1. This suit has been filed by the plaintiff for declaration, injunction and cancellation. The plaintiff has prayed that a declaration may be given to the effect that there is no sum due and payable to the defendant No.1 and the decree, dated 14-12-1998 has been satisfied. He has also prayed that the defendant No.2 may be restrained from recovering US $ 44,000 under the Guarantee No.692/0525 which was given for US $ 237,550.
2. Briefly the facts of the case are that a dispute had arisen between the plaintiff and defendant No.1 for the supply of tin plates and the matter was referred to arbitration when a bank guarantee was given by the plaintiff in the sum of Rs.40,92,245. The award was filed in this Court for making a rule of the Court. The objections to the award were fixed for hearing before my learned brother Rasheed Ahmed Razvi, J., who after hearing both the sides decreed the matter on 14-12-1998 for Rs.40,92,245 with interest at 12%. In compliance of the said decree the plaintiff by their letter, dated 14-1-1999 remitted the sum of Rs.40,92,245 plus interest of Rs.34,680 calculated at 12% from 14-12-1993 to 8-1- 1999. After making the said payment the plaintiff demanded from the defendants the return/discharge of the bank guarantee in spite of repeated reminders. The defendant No.1 who are in possession of the original bank guarantee are demanding now an amount of US $ 44,000 as mark-up. According to the plaintiff since the entire amount has been paid up including the interest as per the judgment and decree, therefore, no further amount is due and payable and the plaintiff is entitled to the return of the bank guarantee for cancellation.
3. The written statement has been filed in this case whereafter objections had been raised by the defendant No.1 as regards the maintainability of this suit. On the other hand, the plaintiff had also moved an application under Order XXXIX, Rules 1 and 2, C.P.C. for restraining the defendants Nos.1 and 2 from enhancing the bank guarantee till as such time the suit is decided. Against this application the defendant No.1 has filed their counter-affidavit and a rejoinder has also been filed and during the course of hearing and upon the instance of the defendant No.1 a preliminary issue was framed as regards the maintainability of the suit.
4. At the time of hearing of this suit the counsel appearing for the defendant No.1 has insisted that the suit is barred under section 47, C.P.C. In support of his contention he has relied upon PLD 1965 Pesh.
5. 108, PLD 1986 Lah. 912 and AIR 1930 PC 86. According to the counsel for defendant No.1 this suit is not maintainable as instead of filing a separate suit the counsel should have moved a proper application before the Court which had passed the decree pointing out that the amount had been paid and, therefore, the bank guarantee should be discharged. The bare reading of section 47, C.P.C. states clearly that all questions arising between the parties to the suit in which the decree was passed or their representative and relating to the execution discharge or satisfaction of the decree shall be determined by the Court, executing the decree and not by a separate suit. It further goes on to state that the Court may subject to any objection as to limitation and jurisdiction treat a proceedings under a section as a suit or a suit as a proceedings and may if necessary order payment of any additional court-fee.
6. The prayer in the suit does relate to the discharge of the decree which would definitely bring it within the ambit of section 47, C.P.C. but it also deals with another aspect and that is seeking a restraining order against the defendant No.1 from recovering US $ 44,000 from the bank under the bank guarantee given by the plaintiff.
7. It is clear that for the interim period what the plaintiff is seeking is a restraining order against the defendant No.1 from encashing the bank guarantee. However, if according to the plaintiff the amount had been paid in full then the proper course open for him is that he should have moved a simple application before the Court which decreed the matter and seek discharge of the bank guarantee after pointing out that the amount of decree had been paid and satisfied. At the out set a statement has also been made by the defendant No.1 against the defendant No.2 demanding payment of US $ 44,000 out of the bank guarantee executed in this case. Accordingly the proper course for the plaintiff would be to move a proper application for discharge in the suit and in case if they want to safeguard the encashment of the bank guarantee then they should file an application for being made a party to the proceedings in the suit filed by the defendant No. 1 .