TANVIR AHMAD KHAN, J.- This judgment shall dispose of FAO No. 49/97 titled Vneshnee Conomisheskoje Objedinenije Technoprom Export Moscow (Foreign Economic Association Technopromexport Russian Federation v. Bari Sons (Pakistan) Ltd. And FAO No. 68-97 titled Water and Power Development Authority v. Bari Sons (Pakistan) Ltd. Etc as both of them are directed against the order dated 15.3.1997 of the learned Civil Judge, Lahore accepting the Execution Application Filed by the respondent Bari Sons (Pakistan) Ltd. With a direction to the National Bank of Pakistan WAPDA House Branch and Emirates Bank International Main Bulevard Gulberg to make payment immediately on presentation of copy of the impugned order by the decree holder and confirm compliance to the Executing Court the following day by 10.00 a.m.
2. Facts briefly for the disposal of these appeals are that a Suit No. 61/90 was filed by Bari Sons (Pakistan) Ltd. On 15.1.1990 for the recovery of Rs. 1,68,06000/- against M/s. V.O. Technopromexport i.e. Vsesojuznonje Exportno Importnoje Objedinenije Technoprom Expbrt (All Union Export & Import Association Technopromexport existing under the law of USSR and two others, namely, the Union of Soviet Socialist Republic and Consulate General of the Union of Socialist Republic before Sindh High Court at Karachi on the basis of an agreement entered into between V.O. Technopromexport and Bari Sons whereby the matter was to receive certain commission for prompting the business interest of V.O. Technopromexport in the execution of contract entered into on 23.5.1978 between WAPDA appellant in FAO 68-97 and V.O. Technopromexport for putting into operation of 219 M.W.
Gaddu Thermal Power Station. M/s. Muslim Shamim and Munir A. Malik, Advocates filed their power-of-attorney for V.O. Technopromexport only on 9.10.1991 . They also appeared for USSR and Consulate General in the suit holding watching brief for them. It so happened that Soviet Union disintegrated on 12.12.1991 and 15 independent States instead came into being. The case remained pending for about five years. An application was given by defendants in the suit for its reference to Arbitration in view of section 34 of the Arbitration Act in accordance with para 6 of the agreement which was as under: "Technopromexport" and the "agent" take necessary steps to settle all disputes and disagreements which may arise in connection with his agreement in an amicable way. Should the parties fail to agree on a question at issue all disputes and differences being not liable to consideration in law Courts, are subject to arbitration by the Foreign Trade Arbitration Commission at the USSR Chambers of Commerce, Moscow."
This application was dismissed by the learned Judge of the Sindh High Court through his order dated 22.5.1995 with a direction to all the then defendants in the suit to file their written statements within 4 weeks. An application dated 18.5.1995 was also given by M/s. Muslim Shamim and Munir A.
Malik learned counsel from defendant's side that since the USSR defendant No. 2 in the suit had ceased to exist and so also defendant No. 1 i.e. V.O. Technopromexport, as such, fresh notice be issued to the foreign office so that the successor State may be able to defend the suit as they were not aware which country had assumed the liabilities of the defendants after disintegration. This application was received by the learned counsel appearing for Bari Sons (Pakistan) Ltd. On 24.8.1995. The case again came up for hearing on 3.9.1995 and since the written statement as directed through order dated 22.5.1995 was not filed within the stipulated period of four weeks by the defendants in the suit, the learned Judge debarred them from filing the written statement. The suit was accordingly adjourned to 12.9.1995. On the adjourned date i.e. 12.9.1995 M/s. Bari Sons (Pakistan) Ltd, plaintiff in the suit filed an application under Order 1 rule 10 read with section 151 CPC for deletion of defendants Nos. 2 and 3 i.e. USSR and the Consulate General of USSR alongwith an affidavit of Mst. Roshan Hameed.
3. The learned Judge of Sindh High Court through judgment/decree dated 12.9.1995 accepted the application and deleted USSR and Consulate General from (he array of the parties and decreed the suit against V.O. Technopromexport defendant No. 1 in the suit. Thereafter, respondent Bari Sons Ltd. Filed an Execution petition which was transferred to the Distt. Judge Lahore who received the same on 2.6.1996 at 12.30 Noon. He, immediately, entrusted the same to learned Civil Judge First Class for disposal in accordance with law. On the same day i.e. 2.6.1996 the learned Executing Court attached the funds of the appellant. The appellant on coming to know about the attachment order filed an objection petition on 9.6.1996. The learned Executing Court after receipt of objection of appellant through order dated 18.6.1996 directed that the Garnishee i.e. WAPDA and National Bank of Pakistan WAPDA Branch shall deposit the amount to the extent of decretal amount in the Court and the following issues were framed:
(1) Whether objection petitioner namely Foreign Economic Association Technopromexport has no connection with the judgment-debtor having separate and independent entity? OPO.
(2) Whether assets attached by this Court vide order dated 2.6.1996 and ordered to be deposited in Court on 5.6.1996 belonged to the F.E.A. Technopromexport and as such are liable to be realised.
OPO
(3) Whether objections filed by the objection petitioners are baseless, scandalous, misleading, without any substance, mala fide and as such petition is liable to be dismissed? OPR (3-A) Whether order of this Court dated 2.6.1996 and 5.6.1996 for attachment are illegal and void and liable to be set aside? OP Objector (No. 2 WAPDA).
(4) Relief.
The appellant challenged orders of 2.6.1996 and 18.6.1996 through Civil Revision No. 1785-96 which was dismissed on 9.7.1996 holding that the learned .Executing Court would decide the issue/nexus of the appellant with judgment-debtor after production of evidence.
4. The parties thereafter led their evidence before the Executing Court. The Executing Court/Civil Judge, Lahore through his order dated 15.3.1997 dismissed the objection petition and ordered the satisfaction of the decree from the Accounts maintained by the appellant at National Bank of Pakistan WAPDA Branch and Emirates Bank. Hence this Revision Petition.
5. Learned counsel for the appellant Mr. S.M. Zafar in FAO 49 has argued that the execution proceedings could not have proceeded as the suit became infructuous after the disintegration of Union of Soviet Socialist Republic on 12.12.1991. He has stated that the suit was filed against V.O.
Technopromexport of USSR origin alongwith Union of Soviet Socialist Republic through its Embassy and Consulate General of USSR while the appellant company, namely, VNESHNEE CONOMISHESKOJE OBJEDINENIJE TECHNOPROMEXPORT Moscow got itself registered with Russian Federation after disintegration of USSR on 27.7.1992. The appellant company was created under Russian Civil Procedure Code read with section 51 CPC. It is an independent entity having its registered office at Moscow after its incorporation under Russian Law on 27.7.1992 with no nexus at all with Technopsychology which came to an end by the dismemberment of USSR on 12.12.1991. The contract which was executed by V.O. Technopromexport with Bari Sons (Pakistan) Ltd. For the payment of commission stood frustrated because of the disintegratwin'-of,. USSR. In view of this extraordinary change on the World Map according to learned counsel, even defendant No. 1 V.O.
Technopromexport of USSR origin evaporated with the disintegration of USSR. He has referred to a paragraph quoted by H.C. Morris in his book "The Conflict of Laws" from a judgment titled Re Russian Bank for Foreign Trade (1933) Ch. 745, 764, per Maugham, J. In a case emanated out of Russian Revolution 1917. The observations of the learned Judge regarding the fate of such like company are as under: - "A submerged wreck floating on the ocean of commerce with neither compass nor officers nor crew, no one who would direct its movement."
The amount according to the learned counsel attached by the Executing Court is of the appellant pertaining to an independent contract of Multafi Thermal Project which has got no nexus whatsoever with Guddu Thermal Power Station completed by V.O Technopromexport of USSR origin long before. Learned counsel Mr, S!M. Zafar has also made reference to certain interim orders passed by the learned trial Judge of Sindh High Court, Karachi to show that the impugned decede could not have been passed as the learned Judge with utmost respect himself was. Mot certain who had assumed the liability of Vc. O Technopromexport of USSR origin after disintegration, In support of his contentions he has also made references to various precedents.
6. Learned counsel appearing for the WAPDA in FAO 68-97 has also impugned the order on the ground that M/s. Bari Sons (Pakistan) Ltd. Respondent in both the appeals has got no claim over the attached amount in view of the earlier claim of liquidated damages determined against the appellant for its failure to complete the commissioning of the three power Units within the stipulated period.
7. Learned counsel Mr. Aziz A. Munshi appearing for the decree holder/Messrs Bari Sons (Pakistan)
Ltd. Has supported the impugned order arguing that this Court cannot go behind the decree and the same has to be executed as it is. He has stated that V.O. Technopromexport of USSR origin and the present appellant are one and the same entity. Simply by change of prefix the appellant cannot avoid its liability earlier entered into by V.O Technopromexport. He has pointed out that the appellant is carrying on contract qua the installation of Multan Thermal Power Station at Muzaffargarh which was earlier entered into by V.O Technopromexport of USSR origin accepting the liability. He has further stated that the appellant has been using the same office, cars, telephone number, more or less same employees who were earlier in service of V.O Technopromexport. He gas also referred to certain documents such as LOGO, Letter heads of V.O Technopromexport of USSR origin which were used by the present appellant. In support of his contentions he has also made a reference to certain orders.
8. I have considered the contentions and have gone through the record with the able assistance of the learned counsel for the parties. Since I would be making reference to certain orders of the learned trial Judge of the Sindh High Court in the suit filed by M/s. Bari Sons~{Pakistan) Ltd. Which led to passage of ex- parte decree dated 12.9.1995, out of which the present proceedings have arisen, I deem it proper to discuss whether this Court can go behind the decree. There is no denying of the fact that the Executing Court cannot go behind the decree unless the same is a patent nullity. If a decree has been passed by a Court of competent jurisdiction against a party having nexus with the subject in issue, certainly this bar would be attracted. However, every case has got its on peculiar facts. If a decree has been passed against a deed person or against a party which on the face of it has got no nexus whatsoever with the subject-matter and further no opportunity was provided to it, then in that eventuality the Executing Court can go behind the decree. In this approach I am fortified by the following judgments:
9. Muhammad Lal v. Abdul Qaddus (PLD 1975 Quetta 29) where a learned Division Bench observed as under: "Thus it is no doubt true that an Executing Court cannot go behind a decree but must execute it as it stands, yet when terms of a decree are ambiguous the Court may constrtie the decree to ascertain its precise meaning. For this purpose the Court is entitled to look into the contents of the original award and even the pleadings to ascertain the real nature of the relief and its extent."
10. Muhammad Ali and others v. Ghulam Sarwar and others (1989 SCMR 640) where it was held as under: "It is well-settled principle that the Executing Court cannot go behind the decree and has to execute it as it is unless the decree is patently a nullity."
11. In Brig. (Retd.) Muhammad Aslam Khan v. The Azad Govt, of the State of J&K, through the Secretary Forest Department, Muzaffarabad and another (1983 CLC 1204) it is observed that:- "Decree is nullity when passed by Court having no jurisdiction or a decree against dead person.
(Underline is mine).
12. In M/s. Haji Ahmad & Company v. Muhammad Siddique and others (PLD 1965 (W.P.) Karachi 293) a learned Single Judge quoted the judgment of Supreme Court of India in the case of Heera Lai Patni v. Siri Kali Nath (AIR 1962 S.C. India 199) holding that the validity of a decree can be challenged in executing proceedings if it is against a dead person or some such other ground taking effect of rendering the Court entirely lacking in jurisdiction in respect of subject-matter of the suit or over the parties to it. The observation of the learned Judge in the Supreme Court of India is as under:- "The validity of a decree can be challenged in execution proceedings only on the ground that the Court which passed the decree was laking inherent jurisdiction in the sense that it could not have seizen of the case because the subject-matter was wholly foreign to its jurisdiction of that the defendant was dead at the time the suit had been instituted or decree passed or some such other ground which would have the effect of rendering the Court entirely lacking in jurisdiction in respect of the subject-matter of the suit over the parties to it."
Reliance is also placed upon Ainuddin Bepari and others v. Banessa Bibi and another (PLD 1969 Dacca 658), Islamic Republic of Pakistan v. Muhammad Saeed (PLD 1961 SC 192), Abdul Malek Miah v. Moslemuddin (Mokleshuddin) Sheikh (PLD 1970 Dacca 743), Saifee Development Corporation Ltd., Karachi v. M.A. Karim (PLD 1974 Kar. 426), M/s. Capital Arm Islamabad v. National Development Finance Corporation (PLD 1996 Lah. 99) and Muhammad Aslam Siddiqui v. Mst. Haseena Begum (1986 MLD 735).
13. The present case is of its on kind and no direct precedent has been produced by the either party so as to attract this phenominal and extraordinary change taken place during the pendency of the suit before the learned trial Judge at Sindh High Court Karachi. Keeping in view the nature of this case, this Court has to go behind the decree so as to determine its executability.
14. The perusal of record demonstrates that suit No. 61-90 was filed by M/s. Bari Sons (Pakistan) Ltd.
On 15.1.1990 against VNESHNEE CONOMISHESKOJE OBJEDINENIJE TECHNOPROMEXPORT Moscow and two others. The present appellant/objector, namely, All Union Export-Import Association Technopromexport was not a party as it came into being after its registration on 27.7.1992 under Russian Civil Procedure Code read with section 51. M/s. Bari Sons (Pakistan) Limited he respondent was appointed as an agent by V.O. Technopromexport of USSR origin and letter or intent was issued by the said company for the grant of commission for promoting its interest in the installation of Guddu Thermal Power Station No. 3. In this regard certain agreements were entered into between these two in the year 1978.
15. Para 2 of the plaint of suit No. 61-90 filed at Karachi by respondent would also be relevant which is as under: "That the said defendants Nos. 2 and 3 at all material limes were and are accordingly responsible for the promotion, existence, floating, running and controlling of the business affairs/projects and commercial interests of defendant No. 1 in Pakistan being owners of all their assets and properties.
The said defendant No. 1 have been accordingly acting under the full direction and control of defendant No. 2 who are their owners/principal and further the assets, properties, funds business, commercial interests/transactions projects of defendant No. 1 belong to and are owned and run under the control of defendant No. 2. Defendant No. 3 represents defendant No. 2 and has its place of business/work at Karachi."
This shows that it was respondent's on case that V.O. Technopromexport of USSR origin as well as Union of Soviet Socialist Republic both were responsible for the payment of commission as the former was completely working in collaboration and under the control of the latter.
16. As already stated M/s. Muslim Shamim and Munir A. Malik, Advocates fried their power-of- attorney only for V.O. Technopromexport defendant No. I in the suit. A phenomenal change took place on the world map as Union of Soviet Socialist Republic was disintegration on 12.12.1991 and 15 independent States instead came into being. Subsequent to the disintegration the case proceeded before the learned trial Judge at High Court Karachi without any noticeable progress. It is pertinent to mention over here that the learned trial Judge of Sindh High Court on the refusal from Soviet side to accept summons directed the Attorney General of Pakistan through order dated 28.3.1993 to appear in the case and argue if a statement can be filed and maintained against defendant USSR or its successor. However, from the record it is not reflected whether the Attorney General of Pakistan or his nominee ever appeared at any stage to clarify these points.
17. Again through order dated 2.5.1995 learned trial Judge directed the plaintiff/respondent Bari Sons (Pakistan) Limited to implead successor of USSR. The interim order dated 2.5.1995 was to the following effect: "According to this letter, defendant No. 2 has refused service of the summons on the ground that it enjoys the sovereign immunity and this Court has no jurisdiction against it. Defendant No. 2 is Union of Soviet Socialist Republic and defendant No. 3 is Consulate General of Union of Soviet Socialist Republic. Since the Union of Soviet Socialist Republic does not exist any longer, it would be necessary to amend the plaint by impleading successor to it. Mr. Munshi states that he will make necessary application in that regard. The question of service of summons upon the successor will be considered after they are impleaded as party. The letter stands disposed of."
The case was accordingly adjourned to 22.5.1995. Again on the adjourned date i.e. 22.5.1995 while rejecting the plea of reference to arbitrator on an application file by the defendants in the suit under section 34 of the Arbitration Act, the learned Judge approved the argument of Mr. Aziz A.
Munshi that all the defendants in the suit were accepting the liability of payment of commission to the plaintiff/respondents, as such, question of reference to Arbitration would not arise particularly in view of the recent development taken place since the institution of the suit as it was not certain whether the body to which the dispute was to be referred was in existence because USSR has now ceased to exist. However, inspite or existence of the aforesaid situation the learned Judge after dismissing the application for reference to the Arbitration directed the defendants to file written statement within four weeks for final disposal.
18. The suit again was taken up by the learned trial Judge on 3.9.1995 in the absence of the defendants or their counsel and the learned Judge debarred them from filing written statement as the direction earlier given on 22.5.1995 mentioned above were not complied with. The case was accordingly adjourned to 12.9.1995 by way of ex-parte proof on the part of plaintiff/respondent.
19. The case was taken up on 12.9.1995 on which date respondent Bari Sons (Pakistan) Limited moved an application under Order 1 Rule 10 read with section 151 CPC for the deletion of defendants No. 2 and 3 in the suit i.e. USSR and Consulate General of USSR. The learned trial Judge of Sindh High Court without giving any notice of the said application deleted them and decreed the suit on the same day. It is worth mentioning over here that in the application under Order 1 Rule 10 no reason was advanced by the plaintiff/respondent for the deletion of said defendants and the suit was decreed. Further more this application from the respondent's side, for deletion of defendants in the suit was given by M/s. Bari Sons (Pakistan) Ltd. After the receipt of application by Mr. Muslim Shmim, Advocate on 24.8.1995 wherein he has prayed that to clear the clouds, a notice to the foreign office be given as he got no instructions after disintegration of USSR.
20. It is pertinent to mention over here that an application dated 18.5.1995 was given by the learned counsel Mr. Muslim Shamim that with disintegration of USSR all the defendants in the suit ceased to exist. A prayer was made by him that a notice be issued to the foreign office so that the successor State may be able to defend the suit. A copy of this application was received by the plaintiff/respondent on 24.8.1995 but no further steps were taken towards the resolution of this controversy.
21. The learned Executing Court as reflected from the impugned order rejected the objection of the appellant and held it liable holding that the appellant succeeded to the liabilities of V.O.
Technopromexport of USSR origin. It not only used its letter heads, LOGO office premises, telephone etc. But also retained some of its employees. A reference in the impugned order has also been made that two senior Advocates were appearing in the case from the side of defendants in the suit. The learned Executing Court in order to reach at decision decided to entertain and look into all the certified copies of the record/documents produced by either of the parties. Objection raised about the admissibility of those documents were therefore, over ruled by him (Under line is mine).
Since the learned Executing Court decided to take into consideration all the certified copies/documents produced by the parties, as such, I have also followed that course of. Action.
22. I am sorry to hold that the learned executing Court did not take into consideration the documents produced by the parties in its proper perspective. The present appellant inspite of its incorporation on 22.7.1993 was never impleaded in the suit. It must be stated over here that on the eve of disintegration the only pending matter between USSR and Pakistan was Multan Thermal Project at Muzaffargarh, the contract of which was earlier taken by V.O. Technopromexport of USSR origin. It is wrong to say that the liability of the Multan project was taken over by the appellant. It is liability as the documents demonstrates did not devolve upon the appellant automatically. Explicit steps were taken by both Pakistan and Russia through exchange of protocol agreement to up keep the commissioning of the project. In this regard reference to understanding through letter dated 2.11.1993 both the Russian and Government of Pakistan would be relevant. The understanding reached at between the two countries as reflected from the same was only regarding the earlier agreement entered into between Union of Soviet Socialist Republic and Government of Pakistan on 16.12.1983 on economical and technical co-operation. The understanding reached between the two countries is as under:
(1) The Government of the Russian Federation Assumes rights and obligations of the Soviet side on the agreement between the Government of the Union of the Soviet Socialist Republic and the Government of the Islamic Republic of Pakistan dated December, I6 1983 on economic and technical co-operation.
(2) All references in the above agreement to the Union of the Soviet Socialist Republic the Soviet Union of USSR Soviet Organizations and Soviet Specialist have to be interpreted as relating to the Russian Federation, Russian Organization and Russian Specialists.
(3) All other terms and conditions of the above agreement stand valid and will be implemented by both Russian and Pakistani sides."
23. It must be pointed out here that credit agreement dated 16.12.1983 worth U.S. 277 Million Dollars was signed between Government of Pakistan and the then Government of Union of Soviet Socialist Republic qua the construction of Thermal Power Station with a capacity of 630 M.W/3 power Units of 210 at Multan by V.O. Technopromexport of USSR origin. Had the appellant/objector being the same party as judgment debtor i.e. V.O. Technopromexport of USSR origin then the necessity of exchange of agreement of understanding between Islamic Republic of Pakistan and Russian Federation per protocol agreement dated 2.11.1993 was not necessary. In the presence of aforesaid understanding how it can be stated that the liability qua the commissioning of Multan Thermal Power Station at Muzaffargarh automatically devolved upon the appellant.
24. The amount attached by the learned Executing Court pertains to Multan Thermal Project at Muzaffargarh which as stated has been kept alive by virtue of agreement of understanding dated 2.11.1993. This' amount has got no nexus whatsoever with the Guddu Thermal Project completed in the year 1980 by V.O. Technopromexport of USSR origin. The commission claimed by respondent Bari Sons (Pakistan) Ltd. Was respecting contract qua the installation of Guddu Thermal Project entered into between WAPDA and V.O. Technopromexport of USSR origin in the year 1978. The plaintiff/respondent also entered into contract with V.O. Technopromexport of USSR origin in the year 1978 for rendering help for installation of the project for which the latter undertook to pay commission. The appellant was not at all in existence at that time. As already stated it came into being on 27.7.1993 after its incorporation under Russian law.
25. The argument that the appellant used for a considerable time the letter heads. LOGO, Office telephone, cars, and premises would not make it liable when the witnesses have stated that the letter heads were used under mistake. The situation was so much fluid after disintegration of USSR that it took some time to settle it down. The appearance of-the learned counsel alter disintegration of USSR was not such a factum which could have placed all the liabilities of V.O. Technopromexport of USSR origin upon the appellant particularly so when after disintegration of USSR the counsel's power-of-attorney comes to an end. Reliance in this respect is placed upon Mst. Iffat Maqsood and 2 others-v. Rehmat Ali (PLD 1990 Lah. 359) where it was held that with the death of the client, the power-of- attorney comes to an end. As reflected from the above resume even the lawyers gave an application which was received by the respondent/decree holder when they had stated that they had no further instructions after the disintegration. In this extraordinary situation the argument of the learned counsel for the respondent that the discharge should have been obtained by the learned counsel under Rule 50 of Sindh Chief Court Rules, Chapter IV of his release would not be attracted Rule 50 of Sindh Chief Court Rules is as under:
50. An advocate on record in a suit or matter desiring to obtain an order - for this discharge, shall first give notice of his intended application for discharge to his client and the fact of such notice having been served shall be stated in the affidavit in support of such application. "
Here in this case due to the disintegration of USSR on 12.12.1991 learned counsel Mr. Muslim Shamim could not have given notice to his client i.e. V.O. Technopromexport of USSR origin. In these circumstances I am of the view that provisions of Rule 50 ibid would not be attracted to the facts of the present case. Reliance is placed upon Barkat Rai and others v. Mst. Ghulam Fatima (AIR 1921 Lah. 219) where it was held that:- "Death of judgment debtor during appeal-Legal representatives not brought on record-Admission of appeal is 'nullity against them.
Where during the pendency of an appeal by a decree holder one of the judgment debtors dies and his legal representatives were not brought on the record.
Held, that an ing the appeal is, so far as that judgment debtor's legal representatives are concerned, a nullity."
Reference be also made to Chilya Corrugated Board Bills Ltd. r. M. Islail and another (1992 CLC 2524) where a learned Single Judge observed as under: "There is no denying of the legal proposition that in order to succeed a claimant before a Court of law has to independently establish his rights and cannot succeed in obtaining a decree solely on .
The basis of the weakness, lacunas or even total absence in or of the defence."
26. Even if the argument of the learned counsel for the respondent is accepted that it was mere a change of refix as the word Technopromexport remained common in both the companies and this change of prefix was due to the fact that after disintegration of USSR on 12.121991 the words All Unions, have to be dropped. The new company was not at all impleaded after its incorporation under Russian Law on 27.7.1992. The ex-parte decree is against USSR Company and only at the time of execution the word "Soviet" was deleted and the appellant throughout in the suit remained un- represented.
27. Resultantly for what has been above the appeals are accepted with no order as to costs. In order to secure the interest of the parties it is directed that the attached amount shall not be released within one month of this judgment so as to enable the parties to avail the remedy provided under the law.