there is none, as indeed no Court can say it either in respect of the person or a Corporation. In the words of the Lord Chancellor which have just quoted the Court says "the claimant cannot now be heard to make the objection even if the objection might have prevailed if taken in due time". In other words the measure of the Court's attitude is that it disallows the party to urge his point at all, so that it has no more any occasion to decide it. In such cases what the Court does is not to pronounce on question whether the award or the arbitration proceedings was void but it prevents the point being taken by a party to challenge the award or being aware of the disability of the other party he did not take such objection on that ground at the stage when the matter was referred or submitted to arbitration."
' He then referred to "Abdul Khaliq v. Haji and another" (PLD 1983 Lahore 445) and read out para.6 which is as follows:-- "Even if the view taken is that while deciding Issue No,3, the learned trial Court had held that the respondents were not liable to pay the amount in dispute it would be of little avail to them. The suit was, undoubtedly, decreed against all the defendants, including the respondents who were arrayed as defendants Nos.2 and 3 in the suit. The decree sheet was also prepared accordingly.
The appellant too had claimed the amount in dispute from all of them. According to the judgment and decree of the learned Civil Judge, therefore, the respondents were also liable to pay the decretal sum. If the respondents were not satisfied with the decree passed against them they could assail it by means of an appeal. One of them, namely, Mst. Sharifan together with Mst.
Rehmat Khatoon, who was one of the defendants in the suit, had actually filed a joint appeal which was subsequently withdrawn by them and was, therefore, dismissed. Thus, the decree had attained finality and it had got to be executed even if it was erroneously passed against the respondents.
The executing Court cannot rectify any mistake in the decree because it would tantamount to going behind the decree. And as ruled in the case of Messrs Haji Ahmad and Co. Cited by learned counsel for the appellant, the executing Court cannot go behind the decree. In the case Ghanaya Lal and others, which was also relied upon by learned counsel for the appellant, it was observed by a Division Bench of the Lahore High Court that "the rule of law is firmly established that where the decree is free from ambiguity, the Court of execution is bound to execute it whether it is right or wrong". In the present case the decree granted by the learned trial Court was unimbiguously against all the respondents, and, therefore, it could be executed against all of them.
' He lastly referred to "Mst. Shim Majid v. Subarkatagin Majid and another: (1984 CLC 1531) to contend that executing court cannot go behind the decree.
4. Learned counsel for the respondent No,1, on the other hand relied on "Muhammad Latif Khan v.
Mst. Nayab Begum" (PLD 1968 Karachi 758) to contend that an executing Court is competent to go behind the decree. The facts in this case were that the Chairman of the Conciliation Court instead of certifying failure of conciliation proceedings for non-nomination of representative of a party as required by clause (b) of subsection (4) of section 5 of the Ordinance, granted a decree. When it was sought to be executed it was declined on the ground that "the Chairman had on the failure of the appellant to nominate his representatives, merely to certify the failure of the conciliation under subsection (4) (b) of section 5 of the Ordinance and the decree in the sum of Rs,10, 000 awarded by him against the appellant is a nullity as there was no Court properly constituted under section 5
(1) of the Ordinance and the decree also offends against the statutory requirement of section 5 (4)
(b) ibid. Since the defect is patent on the face of the order passed by the Chairman the Executing Court below was competent to take notice of it. This Single Bench judgment is distinguishable on facts in so far as that the order, sought to be executed as a decree on 'the face' of it showed that it was passed by an authority not properly constituted. It does not lay down that decree passed by a competent Court can be gone behind to see whether it was rightly passed or not, or whether it was justified on facts or pleas properly adjudicated upon or not. Learned counsel referred to "Port Muhammad Bin Qasim Authority v. Messrs National Insurance Corporation and others" (1989 SCMR 100) to contend that the liability of Insurance Company is limited to Rs,20,000 (twenty thousand). It may be so but it had to be pleaded before the decree was passed. It was not so pleaded when the respondent No,1 filed the written statement. When the decree was passed, the respondent No,1 filed an appeal taking up the plea but allowed the appeal to be dismissed for non-prosecution. So also the restoration application. The decree became final. The respondent No,1 itself is responsible for having lost its defence. The decree has to be executed as it is. It is not permissible to go behind it and say that it should have been for so much amount and no more. He also referred to "B.V.
Patankar and others v. C.G. Sastry" (AIR 1961 Supreme Court 272) and submitted that here the executing Court ignored the provisions of the Rent Controller Order eviction of tenants and passed an order of delivery of possession in execution of a decree, the order was set aside and an order of redelivery to the tenant was passed on an application under section 47 read with section 151, C.P.C.
It may be noted that in this case the Court which passed the decree was prohibited from passing the decree. Since it lacked the jurisdiction the decree it passed was without jurisdiction and void, therefore, its execution was equally without basis in law and was set aside. The case is not a precedent for the proposition that a decree passed by a competent court can be ignored or not executed by a Court competent to execute it when there is no bars of jurisdiction in passing the decree or executing it. He also referred to "Islamic Republic of Pakistan v. Muhammad Saeed" (PLD 1961 SC 192) and submitted that question relating to the executability of an order or decree can be raised even in execution proceedings and it is open to the party against whom it is sought to be executed to show that it is null and void or had been made without jurisdiction or that it is incapable of execution. Relevant facts in the precedent case were that an order passed in Writ jurisdiction having not been complied with, proceedings in contempt were taken and it was urged that the order initially passed by the High Court without jurisdiction and, therefore, non-compliance did not constitute contempt. In the case in hand, there is no question of the decree having been passed without jurisdiction. The Court which passed the decree undeniably had the jurisdiction.
Whether its decree was well based on facts or law did not warrant any interference in the execution proceedings.
5. After hearing the learned counsel for the parties at length and perusing the record and the precedents we arc of the view that no doubt that the liability of the appellants was limited under the relevant statute. In the suit filed by the appellants, the respondent No,1 filed the written statement. It did not take the plea of limited liability. It produced its Manager as D.W.1, However, decree was passed in favour of the appellants and against the respondents. The respondent No,1 filed an appeal but did not prosecute it and it was dismissed for non-prosecution. The respondent No,1 then filed an application for restoration but did not prosecute. This too, was dismissed. Thus, the decree became final. In the execution proceedings, it was not open to the respondent No,1 to take up the plea which he had not taken before the learned trial Court during the course of the hearing of the suit which was ultimately decreed and the decree allowed to become final. In these circumstances, the respondent No,1 itself is responsible for the decree against it, even though its liability was limited. It is not open to the respondent No,1 judgment-debtor now to contend that its liability has not been correctly assessed or determined. If it were permissible, there will be no end or finality to the judgment and decree which had become final. Precedents noted and analysed above make quite clear that once a decree is passed it has to be executed in its terms and it is not open to the executing Court to go behind it and re-determine the liability of the parties. In this view of the matter, there is no option but to allow this appeal and hold that the learned Judge in the High Court fell in error in giving effect to the plea of the respondent No,1 which had not been raised before the learned trial Court which granted the decree to the appellants. It may also be noted that the decree has already been executed. There is no good ground in the circumstances to put the clock back. Therefore, the impugned order is set aside. However, in the circumstances the parties are left to bear their own costs.