1. ' This appeal arises out of order passed by the learned 1st Senior Civil Judge, Sukkur, dated 16-8- 1990 in Execution Application No,3 of 1998 arising out of 1st Class Suit No,161 of 1984.
2. ' Brief facts as are necessary for the purpose of disposal of this appeal are that the respondent No,1 namely Dr: Abdul Rasheed Pirzada (since deceased) filed a suit for the recovery of unpaid bills for medical treatment and services provided to the workers and staff of the respondent No,1 as per rates agreed in the appointment letter. It was the case of the respondent No,1 that since 1981 the appellant started creating hinderances in the clearance of bills of respondent No,1 for the services rendered, as such, the, respondent No,1 was constrained to fill a Civil Suit No,102 of 1993 for the recovery of amount due and outstanding. Suit was decreed on 8-3-1984 and the appellants made the payment under the decree.
3. ' That while the suit referred to above was pending other bills also accumulated and the appellant required him to await the result of the suit for consideration of the other bills but to no avail and the respondent No,1 through legal notice, dated 25-3-1984 demanded the outstanding amount of the left over bills but despite legal notice amount was not paid. Consequently respondent No,1 filed another Suit No,161 of 1984 for the recovery of Rs,24,041.62 and further prayed for the payment of outstanding unpaid bills.
4. ' The suit was contested by the appellant and was decreed on merits on 28-9-1987 for Rs,18,589.31 and appellants were further held liable to pay bills after July, 1981 upto 1st October, 1982.
5. ' After the judgment and decree, dated 28-9-1986 respectively no appeal was preferred. Later on the appellants paid the amount of Rs,18,589.30 to the defendant No,1 but did not pay the amount of bills for the period after July, 1981 up to October, 1982 as was ordered in the later part of the decree referred to above. On failure of the appellants to pay outstanding amount the respondent No,1 filed an Execution Application No,3 of 1998 under section 47, C.P.C. Since the amount was not worked out by the Trial Court the Executing Court in order to determine the outstanding amount appointed a Commissioner and on the basis of the Commissioner's Report the Executing Court further directed appellant to pay a sum of Rs,91,523.69 in addition to Rs,30 as a cost to the respondent/decree- holder vide order, dated 16-8-1990, It is against this order the instant appeal has arisen.
6. ' The learned counsel for the appellant contended that the decretal amount as ordered by the Court was paid and nothing was due and outstanding, as such nothing was left to be determined, secondly, the Executing Court by ordering payment of Rs,91,523.69 in fact exceeded the amount of decree which was not contemplated under the provisions of section 47, C.P.C., and lastly he contended that the court-fee has not been paid, as such the execution application ought to have been dismissed.
7. ' Learned counsel for the Decree Holder on the other hand, supported the orders and contended that the Executing Court has rightly determined the amount disputed by the appellant/judgment- debtor. In relation to the court-fee, he submits that respondent is prepared to pay the same if it is found payable. He has raised objection to the very maintainability of this appeal before this Court.
8. According to him the appeal lies before the District Judge and not before the High Court as the valuation for the purpose of suit was less than Rs,25,000.
9. ' I have heard the arguments of the learned counsel and perused the record and order impugned herein.
10. ' First I propose to dispose of the objections as to maintainability of appeal before this Court raised by the respondent.
11. ' The learned counsel for the respondent argued that the valuation of the original suit was less then Rs,25,000 as such appeal would lie to the District Court and not to High Court. He has referred to section 2(b) and section 18 of the Civil Courts Ordinance, 1962 which provides that the value usedwith reference to a suit means the amount or value of the subject-matter of the suit. Instant suit was filed by the respondent No,1 on 20-10-1984 for the recovery of Rs,23,641.62 and further amount, outstanding in respect of bills from October, 1979 to October, 1982 and since at the time of institution of the suit the other amount was not worked out by the plaintiff nor was, determined by the learned Trial Court and was left to be determined by the Executing Court, vide judgment, dated 28-9-1986 which later amount was ultimately determined by the Executing Court as Rs,91,523.69 as such for all intended purposes the valuation of the suit worked out to be Rs,1,15,165.31 which amount was more, than the pecuniary jurisdiction of the District Judge as provided under section 18 of the Civil Courts Ordinance, 1962. The pecuniary jurisdiction of District judge at the relevant time was Rs,50,000 A only, which limit was enhanced to Rs,2,50,000 by virtue of amendment made in section 18 of the Civil Courts Ordinance, 1962 on 22-2-1992 and the instant appeal was filed on 15-11-1990, therefore, the objections of the appellants are not sustainable.
12. ' Now I propose to deal with the contentions of the learned counsel for the appellant on merits. The first contention of the learned counsel for the appellants is that the decretal amount as ordered by the Court was paid and no amount was due and outstanding. According to him nothing was left to be determined by the Executing Court and Executing Court has erred in undertaking the exercise of calculation of the amount and has, thus, transgressed its jurisdiction. The learned counsel for the respondent submitted that the amount of the unpaid bills under second part of decree was to be paid by the appellant/judgment-debtor and the Executing Court has rightly determined the amount and has passed the order for payment of the same.
13. 'The execution application was filed under section 47, C.P.C., which is a complete code in itself in relation to the execution of a decree wherein it has been provided that "all questions" arising between the parties to the suit, relating to the execution, discharge or satisfaction of the decree shall be determined by the Executing Court and in the instant case the executing Court has merely executed the decree whereby it was ordered that, "the defendants are directed to make payment of Rs,18,589.31 to the plaintiffs and are also directed to make payment of any other bill, if any, after July, 1981 up to 1st October, 1982, of which payment has not been made".
14. ' As noted above, the earlier part of the decretal amount was paid by the appellant and it was against the later part, which was not determined by the Trial Court same was admittedly not paid by the appellant, consequently the execution application was filed. The orders implementing later part of the decree has been challenged herein.
15. ' The Executing Court, cannot go behind the decree, admitted position is that the appellant, herein never challenged the judgment and decree, same cannot be allowed to be challenged now.
16. ' The objections that were being raised resisting execution were not available to the appellant as all the controversy in relation to exercise of calculation was within the domain of the Executing Court and use of phrase "determine all questions" includes determining the amount recoverable after taking accounts and since the amount was not calculated by the Trial Court the same was rightly undertaken by the Executing Court by appointing a Commissioner to calculate the same and both the parties laid their respective claims before the Commissioner, who verified the same and had worked out the unpaid amount of the bills.
17. ' It was not the case of the appellant that the said disputed bills were paid, only defence offered before the Trial Court was that said bills were not available in their record.
18. ' It is pertinent to point out that the appellant herein has neither questioned the appointment of the Commissioner nor has raised any objection as to the manner of calculation or the figure worked out by the Commissioner. As such, it cannot be said that the Executing Court has stepped over its jurisdiction. Section 47 of C.P.C., armour's the Executing Court, with powers to determine effectively all the questions raised by the parties; to achieve such object the Executing Court can investigate facts, taking evidence, if need be, and to undertake exercise of calculation by itself or, through qualified person, the amount due and payable under the decree, so as to execute the decree in letter and spirit. Such powers are conferred to avoid multiplicity of proceeding, to foster cause of justice and to suppress mischief.
19. ' Learned counsel for the appellant lastly contended that the decree is not executable as the respondent has not paid the court-fee on the entire amount which according to him worked out to be Rs,1,15,165.31 as according to him said amount attracts the payment of the court-fee. Learned counsel for the respondent No,1 submitted that if at all he is liable to make payment, he undertakes to pay the same.
20. 'As has been held above, the value for the purpose of the suit is not only the amount that has been specifically mentioned by the respondent No,1 but is also the amount which was not calculated and was worked out later by the Executing Court for all intents and purposes would be actual value relevant for determining the forum of appeal, same would also be equally relevant for the purpose of payment of the court-fee, it is accordingly ordered. The respondent No,1 is directed to pay court- fee on the total valuation i,e, Rs,1,15,165.31 within one month from today.
21. 'The order passed by the learned Executing Court in Execution No,3 of 1986, dated 16-8-1990 is based on sound proposition of facts and law, does not warrant any interference.
22. 'Above are the reasons for the short order recording dismissal of the appeal, dated 17-9-1999. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.