' MUHAMMAD MUJEEBULLAH SIDDIQUI, J.---The petitioner, State Life Insurance Corporation, has sought declaration that they are entitled to recover the dues outstanding against the respondents Nos. 1 to 3 as arrears of land revenue, through the revenue authorities and the refusal of the revenue authorities to recover the Government dues and proceed under the Land Revenue Act, 1967, against the respondents 1 to 3, is without lawful authority. The petitioner has sought issuance of writ to the respondent No,4, commanding to recover the dues of the petitioner from the respondents 1 to 3 under the relevant provisions of Land Revenue Act, 1967.
' The facts giving rise to this petition as contained in the Memo. Of Appeal are that in the year 1968 the respondents 1 to 3 obtained loan of Rs, 200,000 from Ideal Life Assurance Corporation (hereinafter referred to as the *ILACO). The respondents 1 to 3 as a security for repayment, executed and delivered to ILACO the memo. Of deposit of Title Deed, in respect of their immovable property by way of creating first equitable mortgage. The respondents 1 to 3 failed to pay loan and the interest with the result that the mortgagee/ILACO filed the suit on the original side of this Court being Suit No,205/1971 for recovery of Rs,259,128.42, which was decreed. On 6-10-1972, a preliminary decree was passed under Order 34, Rule 4, C.P.C. The Life Insurance business in Pakistan was nationalised by Life Insurance Nationalisation) Order, 1972, where under the petitioners stepped into the shoes of ILACO and entered the proceedings in substitution thereof. The respondents 1 to 3 failed to pay decretal amount or any part thereof within the period specified in preliminary decree.
However, the petitioner failed to apply for final decree with the result that the mortgage property could not be sold and the matter was barred by time. The petitioner, thereafter submitted an application under Order 13, Rule 9, C.P.C. For return of the title documents which were produced by ILACO in original. The respondents 1 to 3 also moved similar application under section 11, C.P.C.
Claiming that the title documents may be returned to them on the ground that the preliminary decree had become unexecutable and therefore the petitioners are not entitled to retain the documents. Both the applications were heard together by a Single Judge of this Court and vide order, dated 28-2-1982, the application filed by the petitioner was allowed and the application filed by respondents 1 to 3 was rejected. It was observed in the said order. That although the preliminary decree was not executable but if a remedy is barred it does not mean that the rights are also barred. Finding no other forum, the petitioners resorted to the provisions contained in Article 40-B of the Life Insurance (Nationaliation) Order, 1972, which reads as follows:--- 40-B. Certain amounts recoverable as an arrear of Land Revenue.---Notwithstanding anything contained in this Order or in any other law for the time being in force and without prejudice to the right of the Corporation to recover its dues in any other manner any dues of the Corporation determined by the Tribunal, or payable under a decree of any Court, shall be recoverable as an arrear of land revenue.
' The petitioners filed an application under the above provisions before the Assistant Commissioner, South, Karachi, who after hearing, dismissed the same by order dated 9-8-1983 on ground that the Revenue Authorities have no powers to execute a time-barred preliminary decree. He further held that Article 40-B of the Life Insurance (Nationalisation) Order, 1972 deals with the dues to be determined by the Tribunal or under a decree of any Court. According to him the dues sought to be recovered were neither determined by the Tribunal nor any decree was sent by any Court for recovery as arrears of land revenue.
' A plea was raised in appeal that the provisions contained in Article 40-B of the Life Insurance (Nationalisation) Order, 1972, had overriding effect on all other provisions for the recovery of arrears and that it was a special enactment, which was promulgated to safeguard the interest of Life Insurance Corporation of Pakistan. On the other hand, a plea was raised on behalf of respondents that no final decree was passed by the High Court, therefore, the Revenue Authorities were precluded from recovering the amount as arrears of land revenue. The Deputy Commissioner, however, dismissed the appeal.
' The subsequent appeals before the Commissioner, Karachi and revision before the Board of Revenue Sindh met the same fate and therefore, the petitioner has filed this petition.
' It is contended that the revenue authorities while declining to recover the dues of the petitioner- Corporation, as arrears of land revenue have proceeded on erroneous assumption that the petitioner was seeking execution of preliminary decree through the Revenue Authorities. It is further contended that the Revenue Authorities have failed to exercise jurisdiction vested in them and have completely failed to understand the whole object of proceedings before them and have misconstrued the relevant provisions of Life Insurance (Nationlization) Order, 1972. It has been further contended that the revenue authorities have failed to appreciate the contention of the petitioner in the context of requirement of Article 40-B, that even a preliminary decree in mortgaged suit is not a legislative decree, but must, insofar as the matters dealt with by it are concerned, be regarded as conclusive and that the finality of the decree or decision does not necessarily depend upon its being executable. It is contended that, it is the playability of the amount, under a decree which is the requirement of Article 40-B and therefore, the petitioners were well within their right to seek recovery of amount as arrears of land revenue from the Revenue Authorities. It is further averred that . The provisions contained in Article 40-B are to be carried out.
Notwithstanding anything contained in any other law, and therefore, the Revenue Authorities were bound to recover the amount from the respondents Nos. 1 to 3, which they have never denied.
' We have heard Mr. Irtiza Hussain Zaidi, learned counsel for the petitioner and Mr. Abdul Latif Shakoor, learned counsel for the respondents Nos. 1 to 3. Mr. Zaidi, has submitted that, notwithstanding the fact, that no final decree was prepared as it became barred by time, the Revenue Authorities ought to have recovered the amount payable by the respondents 1 to 3, as arrears of land revenue. He has maintained that the provisions contained in Article 40-B of the Life Insurance (Nationalization) Order, 1972, has overriding effect and therefore, the Revenue Authorities ought to have acted on it, even if no final decree was framed. He has contended that the provisions contained in Article 40-B, are independent in itself and provide the forum for the recovery of amount which was payable to the petitioners. On the other hand, Mr. Abdul Latif Shakoor, learned counsel for the respondents Nos. 1 to 3, has submitted that a bare reading of Article 40-B, of the Life Insurance (Nationalization) Order, 1972, shows that it provides a manner of recovery of amount payable under a decree of any Court and therefore, it means a decree which is executable. A preliminary decree which is admittedly not executable is not envisaged under the above provisions. He has urged that it is not a case of non-exercise of jurisdiction or refusal by the Revenue Authorities to exercise a jurisdiction vested in them and therefore, the petition is liable to be dismissed.
8. We have carefully considered the contentions raised by the learned Advocates for the parties and have perused the provisions contained in Article 40-B of the Life Insurance (Nationalisation)
Order, 1972. A careful perusal of the above provision shows that, first, it has the overriding effect vis- a-vis any other law for the time being in force and secondly it is without prejudice to the rights of the Corporation, to recover its dues in any other manner. However, we are not persuaded to agree with the submissions of Mr. Zaidi, learned counsel for the petitioner, that Article 40-B provides an independent forum for recovery of an amount payable under a decree even if a decree is not executable. In ordinary course, an amount payable under a decree is to be recovered through the execution proceedings prescribed under the Civil Procedure Code. The provisions pertaining to the recovery of decretal amount merely prescribe the manner and method of recovery. It is established principle that the executing Court cannot go beyond the decree. Thus if a decree is not executable in itself, the amount determined in a judgment to be payable by a party cannot be enforced through execution proceedings ' under the C.P.C. The procedure prescribed for execution of a decree under the C.P.C. Is cumbersome, while the procedure for recovery of any amount as arrears of land revenue, is simple, speedy, more effective and summary in nature. Thus, by insertion of Article 40-B, in the Life Insurance (Nationlisation) Order, 1972, the Legislature has provided another manner of enforcing the recovery of an amount, payable under the decree of any Court by way of arrears of land revenue. The overriding effect of Article 40-B is restricted to the manner of enforcing the recovery of an amount payable under a decree. It has not the effect of conferring validity on an unexecutable decree or a decree which has become barred by time. The Revenue Authorities have been conferred jurisdiction for executing a decree and recover the dues payable under the decree, in addition to the executing Court, nevertheless, the Revenue Authorities while executing the decree of Courts are also bound by the terms of the decree and cannot go beyond the decree, as is the case with the executing Court acting under Civil Procedure Code. The only difference is that instead of adopting the cumbersome procedure envisaged in the C.P.C., for recovery of decretal amount, the Revenue Authorities shall resort to the simple procedure prescribed in the Land Revenue Code for recovery of arrears of land revenue. In other words, if there is legal, valid and executable decree in favour of State Life Insurance Corporation, the Corporation has the option either to get it executed by resorting to the procedure prescribed in C.P.C. Or to enforce the recovery of the decretal amount through the Revenue Authorities and in such eventuality it shall be recovered as arrears of land revenue. Article 40-B of the Life Insurance (Nationlisation) Order, 1972, does not have the effect of validing a decree which is not valid in law or making a judgment itself to be executable in the absence of a decree. There can be no cavil to the proposition that a judgment itself is not executable but the decree which follows the judgment is executable in law. In the present case, a preliminary decree was drawn under Order 34, Rule 4, C.P.C. Which provides that in a suit for sale, if the plaintiff succeeds, the Court shall pass preliminary decree to the effect mentioned in clauses (a), (b) and (c)(i) of sub-rule (1) of Rule 2 and further directing that, in default of the defendant paying as therein mentioned, the plaintiff shall be entitled to apply for a final decree directing that the mortgaged property or a sufficient part thereof be sold, and the proceeds of the sale (after deduction therefrom of the expenses of the sale) be paid into Court and applied in payment of what has been found or declared under or by the preliminary decree due to the plaintiff, together with such amount as may have been adjudged due in respect of subsequent costs, charges expenses and interest, and the balance, if any, be paid to the defendant or other persons entitled to receive the same. It is further provided under Order 34, Rule 5(3) that, where payment in accordance with sub-rule (1) has not been made, the Court shall, on application made by the plaintiff in this behalf pass a final decree directing that mortgaged property or sufficient part thereof be sold, and that the proceeds of the same be dealt with in the manner provided in sub-rule (1) of rule 4.
9. A perusal of above provisions shows that Order 34, C.P.C. Which deals with the suits relating to mortgage of immovable property has provided that initially a preliminary decree shall be made under rule 4 for taking of account of what was due to the plaintiff at the date of such decree for--
(i) principal and interest on the mortgage,
(ii) the costs of suit, if any, awarded to him, and
(iii) other costs, charges and expenses properly incurred by him up to that date in respect of his mortgage-security, together with interest thereon; or (b). Declaring the amount so due at that date; and (c) directing---
(i) that, if the defendant pays into Court amount so found or declared due on or before such date as the Court may fix within six months from the date on which the Court confirms and countersigns the account taken under clause (a) of Order 34, rule 2(1) or from the date on which such amount is declared in Court under clause (b) of the above provisions, as the case may be, and thereafter pays such amount as may be adjudged due in respect of subsequent costs, charges and expenses as provided in rule 10, together with subsequent interest on such sums respectively as provided in rule 11, the plaintiff shall deliver up to the defendant, or to. Such person as the defendant appoints, all documents in his possession or power relating to the mortgaged property, and shall, if so required, transfer the property to the defendant at his cost free from the mortgage and from all encumbrances created by the plaintiff or any person claiming under him, or, where the plaintiff claims by derived title, by those under whom he claims, and shall also, if necessary, put the defendant in possession of the property. It is further provided in Order 34, rule 2, sub-rule (2) that the Court may, on good cause shown and upon terms to be fixed by the Court, from time to time, at any time before a final decree is passed, extend the time fixed for the payment of the amount found or declared due under sub-rule (1) or of the amount adjudged due in respect of subsequent costs, charges, expenses and interest.
10. On the perusal of all the above provisions it becomes abundantly clear that the preliminary decree under Order 34, rule 4, C.P.C. Does not contain any direction for sale of any mortgaged property or any part thereof. It only determines the liability of the defendant and provides an opportunity to the defendant to pay the amount due to the plaintiff and if the amount found due under the preliminary decree, is paid by the defendant the plaintiff is to be directed for delivering up the documents and possession to the defendant. The provisions contained in Order 34, rule 4, sub-rule (1) and sub-rule (3) of rule 5 of Order 34 are very clear that when a final decree is made it shall contain a direction for the sale of the mortgaged property or a part thereof and the appropriation of the sale proceedings in the manner provided in sub-rule (1) of Rule 4 of Order 34.
11. The application for preparation of final decree can be made within three years of the passing of preliminary decree. A Division Bench of this Court in the case of Habib Bank Limited v. Muhammad Abbas 1999 CLC 531, held that the provisions of Article 181 of the Limitation Act, are attracted for making an application under Order 34, rule 5(3), C.P.C. For passing final decree. The effect of absence of the final decree is that the plaintiff in whose favour a preliminary decree is made looses his right for enforcement of recovery of amount due under the preliminary decree. In the case of H.B.L. v. M. Abbas (supra), the following observation has been made:- "The unfortunate aspect of the case is that Officers of the appellants did not take proper care for filing. The application under Order 34, Rule 5(3), C.P.C. For final decree within the prescribed time with the result that their application was rejected by the learned Single Judge vide order, dated 13- 3-1991. For such delay no plausible explanation is forthcoming from the functionaries of the appellants who are public servants and are supposed to look after and safeguard the interest of the Institution for which they are serving, for which they are getting salaries and other benefits."
12. For the foregoing reasons, it is concluded that the effect of the final decree becoming barred by time is that a plaintiff in whose favour a suit is decreed, looses his right to enforce the sale of mortgaged property under the judgment or preliminary decree. While the right to recover the amount due, itself is not lost, the plaintiff cannot get the right of recovery under the decree revived by recourse to the manner of recovery provided in the Land Revenue Act. The words "payable under a decree of any Court" used under Article 40-B of the Life Insurance (Nationalisation) Order, 1972, are very pertinent and are indicative of the intention of Legislature that the decree-holder/ plaintiff can have recourse to the provisions contained in Land Revenue Act, if the amount is payable under a decree of any Court. However, if the dues are not payable under a decree, it cannot be enforced either through the execution proceedings under the Civil Procedure Code or by recourse to the manner provided in the Land Revenue Act. We find that in the application submitted before the Assistant Commissioner, Karachi, South a prayer was made that the mortgaged property be sold by auction or by private treaty for the recovery of the amount due from the respondents Nos. 1 to 3. Since the preliminary decree which was sought to be executed did not contain any direction of the sale of the mortgaged property, therefore, Revenue Authorities have rightly declined to accede to the prayer of the petitioner. Consequent to the above findings, it is held that the Revenue Authorities have rightly declined to initiate the sale proceedings of the mortgaged property and in doing so have exercised their jurisdiction in accordance with the law to which no exception can be taken. The petition is without substance which sands dismissed, with no order as to cost.