Sheikh ATTIQ-UR-REHMAN SARWAR vs SAJJAD HUSSAIN

ORDER

' MUHAMMAD AKHTAR SHABBIR, J.--- This appeal under Article 185(2)(d) of the Constitution of Islamic Republic of Pakistan is directed against the judgment of the Lahore High Court, Lahore dated 13-5-2008 passed in F.A.O. No,67 of 2008.

2. Brief facts of the case are that Sajjad Hussain, respondent filed a suit for recovery of Rs,8,84,000 under Order XXXVII of the Code of Civil Procedure, against Sheikh Attique-ur-Rehman Sarwar, the appellant, which was decreed by an Additional District Judge, Sheikhupura, vide his judgment dated 2-3-2007. Feeling aggrieved, the appellant filed Regular First Appeal No,143 of 2007, which was disposed of by a learned Division Bench of the Lahore High Court, Lahore on 24-9-2007, in terms of the settlement arrived at between the parties, text whereof is reproduced below:-- "It is stated by the appellant present in the Court that he does not want to press this appeal, provided some time is given to him for making the payment of the decrials amount to the respondent, he in this behalf, has asked for a year time, the respondent's counsel has only agreed to grant him about 4/6 months time, however considering the facts of the case and also that the present appeal has been admitted to regular hearing, we as now agreed by the appellant, grant him six months time to pay a sum of Rs,5,00,000 out of the decrials amount within six months from today and balance decrials amount shall be paid within further three months. In case, the first' installment of the decrials amount is not made; the entire amount shall become due. As far as the decree for the amount of interest is concerned, that stands set aside, however, in case, the appellant does not make the payment of first installment, the decree to the extent of interest shall remain intact.

' With the above settlement, this appeal stands disposed of and a decree is accordingly passed in favour of the respondent and against the appellant."

' The appellant could not comply with the above order within the stipulated time, as such, the respondent moved an application before the Executing Court for restoration of his execution petition and issuance of warrant against the appellant, wherein the appellant was summoned, who appeared in Court on 25-3-2008 and moved an application for permission to deposit the amount of first instalment of Rs,5,00,000 in the Government treasury as the respondent has refused to receive the same from him out of Court. Both the applications were heard together and the application filed by the respondent was dismissed while that of the appellant was allowed, vide order dated 31-3-2008. Dissatisfied with the said order, the respondent filed F.A.O. No,67 of 2008, which has been allowed by a learned Judge of the Lahore High Court, Lahore, vide the impugned order, observing that the executing Court was not bestowed with any authority to grant premium of the delay caused by the appellant/judgment-debtor and was bound to adhere to the terms and conditions as incorporated in the order dated 24-9-2007. Hence this petition.

3. Learned counsel for the appellant contended that the High Court has failed to appreciate the law and facts of the case in its true perspective and has not taken into consideration the bona fide explanation of the delay of one day in depositing the first instalment of the decretal amount; further contended that 23-3-2008, the last date of the six months' time granted by the appellate Court being holiday/Sunday, the appellant has filed his application with a delay of one day on 24- 3-2008 fdr permission to deposit the first instalment with the treasury as the respondent had refused to receive the said amount out of Court; further contended that the appellant was not at fault in payment of the first instalment of the decretal amount but, the respondent having refused to receive the same out of Court, the appellant was obliged to file the application before the executing Court for extension of time and permission to deposit the same in the Treasury. While, on the other hand, the learned Advocate-on-Record appearing on behalf of the respondent supported the impugned judgment.

4. We have heard the arguments of the learned counsel for the parties, perused the record with their kind assistance. The suit against the appellant for the recovery of Rs,8,84,000 has been decreed against him on 2-3-2007. The appeal filed by him was disposed of by the High Court on 24-9-2007 with the concurrence of the parties and he was granted six months time to pay a sum of Rs,5,00,000 out of the decretal amount within six months from the date of the order.

5. The last date of the six months' time so granted by the High Court expired on 23-3-2008 and the appellant neither paid the amount out of Court to the respondent nor deposited the same in the Court within the staid period. He appeared in Court on 25-3-2008 with an application seeking permission to deposit the first installment of the decrials amount in the treasury. As per the record, the application was filed by the appellant on 25-3-2008 though it bears the date as 24-3-2008.

The time was the essence of the consent order passed by the High Court and the appellant did not comply with the terms of the compromise arrived at between him and the respondent before the High Court, as such, Order XXI, rule 1, of the Code of Civil Procedure would not help the appellant to make the payment of the decrials amount beyond the time granted by the appellate Court. As the executing Court cannot go beyond the decree and has to execute the same as it is, unless the same is a patent nullity. Reference in this context can be made to Muhammad Ali v. Ghulam Sarwar 1989 SCM R 640 and Kazi Abdul Kader v. The East Pakistan Provincial Co-operative Bank Ltd.

1969 SCM R 275. Even otherwise, in the order of the Court the time being the essence of the agreement and the last date of the time so granted falling on the holiday, the payment made thereafter would not comply with the terms of the compromise as directed by the Appellate Court.

Reference, in this context, can be made to Indal v. Ram Nidh AIR 1946 Oudh 156 and Ch. Muhammad Nawaz v. Ch. Rehmat Ali and another 1994 SCM R 349.

6. In view of the above, we do not find any illegality, infirmity in the impugned order passed by the High Court. This appeal being devoid of merits is dismissed with no order as to costs.