JAVED IQBAL, J.-- By this common judgment we propose to dispose of Civil Appeals Nos. 747 to 750 of 1995 having arisen out of the common.
2. Briefly stated the facts of the case are that appellants obtained contract work from Communication and Works Department which was completed in 1960. As a result of some differences/controversy regarding payment the learned District Judge appointed a sole-arbitrator by means of order dated 18.6.1974 who filed his award which was made rule of the Court vide order dated 23.3.1977. Being aggrieved the appellants challenged the same before High Court but appeals were dismissed subject to some modification and simple interest at the rate of 6% per annum from the date of decrees was also awarded. The appellants approached this Court but met the same fate and leave to appeal was refused by means of order dated 5.5.1986 and consequently the judgment/decree of learned High Court dated 4.11.1985 attained finality. The appellants, however, filed execution proceedings before learned Civil Judge, Quetta and meanwhile the Provincial Government paid the principal amount and simple interest at the rate of 6% per annum as determined by the learned High Court by means of judgment/decree dated 4.11.1985. The said judgment of High Court was, however, disputed and a controversy was raised regarding its interpretation which was decided on 6.10.1991 and it was held by the executing Court that the appellants were entitled to simple interest at the rate of 6% per annum on the principal amount from the date of decree. The appellants once again approached the learned High Court of Baluchistan by means of civil revision bearing Nos. 19 to 22 of 1988 which were accepted on 13.6.1988 and the matter was sent to newly created District of Loralai which ultimately was decided on 13.4.1989 by the learned District Judge by whom the judgment /decree dated 4.11.1985 passed by learned High Court and attained finality was modified substantially. The Province of Baluchistan through Secretary Communication and Works Department, Quetta, (respondent) preferred appeal by assailing the order dated 13.4.1989 of learned District Judge, Loralai which were accepted by means of impugned judgment, hence these appeals.
3. Mr. M. Riaz Ahmed, learned AOR on behalf of petitioner remained absent and no intimation whatsoever was received but instead dismissing the appeals in default we intend to dispose of them on merits as it would be in the interest of justice.
4. Heard Mr. Muhammad Ashraf Tanoli, learned Advocate General Baluchistan on behalf of respondent at length. We have also carefully examined the contentions as mentioned in the memo. Of appeals. The entire record has been thrashed out with eminent assistance of learned Advocate General Baluchistan. The judgment dated 4.11.1985 passed by learned High Court of Baluchistan, order of this Court dated 5.5.1986 and the order dated 13.4.1989 of District Judge Loralai were perused with care and caution. After having gone through the entire record the pivotal question which needs determination is as to whether a judgment and decree passed by the High Court duly concurred by this Court and after attaining finality can be modified, changed or any deletion, insertion or addition can be made by the learned executing Court? The said question can only be answered in negative. It is an admitted feature of the case that the learned High Court of Baluchistan had rejected the appeals preferred by the appellants by means of judgment/decree dated 4.11.1985 and relevant portion whereof is reproduced herein below for the sake of convenience: "Respectfully following the law laid down by the Supreme Court I find no substance in the contention raised by the counsel for the appellants. The respondents money remained blocked for so many years and as the value of money has considerably gone down they deserve to be compensated in all fairness. I would accordingly allow simple interest at the rate of 6% per annum from the date of the decrees in question and such amount shall be calculated and added to the decretal amounts. The decrees shall accordingly be modified to this extent."
5. It is also an admitted feature of the case that petitions for leave to appeals were preferred by the appellants but with no avail and rejected by means of order dated 5.5.1986 and the operative portion whereof is as follows:- "4. We have examined the above contention alongwith those enumerated in the aforementioned petitions and find that none of those contentions had been set up in this defence, nor raised before the first appellate Court. The Petitions themselves have submitted to the arbitration by not producing any evidence. Thus we find no substance in these petitions. There is no reason to interfere with the impugned order and all the four Civil petitioners for leave to appeal Nos. 6 to 9/Q of 1986 are dismissed."
6. An in depth scrutiny of the entire record would reveal that judgment/decree passed by learned High Court on 4.11.1985 had attained finality and furthermore the modification as allowed vide said judgment/decree was free from any ambiguity and accordingly the question of any clarification by the executing Court does not arise. The learned executing Court has modified the decree which had already attained finality by means of order dated 13.4.1989 which is reproduced herein before for ready reference:- "11. Any how the decree holders have been paid some amounts during the proceedings of the execution which fact is not to be treated as an estoppel, claiming his rights which has been persistently perused being the amount of interest during the execution proceedings.
12. I may safely hold that the decree holders are entitled to the awarded amount-work plus interest awarded added thereto from 1960 to the date of application with the rate of interest given in the award and till the date of the decrees dated 21.5.1977 and thereafter till the realisation of the whole decretal amount at 6% per annum with simple interest. The objections of the judgment-debtor and the application of the decree holder in this behalf are disposed of and be consigned to record."
A bare perusal would reveal that "simple interest at the rate of 6% per annum from the date of decrees" as awarded by learned High Court vide judgment/decree dated 4.11.1985 was substituted by holding that "the decree holders are entitled to the awarded amount, work plus interest awarded added thereto from 1960 to the date of application with rate of interest given in the award 'and till the date of the decrees dated 21.5.1977 and thereafter till the realization of the whole decretal amount at 6% per annum with simple interest." The said substitution or drastic amendment could not have been made by the learned executing Court which in fact amounts to a futile attempt to frustrate the object of judgment and decree dated 4.11.1985 which had already attained finality and thus the order dated -13.4.1989 passed by learned District Judge Lorelei (executing court) is arbitrary, capricious and coram-non-judice. It worth mentioning that executing Court could not go beyond the degree. It is well settled-now that "when decree passed attained finality it had to be executed even if it was erroneously passed. Executing a Court cannot rectify any mistake in decree which would tantamount to going behind decree." (Messrs Haji Ahmed and Co. v. Muhammad Siddique and others (PLD 1965 Kar. 293, Ghanaya Lal and others v. Punjab National Bank Ltd., Lahore AIR 1932 Lah. 534 and Abdul Kha/iq v. Haji PLD 1983 Lahore 445).
A similar proposition was discussed in case titled Topanmal v. Kundomal Gangaram (AIR 1960 Supreme Court 388) that "the executing Court could not go behind the decree and give relief to the plaintiff which was expressly denied to him in the suit. A Court executing decree cannot go behind the decree; it must take the decree as it stands, for the decree is binding and conclusive between the parties to the suit." In fact the original judgment/decree dated 21.5.1977 was passed by the same District Judge in the capacity as Civil Judge and, therefore, the controversy should not have been resolved by him which aspect of the matter has been ignored for the reason best known to the learned District Judge himself.
7. Admittedly the appeals were filed with a delay of 45 days but in view of the chequered history of the case and order of the executing Court which is not only coram-non-judice but nullity in the eyes of law and thus the delay has rightly been condoned because under the garb of limitation blanket authority cannot be given executing Courts to modify the decrees passed by the Appellate Courts which would not only be contemptuous but amounts to misconduct. The order or learned District Judge Loralai being coram-non-judice, capricious passed in abuse of power and authority has rightly been set aside by the learned High Court after having taken into consideration all the relevant factors. The conclusion as arrived at by the learned High Court being unexceptionable hardly calls for any interference. It has rightly been observed by the learned High Court that "never-the-less for appreciating crucial point of limitation, it needs to ascertain whether impugned judgment of the executing Court (District Judge, Loralai) dated 13.4.1989 is in-consonance with or deviates from above referred judgment of High Court dated 4.11.1985. It may be seen that High Court while modifying the decree passed by the trial Court had observed that respondent/decree holder would be entitled to the interest at the rate of 6 percent per annum from the date of decree in question, and such amount shall be calculated and added to decretal amount. Factually award dated 6.6.1975 proposed payment of amount against work done and interest from year 1960 at 6% per annum with six monthly rests to the date of application.
The Trial Court rejected objections raised by. Appellant and made said "Award" rule of the Court.
Additionally respondent was granted interest at 6% per annum with quarterly rests from the date of application till realization of whole decretal amount. Whereas said decree was expressly modified by High Court vide judgment dated 4.11.1985 awarding merely simply interest at the rate of 6% per annum from the date of decree in question which was obviously passed in May/July, 1977. The amount of interest on calculation was to be added to decretal amount. Consequently it is apparent that on modifying the decree, not only rate of interest has been charged, but period for which interest was payable is specified from date of decree onwards. In this respect obviously the executing Court had exceeded its authority and gone beyond the decree which stood modified by judgment of High Court dated 4.11.1985." It was further observed that "void orders need to be challenged within prescribed period of limitation, unless extraordinary exceptional position is reflected from proven facts. Never-the-less it would be obligatory-to ensure that judgment dated 4.11.1985 passed by High Court and up-held by the Supreme Court, which is factually being executed may not be rendered nugatory by any subordinate forum in the garb of interpretation.
The entitlement of respondent to receive principal amount and interest is explicitly regulated by above-referred judgment whereby all previous decision of subordinate forums stand completely.
Merged into decree so modified. Therefore, in the peculiar special circumstances if purely hyper- technical view is taken, 1 am afraid basic judgment of High Court dated 4.11.1985, which undisputedly hold the field would become ineffective and inoperative on account of impugned order passed by executing Court. Even otherwise glaring infirmity and blatant disregard manifested from impugned judgment of executing Court, cannot be conveniently over-looked and permitted to perpetuate . Respondent/decree holder himself claims implementation of judgment and decree dated 4.11.1985 awarded by High Court. Therefore; by erroneous interpretation he cannot be granted payment beyond said decretal amount. It is well settled that when essential feature for assumption of jurisdiction are contravened or forum exercises powers not vested in it, or exceeds authority beyond limits prescribed by law, the judgment is rendered coram-non-judice and inoperative. The question regarding bar of limitation in such exceptional cases looses significance. For authority reference can be made to observation in cases:--
(i) Atta Muhammad Qureshi v. The Settlement Commissioner and others (PLD 1971 SC 61).-
(ii) Mrs. Zubaida Begum v. Mrs. S. T. Naqvi (1986 SCMR 261).
(i.e) Malik Khawaja Muhammad and others v. Marduman Babar Kahol and others (1987 SCMR 1543).
(iv) Haji Muhammad Moosa and another v.. Provincial Government of Baluchistan through Collector Khuzdar (PLJ 1987 Quetta 92).
Since impugned decision of executing Court conflicts with judgment of High Court dated 4.11.1985 clearly contravening settled principles of justice and spirit of law, therefore, same is coram-non- judice and devoid of lawful authority. Thus in the peculiar circumstances bar of limitation would not apply, and delay in filing appeal for the above reasons is condonable. Accordingly I am inclined to exercise discretion in favour of appellants by granting request concerning condonation of delay."
The observations as reproduced herein above is strictly in accordance with relevant provisions of law, settled norms of justice and precedented law which cannot be disturbed without any lawful justification which is altogether lacking in this case.
8. In the light of what has been discussed herein above these appeals being devoid of merits are dismissed.