Decree-holder is seeking execution of the judgment, dated 2-3-1998, passed in R.A. No,296 of 1986 (Muhammad Asar Hussain v. K.D.A. and another) and of the decree, dated 11-4-1998, which was passed by this Court on its appellate side. The said decree was prepared as a result of an order, dated 2-3-1998 passed in the above R.A. No,296 of 1986 by a learned Single Judge of this Court while sitting on the appellate jurisdiction which reads as follows:-- .. This appeal has been filed on behalf of the appellant, praying that a decree may be prepared in terms of the order of the Honourable Supreme Court passed in Civil Appeal No,375/K of 1990 as further clarified in Review Petition No,35-K of 1991. By virtue of the aforesaid two orders of the Supreme Court the judgment of this Court in Civil Revision No,296 of 1986 holding cancellation of allotment of the plot in dispute in favour of the appellant/applicant as illegal and decreeing the suit filed by the appellant. The subsequent allotment of the plot in dispute in favour of respondent No,2 was held to be illegal and inoperative. A show-cause notice was issued by respondent No,1 against the applicant for showing cause as to why the allotment of the applicant in respect of the plot in dispute may not be cancelled and against this show-cause notice the applicant had filed Constitutional Petition No,1462 of 1996 which was disposed of by a learned Division Bench of this Court vide order, dated 25-11-1997, whereby the said show-cause notice, dated 6-5-1996 was held to be illegal and without jurisdiction and it was further observed that respondent No,1 was expected to discharge its statutory duty in accordance with the law, which was reaffirmed by the Supreme Court of Pakistan. Mr. Muhammad Asar Hussain, Advocate who is himself the applicant in this case, submits that now there is no obstacle or hindrance in drawing out a decree in terms of the order of this Court in Revision Application No,296 of 1986, duly affirmed and maintained by the Supreme Court of Pakistan. Mr. Ikram Siddiqui, learned counsel appearing on behalf of the K.D.A., has no objection to the drawal of decree in terms of the order of this Court, duly affirmed by the Supreme Court of Pakistan.
Accordingly this C.M.A. is allowed as prayed. The office is directed to prepare a decree in terms of the order of this Court in R.A. No,296 of 1985, as affirmed by the Supreme Court of Pakistan ..."
2. On the last date of hearing I had asked Mr. Muhammad Asar Hussain to satisfy me that how a final order/judgment passed by this Court on its appellate jurisdiction is executable on the civil original side. I have heard Mr. Asar Hussain, Advocate. The facts leading to the present controversy starts with the dismissal of Suit No,1350 of 1967 by the Senior Civil Judge, Karachi vide judgment, dated 26-4-1982. The appeal filed by the decree-holder was dismissed by the District Judge vide judgment, dated 23-8-1986 against which the decree-holder filed a Civil Revision No,296 of 1986 (Muhammad Asar Hussain v. K.D.A. and another) in the High Court which was partly allowed to the extern' that the suit of the applicant (now decree-holder) for declaration that the cancellation of allotment order in his favour and its subsequent allotment to respondent No,2 was declared to be illegal and inoperative. However, dismissal of suit by the two subordinate Courts, to the extent of the prayers for accepting occupancy value and to deliver physical possession was maintained.
Against this respondent No,2, namely, Zafarullah Khan filed Civil Appeal No,375/K of 1990 before the Honourable Supreme Court which vide its judgment, dated 14-4-1991 maintained the order of this Court passed in R.A. No,296 of 1986 and dismissed the appeal.
3. Mr. Muhammad Asar Hussain has placed reliance on the order, dated 12-9-1991 passed in the Review Petition No,35/K of 1991 by the Honourable Supreme Court, through which the review petition filed by him was dismissed on the ground that the earlier order passed by the Supreme Court is in his favour and that the scope of review is limited. He has placed reliance on the observation which reads: "Petitioner, who is an Advocate and appeared in person at the time of hearing of appeal, seeks review of judgment, which is in his favour on the ground that he is entitled to specific performance of the agreement". According to learned counsel the Honourable Supreme Court has clarified its previous order by saying that a decree for specific performance of the agreement was also granted. Be that as it may, the question which requires consideration is whether this Court is legally competent to frame the decree and to execute the same which has been passed, as a result of judgment delivered on the appellate jurisdiction. Mr. Asar Hussain has placed reliance on Order X, Rule 9 of the Supreme Court Rules, 1980, (hereinafter mentioned as the Rules, 1980) which provides that the decree passed or order made in every appeal or any direction or writ in any matter by the Supreme Court shall be transmitted by the Registrar of the Supreme Court to any other Court, Tribunal or other authority concerned from whose judgment decree or order the appeal or matter was brought before the Supreme Court and that in such decree, order or direction shall be executed and enforced as if it had been made and issued by the High Court of the appropriate Province. Rule 9 of Order X of the Rules, 1980 reads as follows:-- "9. The decree passed or order made in every appeal and a direction or writ issued in any matter by the Court shall be transmitted by the Registrar to the Court, Tribunal or other Authority concerned from whose judgment, decree or order the appeal or matter was brought, and any such decree, order or direction shall be executed and enforced as if had been made and issued by the High Court of the appropriate Province."
4. In my humble view Rule 9 of the Order X of the Supreme Court Rules, 1980, is not attracted as a matter of rule in all cases. It will come into operation when a decree, order or writ is transmitted by the Registrar of the Supreme Court to the concerned Court for its execution. In the instant case no such transmission took place. No order or direction was passed by the Supreme Court for execution of its order by this Court. It was an application C.M.A. No,180 of 1998 filed in R.A. No,296 of 1986, which resulted in framing of decree by this Court as a result of an order, dated 2-3-1998, as reproduced hereinabove.
5. A decree-holder is competent to seek execution of the decree by filing an application as provided under Order XXI, Rule 11(2), C.P.C., which provides that the decree-holder shall apply for the execution to the Court which passed the decree or to the Officer if appointed in that regard. It is this provision of law which led Mr. Muhammad Asar Hussain, to say that since the main judgment was passed by this Court in R.A. No,246 of 1986, partly decreeing the suit, it is this Court which is competent to execute the decree. This provision is clarified by section 37, C.P.C. which has defined the expression "Court which passed a decree". It would be advantageous if the provision of section 37, C.P.C. is reproduced:-- "37. Definition of Court which passed a decree.-- The expression 'Court which passed a decree' or words to that effect, shall in relation to the execution of decree unless there is anything repugnant in the subject or context, be deemed to include--
(a) where the decree to be executed has been passed in the exercise of appellate jurisdiction, the Court of first instance, and
(b) where the Court of first instance has ceased to exist or to have jurisdiction to execute it, the Court which, if the suit wherein the decree was passed instituted at the time of making the application for the execution of the decree, would have jurisdiction to try such suit."
6. Section 37, C.P.C. came up for consideration in several reported cases.
To begin with, it was held by the Allahabad High Court in Bhagwan Dass v. Ganga Prasad AIR 1959 All. 92 that the words "appellate jurisdiction" used in section 37, C.P.C. has a wide meaning and comprehensive enough to include jurisdiction. Reliance was placed on the decision of a Full Bench of Madras High Court in Chappan v. Moidin Kutti ILR 22 Mad.
68. Similar question as of instant case in reference to section 37, C.P.C., also came up for consideration in Ardeshir Cowasjee v. Byram D.
Avari and 4 others 1984 CLC 2494 where reference was made to the case Bhagwan Das (supra); Lingam Krishna Bhoopathi Deo Garu v. Raja of Vijayarnram and another AIR 1914 Mad. 222 and Alluri Bangar Raju and others v. Alluri Raja Kaliandi Suraiahmma Bahadur and another AIR 1957 Andh. Pra.
403. In the last mentioned case it was held that the proper Court to execute the appellate decree would be only the trial Court by virtue of section 37, C.P.C.
This view was endorsed by the Division Bench of this Court before whom following contentions were raised and which were elaborately answered in the following manner: -- ".. The question, therefore, arises whether this Court is empowered to execute the order which was passed by us in exercise of appellate jurisdiction. Reference has been made in this connection to section 38 of the C.P.C. which provides that a decree may be executed either by the Court which passed it or by the Court to which it is sent for execution. Now the term 'the Court which passed decree' has been defined by section 37, C.P.C. Clause (a) of section 37, C.P.C. provides that the expression 'the Court which passed a decree' shall, where the decree has been passed in exercise of appellate jurisdiction, be deemed to include the Court of first instance. Mr. Khalid Anwar learned counsel for the appellant has argued that by virtue of section 37(a) the appellate Court is not precluded from executing its own order. According to him the word 'includes' appearing in section 37(a) does not mean that the Court of first instance is the exclusive Court for executing decree passed by the appellate Court, and that the language in which section 37(a) is couched clearly indicates that the appellate Court has got concurrent jurisdiction with the Court of first instance in respect of implementation or execution of orders or decrees passed by the appellate Court in exercise of appellate jurisdiction.
We are unable to agree with the learned counsel that this Court has got concurrent jurisdiction with the Court of first instance in the matter of execution of appellate decrees. The order of the Court of first instance, dated 8th March, 1983, which was modified in appeal by us by order, dated 26th May, 1983, shall be deemed to have been merged in the appellate order. Now it is the Court of first instance which is competent to implement the final orders in terms of section 37(a), C.P.C.
Section 38, C.P.C. is not an independent section. It is to be read in the context of provisions of section 37(a), C.P.C. so far as the interpretation of the expression 'the Court which passed decree' is concerned...
7. In view of the rule laid down in the case of Ardeshir Cowasjee (ibid) and in view of section 37(a) of the C.P.C. it is Court of first instance which is competent to execute the final orders/decree of an appellate Court. Now, Mr. Asar Hussain is seeking enforcement of judgment/decree passed by this Court in its revisional jurisdiction by filing an execution application on the original civil jurisdiction of this Court. It is not permissible in law. A decree framed by this Court is to be executed by the Court of first instance. In so far question of framing and signing of a decree passed on the revisional jurisdiction (section 115, C.P.C.) is concerned, reliance may be placed on Rule 35 of the Order 41, C.P.C. which inter alia, provides that the appellate decree shall be signed by the Judge or Judges who passed it. However, this provision is not applicable to any High Court while exercising appellate jurisdiction in view of Order 49, Rule 3, C.P.C. which reads as follows: "...3. Application of rules.--- The following rules shall not apply to any High Court in, the exercise of its ordinary or extraordinary original civil jurisdiction namely-- and Rule 35 of Order XLI shall not apply to any such High Court in the exercise of its appellate jurisdiction..."
8. In view of the above discussion, I am of the considered view that this proceeding being misconceived is liable to be dismissed. Order accordingly. Since the judgment-debtor has not come forward to defend the instant proceeding, no order is passed on the question of cost.
However, it will be open to the decree-holder to seek execution of the udgment/decree passed in R.A. No,296 of 1986 as provided in section 37, C.P.C. and as interpreted by a Division Bench of this Court in the case of Ardeshir Cowasjee (supra).