' This application, under section 115 of Civil Procedure Code by Federation of Pakistan and another, seeks to call in question the order, dated 10-9-1997 whereby the learned Civil Judge, Lahore/as Executing Court, dismissed applicant's objection petition.
2. The facts, shortly stated, giving rise to this application are: that M/s. Sarwar & Company/respondent filed a suit for recovery of Rs,8,25,989 against applicants. The suit, after contest, was decreed by 1st Court on 20-2-1997. Feeling aggrieved, applicants filed Regular First Appeal No,81 of 1997 on 18-3-1997. Alongwith appeal, an application under Order 41, Rule 5 of C.P.C.
Was moved for staying the execution of the impugned decree. The appeal was admitted to regular hearing on 24-3-1997 and its execution was stayed subject to condition that the applicants shall deposit decretal amount in some profit bearing scheme of concerned National Savings Centre within a period of two months. This order was subject to notice. On 2-4-1997, Civil Miscellaneous No,2 was preferred wherein it was prayed that the order of this Court, dated 24-3-1997 passed in Civil Miscellaneous No,1 of 1997, be modified and condition relating to deposit of decretal amount in some profit bearing scheme of concerned National Savings Centre be also modified. Learned counsel for applicant did not press the said Civil Miscellaneous with an intention to challenge the order dated 24-3-1997 before the apex Court. Civil Miscellaneous No,3-C of 1997 was preferred to the same effect which was dismissed on 21-4-1997. Still dissatisfied, applicant filed leave to appeal against the aforesaid order before the Supreme Court but withdrew it. Thereafter, on 17-10-1997, respondent/decree-holder moved an application for execution of the decree dated 20-2-1997.
Applicants, in reply, filed an objection petition under section 82 of C.P.C. Read with section 151 of C.P.C. Alleging therein the decree was not executable; that it was imperative for the executing Court to refer the matter to Provincial Government. This application was rejected by the learned Executing Court on 18-10-1997. This is background in which this revisional application has come to this Court.
3. Learned counsel for the applicants, in support of this application, relied upon section 82 of C.P.C.
To contend that the decree impugned in Regular First Appeal No,81 of 1997 was inchoate and could not be executed unless and until the Court reports to Provincial Government for order and no process can be issued unless it remains unsatisfied for a period of three months calculable from the date for such report. Reliance was placed on Jagarnath Prasad v. State of Bihar AIR 1961 Pat.
271. It was next argued that as regard the orders of this Court dated 24-3-1997, 2-4-1997 and 21-4- 1997, these had no nexus with the execution proceedings. The learned counsel for the respondent, on the contrary, submitted that the revisional jurisdiction was discretionary in nature; that applicant has come to the Court with unclear hands; that the decree was passed by First Court on 20-2-1997; that appeal was filed on 18-3-1997; that its execution was stayed on 24-3-1997 subject to deposit of decretal amount in some profit bearing scheme of National Savings Centre within a period of two months; that the said order was maintained by this Court vide order dated 21-4-1997 and that the applicant had withdrawn in Civil Petition for Special Leave to Appeal from Supreme Court. On the strength of the above circumstances, it was stressed that it was totally immoral on the part of applicant to move objection petition and also to file this application. Support was got from Pakistan v. Mr. Khalid Nazir 1991 CLC 563.
4. I have heard the learned counsel for parties at some length, attended to their conflicting contentions and perused the record. Fortunately, factual background of this application is not in dispute. The only question, that arises for consideration, is whether the Executing Court could proceed with execution without complying with the preconditions embodied in section 82 of C.P.C.
This section reads asunder:-- "(1) Where the decree is against the Government or against a public officer in respect of any such act as aforesaid, a time shall be specified in the decree within which it shall be satisfied; and if the decree is not satisfied within the time so specified, the Court shall report the case for the orders of the Provincial Government.
(2) Execution shall not be issued on any such decree unless it remains unsatisfied for the period of three months computed from the date of such report."
' A fair reading of this provision indicates that its underlying object is to provide a chance to Government or public functionaries/judgment-debtor to satisfy the decree before its execution is ordered. Subsection (1) ibid prescribes that time shall be specified in the decree within which it shall be satisfied by Government/Government functionaries. It further says that if the decree is not satisfied within the time so specified the Court shall report to the Provincial Government for its order. Subsection (2) ibid postulates consequences arising out of non-satisfaction of decree. It lays down that the execution shall not be issued on any such decree unless it remains unsatisfied for a period of three months from the date of such report. Manifestly, sub-clause (1) is followed by sub- clause (2) which is consequential in nature and the Court is directed in negative terms not to issue any process till such decree remains unsatisfied for a period of three months from the date of such report. The use of expression 'shall not issue' and 'from the date of such report' are meaningful.
These make section 82 ibid as obligatory in nature. It clearly follows that the Executing Court had a duty to make a report to Provincial Government for orders before it proceeds with execution. This inference is fortified by the observation of his Lordship Mr. Justice Kaikaus in the Registrar, Cooperative Societies v. Mantgomery Flour and General Mills Ltd. PLD 1958 (W.P.) Lah.
366. Dealing with nature of section 82, C.P.C. His Lordship said:- "It is to be observed, in the first place, that a decree against the Government and a decree against a public officer in his official capacity is placed on the same footing by virtue of section 82. Just as a decree against the Government is not to be executed till the case is reported to the Government, similarly a decree against a public officer in his official capacity cannot be so executed. Had the matter stopped here, there may still have been room for doubt as to the effect of a suit against a public capacity, but Rule 8 of Order XXVII is decisive. According to it if the Government pleader does not appear, the suit is to be regarded as one between private parties, which means that if he does appear it is not a suit against the public officer in his personal capacity but the Government virtually becomes a defendant."
' This view had been taken in Governor General-in-Council v. Piramal Marwari AIR (35) 1948 Pat.
179. It was held therein:-- "But in my view, the decree, though not void, is incomplete. The Court in passing a decree against the Crown has not only to pronounce that the Crown is liable either to pay some money or to do some act but has also to specify a time within which the decree will have to be satisfied. In case he does comply with that provision, he has a further act to do, namely, to send a report to the Provincial Government in case of non-satisfaction of the decree within the time specified by him in it. Till three months after such a report, the decree must remain in the state of its preliminary stage.
It may be limened to a decree subject to certain conditions. Suppose there is a compromise decree in which the parties agreed as to declaration of certain rights and liabilities and at the same time fixed certain conditions before which they agreed that the operative part of the decree should not be put into execution. In that case even though the decree is not void nor erroneous is still not executable until the conditions are fulfilled. We know. The distinction between the decrees preliminary and decrees final. I should say that the Court that sat upon judgment in the suit against the Crown has only performed the first part of his duty, namely, adjudication of the respective rights and liabilities of the parties. There are two other parts to be done by him, namely, to specify a time and after the lapse of the time in case of non-satisfaction of the decree to submit a report; till then the decree is incomplete and not final nor executable. Under the circumstances, however, if the executing Court refuses to execute a decree which is in its preliminary stage, he does not thereby violate the principle that the executing Court should not go behind the decree." ' and was followed in Dominion of India v. Behray Kundu AIR (37) 1950 Cal. 247 and Jagarnath Parsad v. State of Bihar AIR 1961 Pat.
271.
5. From the aforesaid discussion, there emerges preponderance of judicial authority for proposition that the section 82 of C.P.C. Is a mandatory in nature and it casts a duty upon an Executing Court to make a report to Provincial Government if the decree is not satisfied against Government/Government functionaries within the time specified in it and that it empowers the Executing Court to proceed with execution proceedings after expiry of three months computable from the date of report if Government/its functionaries/judgment debtor fails to satisfy the decree.
The rule enunciated in Jagarnath Parsad's case, supra, stands at dissimilar facts and so is not applicable to case in hand.
6. With regard to conduct of the applicant, suffice it to say that noncompliance of the orders of this Court dated 23-4-1997, 2-4-1997 and 21-4-1997 passed in Regular First Appeal No,81 of 1997, these have no nexus with the controversy raised in this application. These orders pertain to plea of stay of execution of decree and have also no nexus with preconditionalities of section 82 of C.P.C. The result of non-compliance is that there is no hindrance in the wa' of execution proceedings except the preconditionalities contained in section 82.
7. The upshot of above discussion is that this revisional application is bound to succeed; that the order passed by the learned executing Court, dated 10-9-1997 is hereby set aside with a result that the execution application filed by applicant shall be deemed to be pending. The learned executing Court shall immediately report the matter to Provincial Government and will be well within his power to proceed with the execution proceedings if the impugned decree is not satisfied within the period of three months from making the said report. Order of this Court shall immediately be sent to executing Court. There shall be no order as to costs.