' Facts giving rise to this civil revision are that in a suit filed by Syed Tajamul Hussain and others a consent decree in the sum of Rs,7,040 was passed on 12-2-1980 in favour of the plaintiffs/petitioners. According to the terms of the said decree the defendants/respondents had to pay Rs,2,000 uptil 1-6-1980 and subsequently to pay sixteen instalments of Rs,300 each upon the first day of each succeeding month. The last instalment would be of the amount of Rs,240 only. It was stipulated that in case of non- payment of any instalment the defendants/respondents shall be liable to vacate the house in question and in that event the decree shall be considered to be a decree for possession.
2. The petitioner/decree-holder filed an execution petition on 2-2-1983 for the recovery of the amount of Rs,7,040. On 19-3-19$3, an application was filed on behalf of the judgment-debtors to deposit an amount of Rs,840 only as according to him the remaining amount of Rs,6,200 had already, been deposited. The said application was allowed by the said executing Court. It also transpired that a refund voucher in the sum of Rs,6,500 was issued in the name of the petitioners/decree-holders on 3-7-1982, which amount could not be paid to the petitioners. During the execution petition the petitioners contended that as the respondent has committed default in the payment of the decretal amount as per the decree, dated 12-2-1980, the decree-holders had become entitled to the possession of the house.
3. The learned Executing Court came to the conclusion that the judgment-debtors had deposited a sum of Rs,7,640 up to March, 1983 and that on 3-7-1982 a refund voucher amounting to Rs,6,500 was also issued which, according to order of the executing Court the same was lost by the bank concerned. It was the considered opinion of the executing Court that although there was some delay in the payment yet it was neither deliberate nor continumacious. It was also observed that entire amount under the decree had been deposited. The request of the petitioners for possession was not considered equitable and was thus rejected.
4. The petitioners filed an appeal under section 104, C.P.C., wherein, it was prayed that as the decree-holders were entitled to the possessing of the house,' the decree, dated 12-2-1980 may be executed to this effect. The learned District Judge, Bahawalpur vide judgment, dated 20-12-1983 did not find any merit in the contention of the decree holders. The learned District Judge held that the decree holders had prayed only for the recovery of decretal amount in their execution petition and specifically requested for the attachment of the property of the judgment-debtors for the recovery of the decretal amount. As the said amount was deposited by the judgment-debtors without the attachment of property, the appellate Court concurred with the findings of the trial Court that the petitioners/decree holders were not entitled for the possession of the house and that the decree holders may be paid the deposited decretal amount through refund voucher. The appeal was thus dismissed. In this civil revision the learned counsel for the petitioner has contended that the overriding principle is that the executing Court is bound to execute the decree as it is. It cannot question the decree. The reliance is placed upon the case of Mst. Shamim Akhtar and four others v.
Shalimar General Insurance Company and 2 others 1984 SCMR 22 and Ali Hussain v. Rafiq-ud-Din and 9 others PLD 1977 Lahore 418 in support of the above contention. The learned counsel also placed reliance upon the provisions of Order 21, rule 17 to submit that the executing Court is bound to ascertain whether requirements of Order 21, rule 11 (2) were complied with and if there was any defect it can be rectified. He relies on a case of Popular Industries Commercial Agencies v. Khair Pur Textile Mills. PLD 1972 Karachi 617.
5. I am afraid none of these contentions are sustainable. Firstly, the decree, dated 12-2-1980 is basically a decree for recovery of amount mentioned therein. Even if there was any delay in the deposit of instalments both the learned executing Court and the first appellate Court did not consider this default to be a deliberate or contumacious default which could entail the consequences of converting the decree for recovery of money into that of decree for possession of the house. Secondly, it is evident from the execution petition itself that the decree holders only claimed the payment of the decretal amount and also prayed for the said recovery even through attachment of the property of the judgment-debtor.
6. There is no cavil with the legal proposition that a decree must be executed as it is. However, both the lower Courts were correct in concluding that the basic decree was that of recovery of money and as there was no contumacious default in the payment of instalments it could not be converted into the decree for possession. The other argument of the learned counsel for the petitioners that under Order 21, rule 17 it was the duty of the Court to have corrected any mistake in the execution petition, suffice it to say that there was no mistake in the execution petition as the petitioners themselves consciously opted for execution of the decree through recovery of money only.
Reliance placed on the case of Popular Industries Commercial Agencies. v. Khairpur Taxtile Mills Ltd.
PLD 1972 Karachi 617 is of no avail to the, petitioners. The concurrent findings of both the Courts below do not suffer from any legal infirmity which even otherwise appears to be just and equitable.
7. As a result the revision petition is dismissed.