' MUHAMMAD YOUNAS SURAKHVI, J.--This appeal, with the leave of the Court, has been directed against the judgment of the High Court, dated October 28, 1993, whereby, the appeal filed by Abdul Otani, respondent, herein, was accepted and the trial Court was ordered to proceed with the execution proceedings in accordance with law.
2. The precise facts of the case are that Abdul Ghani, respondent, herein, instituted a suit for possession of land measuring 5 Kanals 12 Marlas, comprising Survey No,772, including built up property consisting of 12 rooms situate in Village Dhengal, Tehsil Dadyal. It was averred that the plaintiff and co-defendants Muhammad Siddique, Muhammad Latif and Muhammad Sabir were co-sharers and owners in possession of the suit property. Defendants Rasib Khan and others illegally occupied the suit property and on their denial of the title and right to possess the property by the plaintiff and co-defendants the suit for possession was instituted against them. A decree for possession of suit property was passed in favour of Abdul Ghani and co-defendants by the trial Court. The findings were upheld by the appellate Courts including this Court. After the decision of appeal by this Court a review petition was filed by the judgment-dabtors wherein two of the decree-holders Muhammad Siddique and Muhammad Latif abandoned their rights in the suit property in favour of judgment-debtors. The review petition filed in this Court by the judgment- debtors was ultimately dismissed, however, it was observed in the review petition that the effect of abandonment of interest in the suit land by Muhammad Siddique and Muhammad Latif may be considered by the executing Court. Abdul Ghani, respondent, herein, moved an application for execution of the decree passed in his favour and co-defendants on May 19, 1986. The warrant for delivery of possession was issued on the same day. During the course of execution proceedings one Muhammad Sabir also surrendered his right before the executing Court on July 5, 1986. He moved an application to that effect and in support of the application got his statement recorded on the same day. The judgment-debtors by filing their objections raised the plea that as out of four decree-holders three had relinquished their interest in the suit property, the execution of the decree was no more possible. It was also averred by the judgment-debtors that since the decree under execution was joint decree, shares of the decree-holders were indivisible and unascertainable, so by no stretch of imagination the decree was executable. It was also alleged that the decree to the extent of three decree-holders had already been adjusted, as such the execution was not possible in the circumstances of the case. Abdul Ghani respondent, herein, moved another application in the executing Court on July 16, 1986, for execution of decree, as in his view the alleged adjustment of decree was not certified in accordance with law, consequently the whole decree was liable to execution. Again a third application was moved on August 5, 1986, by Abdul Ghani to the same effect. The executing Court i,e, Sub-Judge Dadyal accepting the plea of judgment-debtors dismissed the application for execution on October 4, 1986. This order was upheld by the learned District Judge, MirPur, vide his order, dated July 29, 1992. The High Court in appeal, as said earlier, accepted the appeal of Abdul Ghani and remanded the case to the executing Court for proceeding with the execution proceedings in accordance with law. Hence this appeal.
3. Ch. Muhammad Azam Khan, the learned counsel arguing the case on behalf of appellant, vehemently contended that the phraseology used in Rule 2(1), Order XXI, C.P.C. Clearly relates to money decrees and it has nothing to do with the decree of any other kind. Since in the instant case there is no money decrg sought to be executed, so the application of Rule 2(1), Order XXI, C.P.C. Has no application whatsoever. The learned counsel maintained that there was hardly any need of formal certification of the adjustment of the decree to the executing Court. Two out of the decree- holders admitted the adjustment of the decree in clear and unequivocal terms in the Supreme Court, during the pendency of the review petition and the third decree-holder made statement before the executing Court, relinquishing his interest, in the decree, as such the question of limitation was immaterial. The learned counsel emphasised that since the decree was a joint decree and the shares of the decree-holders were not ascertainable, so the decree was not executable in the circumstances of the case.
4. On the other hand Ch. Ali Muhammad the learned counsel for respondents, strenuously contended that the provisions of Rule 2(1), Order XXI, C.P.0 not only apply to money decrees but also to the decrees of every kind, hence the application of Order XXI, Rule 2(1) by the High Court was perfectly valid and substantiated by the settled principles of law governing the subject. The learned counsel maintained that in absence of certification of adjustment of decree, the decree was liable to execution as a whole. It was maintained by the learned counsel that the requirement of law was that certification of adjustment should be made within 90 days from the date of the judgment, or at least the executing Court should be informed of such adjustment, within 90 days, from the date of adjustment. In support of his contention the learned counsel relied on numerous authorities from Indian as well as Pakistan Jurisdiction to which we will advert in the latter part of the judgment at the relevant time.
5. We have heard the respective points canvassed by the learned counsel for the parties and perused the relevant record made available with care.
6. In our view, the most important and the pivotal point, which goes at the very root of the case, is as to whether the provisions of Rule 2(1), Order XXI, C.P.C. Apply only to the money decree or to every kind of decree. For the resolution and proper appraisal of the point involved, it would be useful to reproduce the provisions of Rule 2(1), Order XXI, C.P.C., which reads as under:-- "Where any money payable under a decree of any kind is paid out of Court, or the decree is otherwise adjusted in whole or in part to the satisfaction of the decree-holder, the decree-holder shall certify such payment or adjustment to the Court whose duty it is to execute the decree, and the Court shall record the same accordingly."
From the plain treading of the aforesaid Rule it becomes clear that the addition of the words "of any kind" after the word "decree" in sub-Rule 2(1) makes it clear that the provisions of this Rule are not confined to money decrees but apply to every kind of decree. A similar proposition came to be considered in a case reported as Shaikh Niamat v. Shaikh Jalil AIR 1928 Calcutta 715, wherein it was observed:-- "Provisions under Order XXI, rule 2, are not confined to money decrees only but apply to every kind of decree. Where a decree for partition is passed and parties make a private adjustment but the same is not certified by the Court, the executing Court cannot be asked to recognise such an adjustment."
' In Ellis Enas Pavloo Gharry v. Kitter Philip Gowrya reported as AIR 1922 Bombay 390) it was held:-- "The words 'where any money payable under a decree of any kind is paid out of Court or the decree is otherwise adjusted', do not confine the provisions of the rule to money decrees, the provisions of Order XXI, rule 2 would be entirely defeated, if an uncertified adjustment of a decree is permitted to be discussed in execution proceedings."
' In Shadi and others v. Ram Ditta AIR 1936 Lahore 842, it was opined: "As the words 'the decree' in Order 21, Rule 2 surely mean a decree of any kind and would include a decree for possession of a house. No adjustment of such decree can be recognised by the Court unless it is certified and no application for certification can be made except within 90 days."
' Similarly in Mantrilal's case (AIR 1943 Nagpur 339) it was observed:-- "The words 'the decree' in rule 2(1) mean the decree of any kind and should not be read meaning a decree of any kind under which money is payable."
7. So from the case-law cited above it becomes abundantly clear that provisions of Rule 2(1), Order XXI, C.P.C., not only relate to money decrees but to the decrees of every kind. In the instant case the decree sought to be executed is a decree for possession of the suit property, so it is clearly covered by the aforesaid rule of Order XXI. The argument advanced by the learned counsel for the appellants, on careful consideration, is found to have no substance and the High Court has committed no illegality in applying Order XXI, Rule 2, C.P.C.
8. As said earlier it is a joint decree in favour of four persons. The decree is for possession of immovable property relating to land measuring 5 Kanals 12 Marlas and 12 rooms raised thereupon.
An application for execution of a joint decree, as postulated under Rule 15(1) of Order 21, C.P.C. May be moved by any one or more or such persons who are decree-holders. All the decree-holders or any one of them may move for the execution of whole decree for the benefit of all the decree- holders. In the instant case as "the decree is in the nature of joint decree for immovable property, therefore, all the decree-holders or some of them or anyone of them was competent to move for the execution of the whole decree. To this extent there is no cavil on behalf of learned counsel for the parties.
9. The point of dispute between the parties pertains to adjustment by three decree-holders. Two of them surrendered their share in favour of judgment-debtors during the review petition pending before the Supreme Court, while Muhammad Sabir, the third decree-holder, surrendered his right in the decree, during the execution proceedings, applying in the executing Court and making a statement to that effect in the Court on July 5, 1986. To the extent of Muhammad Sabir there was no quarrel that he surrendered his interest in the decree and to that extent his interest was quite adjustable. The requirements of provisions of Order )XI, Rule 2(1), C.P.C. Relating to information to the executing Court and certification of the adjustment within statutory period of 90 days were duly fulfilled.
10. The rule of procedure applicable to the satisfaction or adjustment of decree, as rightly been pointed out, by the learned Judge in the High Court, is postulated under Rule 2(1), Order XXI, C.P.C.
The scheme of the law provided therein is that where the decree is adjusted in whole or in part, to the satisfaction of the decree-holders, out of the Court, the decree-holders shall certify such payment or adjustment to the Court whose duty it is to execute the decree, and the Court shall record the same accordingly. The judgment-debtors may also inform the Court of such satisfaction or adjustment and apply to the Court to issue notice to the decree-holders as to why such adjustment or satisfaction may not be recorded or certified. Any adjustment or satisfaction not made in accordance with the scheme postulated under law, it was laid down, shall not be recognised by the Court executing the decree. When a decree was satisfied or adjusted in whole or any part, out of the Court, in such situation it was enjoined upon the decree-holder to certify such adjustment or satisfaction to the executing Court. Under Sub-Rule (2) of Rule 2, Order XXI, C.P.C. The judgment-debtors were also under obligation to inform the Court of such adjustment or satisfaction and to apply to issue notice to the decree-holder to admit such adjustment or satisfaction, so that it was recorded or satisfied. Such information was to be given within 90 days from the time of adjustment or satisfaction of the decree, out of the Court. Where the information was withheld or it was disclosed after the period of more than 90 days, as provided under Article 174, of the Limitation Act, from the date of satisfaction of the decree, in part or in whole, as the case may be, it was enjoined upon the Court not to recognise the adjustment or satisfaction of the decree.
11. The relevant Court to be informed of the adjustment for the satisfaction of the decree, is the executing Court. However, the appellate Court was equally competent to receive the information or certification of adjustment by the decree-holder, provided the matter was sub judice before it, out of the execution proceedings. In the instant case the claim of the judgment-debtors is that Muhammad Siddique, Muhammad Latif accepted the adjustment of the decree by surrendering their interest in the same, during the pendency of their review petition, before this Court.Thus, in view of the learned counsel for the appellants there was hardly any need of formal information to the executing Court and certification by the decree-holders. In our view the contention of the learned counsel for the appellants in not in consonance with the scheme of law. It is no doubt correct that during the pendency of the review petition Muhammad Siddique and Muhammad Latif volunteered to make their statements wherein they admitted the adjustment of the decree, to the extent of their interest, in the shape of relinquishment of their title. However, the learned Chief Justice of this Court excluded the scope of compromise among the decree-holders and judgment-debtors at the stage of review petition. It would be useful to reproduce some of the relevant paras. From the judgment of the learned Chief Justice of this Court: "However, it is certain that it does not visualise a compromise during the pendency of review petition.
' In view of above I hold that when an appeal/suit is filially disposed by the Supreme Court, a compromise during the pendency of the review petition cannot be entertained for resolution of the point involved in the suit or appeal.
' For the view which I have taken in the matter, this review petition stands dismissed. However, the question involved may be taken during the execution proceedings."
12. As said earlier it is an accepted principle of law that an information of adjustment or satisfaction of the decree, out of the Court, is to be furnished to the executing Court, which is to recognise the certification made by the decree-holders. This view finds ample support from Sarita's case AIR 1951 Himachal Pardesh 60 wherein it was observed:-- "Order 23 applies neither to execution proceedings nor tct a revision. Hence the High Court in revision is precluded from determining the terms of an alleged compromise in execution, ordering the compromise to be recorded and passing a decree in accordance therewith. The proper forum for the determination of this question is the executing Court."
' A similar view was held in Humayun Properties' case AIR 1963 Calcutta 473, wherein it was held: "Held that though the decree-holder did not deny payments, it could not be said that the decree- holder had given information to the Court in compliance with Order 21, Rule 2(1) that is to say that he had duly certified such payments to the Court, and the Court could take notice of the same.
Thus, the decree-holder had a right to execute the decree for possession."
' In case reported as Dr. Major Abdul Ahad Khan v. Muhammad Iqbal PLD 1989 Karachi 102, it was opined: "Where a decree is adjusted out of the Court to the satisfaction of the decree-holder, he should certify such adjustment to Executing Court who would record the same accordingly---Judgment- debtor could also inform the Court of such adjustment whereupon notice would be issued to decree-holder as to why such adjustment should not be recorded as certified---Judgment-debtor has to apply within a period of ninety days for enabling the Executing Court for issuance of such notice to decree-holder---Any such application made beyond time would not be taken into consideration by Executing Court."
' In the case reported as Muhammad Ishak Ali v. Hira Lal Seraoqi PLD 1964 Dacca 637, it was opined:- "Payment of sum towards decretal amount out of Court evidenced by receipt---Question of adjustment of such sum not pressed before Executing Court within 90 days of date of receipt-- Payment cannot be accepted as certified."
' In the case reported Mokachhed Molla and another v. Abdul Jabbar Molla and others PLD 1956 Dacca 96 it was observed:-- "The executing Court is not bound to recognise an adjustment of the decree unless it is certified within the limited time, and can execute the decree in spite of such satisfaction if it has not been certified. Such a sale cannot be attached under section 47, C.P.C.
Similarly in Murari Lal's case AIR 1934 Allahabad 209 it was held:-- "Having regard to the provisions of Rule 2, Order 21 and Article 174, it is not open to a judgment- debtor to prove adjustment or satisfaction, if he did not take steps to have the same certified within a period of 90 days from the date on which the alleged payment or adjustment was made. This rule would apply whether the payment pleaded is sought to be proved against the decree-holder or his assignee."
13. It was contended before us that period of limitation for certifying the adjustment or satisfaction of the decree, out of the Court, is 90 days from the date of such adjustment or satisfaction, in accordance with provisions contained in Article 174 of Limitation Act. Under said Article the period for issuance of notice to decree-holder, to certify the payment or adjustment of decree, out of the Court, is 90 days from the time when the payment or adjustment was made. In the case under consideration Muhammad Siddique admitted the adjustment of decree, by relinquishment of his share on March 29, 1985. Muhammad Latif made similar statement on April 9, 1985. The application for execution was moved on May 19, 1986, i,e, more than one year after alleged adjustment or satisfaction of share of the aforesaid decree-holders. In such a situation even if it is accepted that the executing Court acquired the knowledge of the adjustment on the day when the application was made, as on same day the objections were filed by the judgment-debtors, whereby the adjustment of part of decree was disclosed, even in that case it has to be accepted that the fact of part adjustment of the decree was brought to the notice of the executing Court after more than one year of the adjustment. Even on that day the decree-holders failed to certify such adjustment.
An omission to certify the adjustment renders the question of adjustment invalid in the eye of law. It is in fact in departure and derogation to the mandatory provisions of Rule 2 of Order 21, C.P.C.
14. Both the parties are in agreement that the shares of the decree-holders in the suit property are indivisible and not settled. In Valchand Gulabchand Shan's case AIR 1953 Bombey 137 an identical proposition came under consideration of the Court, Mr. Justice Rajadhyaksha, who spoke for the Court observed that if the shares of the decree-holders were apparent on the face of the decree, either expressly or by necessary implication, it was not strongly speaking, a joint decree. In such a case, each decree-holder could certify the execution in respect of his own share. But where the shares of the respective share-holders were not apparent on the face of the decree, either expressly, or by necessary implication, the decree sought to be executed was a joint decree. The judgment-debtors must render satisfaction to the whole body of the decree-holders. Thus payment of one of several joint decree-holders could not be recognised as payment of all, unless he was authorised to receive such payment on behalf of all. The satisfaction could not amount to a "protanto" satisfaction, even to the extent of the share of the decree-holder who received the payment. In view of the learned Judge, the remaining decree-holders were entitled to execute the whole decree, though it may result in double payments made by the judgment-debtors. It was also observed that it was not the duty of the executing Court to ascertain the respective shares of the decree-holders in a joint decree. Such an action was foreign to the nature of the executing proceedings.
15. In the instant case the decree has not been satisfied or adjusted to the extent of Abdul Ghani respondent. The decree, being joint, in nature, the natural course of events leads to the conclusion that the decree may be executed as a whole. As observed by the learned Judge in the High Court the judgment-debtors who have entered into the shoes of the rest of the decree-holders, shall stand in their footings and share the decree along with Abdul Ghani respondent. On execution of the decree, as a whole, the judgment-debtors shall be free to support their shares by seeking a regular partition in due course of law. This would obviously serve the ends of justice. For the aforesaid reasons finding no fault in the order recorded by the learned Judge in the High Court, we dismiss the appeal. Since a complicated question of law is involved, the parties shall bear their own costs throughout.