1. At the very outset of the proceedings, it is pointed out by Mr. Arshad Mohsin that the objections filed by the Judgment-Debtor can be considered unless the decretal amount is deposited in terms of Order XXI, Rules 23-A C.P.C. The provisions contained in Order XXXI, Rules 23-A, C.P.C. is as follows: "23-A. Deposit of decretal amount, etc.---An objection by the judgment-debtor to the execution of a decree shall not be considered by the Court unless-- (a)in the case of a decree for the payment of money, he either deposits the decretal amount in Court or furnishes security for its payment; and (b)in the case of any other decree, he furnishes security for the due performance of the decree."
2. In support of his said submission, the learned counsel for the decree-holder has referred to the case of Muhammad Yasin Khan v. Aftab Ahmed Khan PLD 1976 Karachi 1133 wherein after considering the contentions of the learned counsel, the following finding was recorded:- "As the judgment-debtors in the instant case have not given any security within the meaning of Order XXI, rule 23-A, clause (b) before the stage of consideration of the objections by the Court, their rejections to the Execution application cannot be considered. Even otherwise the judgment debtors had failed to make out a case for rejections of the application for execution of the consent decree on the basis of their objections."
3. The learned counsel for the judgment-debtors while conceding that the above referred provisions requires deposit of the decretal amount of furnishing security for due performance of the decree, has urged that the execution application is liable to be dismissed for being barred by limitation and want of maintainability. It is urged by the learned counsel for the judgment-debtors that the decree, sought to be executed through the present proceedings, was passed on 31-5-1988 on the basis of application for compromise filed under Order XXIII, Rules 3, C.P.C. Under the said decree, the judgment-debtors have acknowledged their liability for the claim amount and had consented to decree against them in terms of the prayer contained in the plaint. However, payment of the decretal amount, was agreed to be made in instalments. The decretal amount of Rs,79,832,124.20 was payable as follows:- (a).Rs,1 Million on the execution of this application (receipt whereof the plaintiff does hereby acknowledge).
4. (b).Rs,2,750,000 in August 1988 upon receipt whereof the plaintiff shall redeem the mortgage charge on property bearing survey No,128, Survey Sheet No, CF-1-5, Clifton, Karachi and shall release the documents of title of the said property to defendant No, 1 .
5. (c).Rs,2,750,000 in March 1989 upon receipt whereof the plaintiff shall redeem the mortgage charge on property bearing survey No,123, Survey Sheet No, CF-1-5, Clifton, Karachi and shall release the documents of title to defendant No,3. However, upon redemption of mortgage release of documents of title to defendant No,3, the guarantee dated 26-11-1983 executed by defendant No,3 in favour of the plaintiff as security for repayment of the outstanding of defendant No,1 shall not stand released but the same shall continue to be valid and in force,.
6. (d).Rs,2,500,000 on or before 31st December, 1991.
7. (e).Rs .7 ,500 ,000 on or before 31st December, 1992 (f).Rs,87,66,000 on or before 31st December, 1993 (g).Rs,10,000,000 (Rupees ten crore) during each year commencing from 1994 onwards on or before 31st December of each year commencing from 1994 until full and final payment of the decretal amount as claimed in the suit."
8. According to the learned counsel, the period of limitation for filing execution application is three years under Article 181 of the Limitation Act which had expired on 31-5-1991 whereas the present proceedings were filed on 25-8-1993. It is urged by the learned counsel for judgment-debtors that the entire decretal amount had become payable when decree was passed, as above, on 31-5- 1988. The learned counsel has further urged that the execution application was liable to be rejected on the above ground and therefore, the provisions contained in Order XXI, Rules 23-A, C.P.C. is not attracted to the present case.
9. In reply, Mr. Arshad Mohsin has urged that the decretal amount was admittedly payable in instalments and each and every instalment is to be considered to have become due for payment on the date stipulated in the decree. The learned counsel has referred to statement filed alongwith the execution application, acknowledging therein payment of a sum of Rs,9 million in instalments up to 30th December, 1991 which is stated to have satisfied the instalments stipulated under clauses (a), (b), (c) & (d) of the above referred decree; and, the decree-holders have sought execution of decree relating to the instalments which fell due on 31st December, 1992 and thereafter. It is further urged that the starting point of limitation under Article 183 of the Limitation Act or even under Article 181 of the Limitation Act has to be 31st December, 1992 when instalment (e) of Rs,7,500,000 had become due for payment. The learned counsel in support of his submission has referred to judgment in the case of Sh. Muhammad Ali v. M/s China Silk House 1985 CLC 679 and two cases from Indian jurisdiction being Chunilal Motiram v. Shivram Naguji Ghule and others AIR 1950 Bombay 188, Lasa Din v. Mt. Gulab Kunwar and others AIR 1932 Privy Council 207. In the case of Sh. Muhammad Ali (supra), while dealing with a decree for payment through instalments, a Division Bench of the Court repelled the contention that the decree-holder can wait till the last instalment became due; held:- "The proposition cannot be accepted as stated for in a case where the decretal amount is payable by instalments but it is provided that in case of default the whole decretal amount becomes due and payable on any default the time would run from the date of such default unless there is waiver or condonation of default in which case time for each instalment would run from the date of each default and, therefore, to recover the instalments under the decree the application must be filed within the time provided under the law from the date of each default for, if, it is held otherwise it would the effect of extending the period of limitation for the whole decretal amount or the instalments in default, as the case may be, beyond the prescribed period for which there is no warrant in the Limitation Act."
10. On the basis of the above quoted dictum it is contended by the learned counsel for the decree- holder that the execution application filed on 25-8-1993 for recovery of instalments falling due on 31st December, 1992 and thereafter, is clearly within time.
11. Mr. Mansoorul Arfin on behalf of the judgment-debtors had tried to distinguish the judgment in Sheikh Muhammad Ali (supra) on the ground that it had considered the applicability of Article 182 of the Limitation Act. I am afraid, this can hardly be treated a ground of distinction. It is further urged by Mr. Arfin that the repayments allegedly received by the decree-holder were made by judgment-debtor No,1 which cannot extend the period of limitation in relation to the other judgment-debtors who did make any payment in terms of the decree, dated 31st May, 1988. The learned counsel in support of his above submission has referred to the provisions of sections 20 and 21 of the Limitation Act besides referring to four (4) judgments from the Indian jurisdiction reported in AIR 1948 Oudh 190, AIR 1939 Aallahabad 230, AIR 1935 Calcutta 648, ILR 27 Allahabad 562.
12. In the Oudh case, cited above, it was held that payment made by one out of the several defendants cannot extend limitation against codefendants. Besides, it is urged that by virtue of Order XXI, Rule 2, C.P.C. as decree-holder is required to certify any payment for adjustment to the Court which is to be recorded accordingly. The learned counsel has urged that the decree-holder in the present case has failed to certify the payment received by it in terms of the above referred provision and therefore, the payment are not to be taken into consideration.
13. In the present case the decretal amount had to be paid in instalments and the suit was decreed in the sum of Rs,79,832,124.20 in terms of the prayer contained in the plaint. Prayer 'C' contained in the plaint, being relevant, is reproduced hereunder for convenient reference:-- "(c). For a decree jointly and severally against the defendants in the sum of Rs,79,832,124.20 (Rupees seven crore ninety eight lacs thirty two thousand one hundred twenty four and twenty paisas only) together with interest therein at 14% per annum from 1-4-1984, date of institution of the suit until recovery of the decretal amount."
14. The abovequoted prayer having been granted against defendants Nos.1 to 5, all of them became jointly and severally liable for making payment of the decretal amount. The repayments asserted by the decree-holder having not been disputed, I do not find any material on the record to hold that the payments were made by the judgment-debtor No,1 alone. In the absence of any material, as above, the repayments are to be treated to have been made by all the 5 judgment-debtors jointly. The contention raised by Mr. Arfin that the payments made in pursuance of the decree would not extend the time for filing execution application against judgment-debtors Nos.2 to 4 is, thus, misconceived. The said objection about limitation, even otherwise cannot be considered for having not been pleaded. The judgment-debtors besides being obliged to deposit decretal amount under Order XXI, Rule 23-A, C.P.C. are required to plead section 21 of the Limitation Act specifically and in the absence of such plea, the earlier payments are to be deemed to have equally been subscribed by all of them. As regards Order XXI, Rule 2, C.P.C., suffice to observe that such question also is not material in view of the fact that the repayments made in pursuance of the decree have not been disputed. In any event, the objection raised by Mr. Arfin is too technical which cannot be sustained to thwart grant of a right. The statement filed by the decree-holder, in the absence of any material to the contrary can be treated the certificate under Order XXI, Rule 2, C.P.C. It is pertinent to note that Article 174 of the Limitation Act prescribed time for application under Order XXI, Rule 2, C.P.C. moved by a judgment-debtor but no time-limit is prescribed by law for similar application moved by a decree-holder. Even the residuary Article 181 would not apply to the decree-holder certifying payment as above. Such principle was substantially laid down by Privy Council in the case of Raja Shri Prakash v. Allahabad Bank Ltd. (1928) 3 Luck. 684(PC). It appears that the judgment-debtors are merely trying to evade their liability on the basis of technicalities.
15. Moreover, the decree-holder in the present case has admittedly applied for execution of decree in relation to the instalments which were to be paid on 31st December, 1992 and thereafter. When a decree permits payment of decretal amount in instalments, the payment becomes due and the right to apply for execution accrues when the instalment becomes due and not earlier. Evidently aid of the Court cannot be sought for effecting recovery of the amount which is not due. In any event, the dictum laid down in the above referred case of Sh. Muhammad Ali, is binding on me and I do hold the same view. In my view, therefore, time for filing execution application would start from the date when default is committed in payment of instalments and not from the date of decree.
16. Any other interpretation is bound to expose the decrecholder to undue hardship and trapping them in technicalities. Even under Article 181 of the Limitation Act, time starts running from the date when the right to apply accrues. The right to file execution application for recovery of unpaid instalments accrues when the same became due and not earlier. The principle contained in Article 115 of the Limitation Act, too supports the said view and time would commence from the date breach in payment of instalment occurs.
17. The present proceedings, in view of the above discussion, could not have been filed before 31st December, 1992 and the same having been filed within 3 years from such date are within time, hence not barred by limitation.
18. The next ground urged by the learned counsel for the judgment-debtor is that the decree-holder had been allowed to be substituted by M/s. Habib Credit and Exchange Bank Ltd.,., referred hereinafter as the applicants, through Order dated 25-8-1993 without due compliance with the requirements of Order XXI, Rule 16, C.P.C. It is urged by Mr. Arfin that the decree-holder could not be allowed to be substituted by the applicants for the reason that it being a subsidiary of M/s. Habib Bank Ltd. cannot undertake banking business by virtue of section 23 of the Banking Companies Ordinance, 1962. In reply, the learned counsel has referred to section 7 of the Banking Companies Ordinance 1962 and submits that a subsidiary organization can undertake the various functions mentioned in the last referred provision in addition to the Banking business. In any event, it is urged by Mr. Arshad Mohsin that the applicant is no more a subsidiary of M/s. Habib Bank Ltd. and on 1- 10-1992 was independently granted licence by the State Bank of Pakistan to do banking business under section 27(1) of the Banking Companies Ordinance, 1962. Reference has also been made to the scheme framed under section 47 of the Banking Companies Ordinance which has duly been approved by the Government of Pakistan. The learned counsel submits that the objection about the status of the applicant was raised by the judgment-debtor No,1 in proceedings being Suit No, 685 of 1993 filed on the original side of this Court seeking declaration, inter alia, the fact that the transfer of management of the decree-holder to the applicant was unlawful and that the applicant was not the legal successor of the decree-holder nor entitled to receive and recover any of assets/money belonging to BCCI Pakistan. A copy of order passed in Suit No,685 of 1993 by my learned brother Rasheed Ahmed Rizvi, J., has been placed on record showing that the plaint in above suit was rejected. The learned counsel for the judgment-debtors has tried to get out of situation arising out of the above referred order passed in Suit No,685 of 1993, by contending that rejection of plaint in a suit does not amount to adjudication on merits and does not have binding effect nor can the principle of res judicata be pressed on the basis of such order. While it is true that the principle of res judicata cannot be pressed on the basis of order rejecting plaint in a suit, I find that the above referred order passed in Suit No,685 of 1993 contains detailed discussion of the contentions raised by the learned counsel for judgment-debtors which have elaborately been discussed and repelled. It is pertinent to note that the judgment-debtor No,1 was respondent in the said case too by Mr. Mansoorul Arfin. I do not feel inclined to take a different view from what is expressed in the above referred order passed in Suit No,685/1993 regarding the status of the decree-holder and the applicant. The question about validity of the amalgamation scheme of the decreeholder came up for consideration before another Bench of this Court in Suit No, 672 of 1990 and lawful by order dated 23-5-1996.
19. No other objection having been urged on behalf of the judgment-debtors, the execution application is granted. Let appropriate writ be issued as prayed. The learned counsel for the judgment-debtors, at this stage points out that under the terms of decree itself, it is provided by clause (4) of the compromise, that upon payment of a total sum of Rs,16.5 million, the judgment- debtor No,3 would be released from personal liability under the guarantee dated 26-11-1983 executed by her in favour of the decree-holder. Needless to observe that the decree has to be executed in the terms and to the extent contained therein.