Sheikh MUHAMMAD SHAFIQUE vs HUMAYUN KABIR AND 3 OTHERS

' This revision application has been filed against the order of Additional District Judge, Sukkur granting application under Order XXI, rule 29, C. P. C. Filed by respondent No, 3 and staying execution of the decree. Briefly the facts are that the applicant filed a summary Suit No, 38 of 1978 against respondents Nos. 1, 2 and 3. The suit was compromised and decree was passed in terms of application filed by the parties. The respondent No, 3 is the wife of respondent No,

2. On the basis of a special Power of attorney executed by respondent No, 3 in favour of respondent 'No, 2, he appointed an Advocate and signed the application under Order XXIII, rule 3 C. P. C. On behalf of respondent No,

3. Under the compromise decree respondents Nos. 1, 2 and 3 had undertaken to pay a sum of Rs, 1,20,000, by selling a property claimed to be under their ownership on or before 2- 5-1979 failing which petitioner could recover the said amount from the said property by filing execution application. On respondents' failure the applicant accordingly filed execution application and the respondent No. 1 on 22-12-1979 deposited a postdated cheque dated 28-2-1980 in full and final satisfaction of the decree. By consent the cheque was retained in safe custody and finally according to the petitioner's Advocate, when it was presented the same was dishonoured. It, however, transpired that respondent No, 2 filed a Civil Suit No, 32 of 1980 in the Court of Senior Civil Judge, Sukkur challenging the validity of the compromise decree passed in Suit No, 38 of 1978. This suit filed on the ground that respondent No, 2 was not authorised under the power of attorney to admit the claim and compromise the matter. It was further alleged that the special power of attorney was interpolated by adding the power of compromise which was never given by her. An application under Order XXXIX, rules I and 2, C. P. C. Was also filed for restraining the petitioner from executing the decree. The learned Civil Judge however granted status quo on 2-3-1980 which was extended from time to time. Finally the respondent No, 3 filed an application under Order XXI, rule 29 read with section 151, C. P. C. In the Court of Additional District Judge which had decreed Suit No, 38 of 1979. After hearing the parties the learned Additional District Judge stayed the execution proceedings till the decision in Suit No, 32 of 1980. In the revision application besides respondents Nos. 1 to 3 who were parties in Suit No, 38/79, Demla Roller. Flour Mills, Limited has also been joined as respondent No,

4. This company has objected to the execution on the ground that the property which is subject matter of execution is its property and respondents Nos. 1 to 3 could not have agreed to alienate it.

The learned counsel for the applicant has contended that as a remedy against the compromise decree was available to respondent No, 3 by filing an appeal Order XLIII, rule 1, C. P. C. The suit was not maintainable and therefore no order of status quo could be passed. It is true that an appeal could be filed against the order and decree passed by the learned Additional District Judge, but it cannot be denied that suit for declaration and injunction as framed by respondent No, 3 is maintainable. It would be proper to file a suit for declaration where the existence of the alternate remedies doubtful or inconvenient or is not efficacious or will result in grave injustice.

' In the present case the remedy by way of appeal was of a limited nature' particularly when the respondent No, 3 has alleged fraud and forgery in the power of attorney which was not within her knowledge. In appeal it would have been inconvenient to prove these disputed questions of fact and in the circumstances of the case it was not an efficacious remedy, perhaps in the ultimate analysis it would have resulted in grave injustice. In the circumstances of this particular case the objection of the petitioner is not maintainable. It may be mentioned here that after the enforcement of Code of Civil Procedure (Amendment) Ordinance, 1980, promulgated on 26-3-80 the ' legal position has materially changed. By an amendment in section 12 of C. P. C., sub-clause

(2) has been added which provides that "where a person challenges the validity of a judgment, decree or order on the plea of fraud, misrepresentation or want of jurisdiction, he shall seek his remedy by making an application to the Court which passed the final judgment or order and not by a separate suit". The respondent No, 3 filed the suit on 2-3-80 and therefore will not be hit by this amendment.

' The next contention of the learned counsel for the applicant was that as the compromise application was signed by the Advocate of respondent No, 3 who was authorised to act and plead on behalf of the respondent No, 3, the settlement was binding and respondent No, 3 could not challenge the decree. Reliance was placed on 1971 SCMR 634. The contention of the learned counsel is misconceived because in the present case the attorney had appointed the Advocate on behalf of respondent No,

3. The attorney himself according to the allegations did not have the power to admit the claim and to compromise. In the circumstances the attorney not being authorise as stated by respondent No, 3, could not have authorised the Advocate to compromise the matter on behalf of respondent No,

3. It is a well-settled principle that a delegatee can only delegate what has been conferred upon him provided be is authorised to do so.

' The learned counsel next contended that respondent No, 3 is not entitled to take advantage of the fraud. By this contention he implied that the respondent No, 2 has committed fraud and therefore, the respondent No, 3 is debarred from taking advantage of the fraud of her husband. In fact the allegations are that the respondent No, 3 is the victim of fraud and not its author.

The learned counsel for respondent No, 3 has submitted that the impugned order, being a discretionary order should not be interfered in exercise of the revisional jurisdiction. He further submitted that in the suit filed by respondent No, 3, order of status quo has been granted and, therefore, the impugned order was perfectly justified. Relying on AIR 1936 Mad. 102, he has submitted that as the suit filed by respondent No, 3 is maintainable the application Order XXI, rule 29, C. P. C. Was competent. C The object of rule 20 is to enable the Judgment-Debtor and the Decree Holder to adjust their claims against each other and to prevent a multipicity of execution proceedings. If a suit which is maintainable in law is filed, the Court which passed the decree can stay the execution under this rule. The exercise of discretion will depend upon the facts and circumstances of each case. In the present case the respondent No, 3 is a lady who has challenged the power of attorney executed in favour of her husband respondent No, 2.

Respondents Nos. 1 and 2 have not challenged the decree at all. In fact the respondent No. 1 in compliance with the compromise decree had submitted a cheque for Rs, 1,20,000. Another noteworthy which was mentioned in the compromise application for satisfaction they aspect of this case is that the of the decree has been claimed by respondent No, 4 which is a private limited'

Company. It has been alleged by respondent No, 4 that the property' belongs to it and none of the respondents Nos. 1, 2 and 3 had any authority to sell it. In these circumstances it seems that although the dispute seems to be between the respondents Nos. 2 and 3 requiring investigation and consideration of facts it will seriously prejudice the petitioner. In this context the allegation of the petitioner that the respondents, in collusion with each other have filed Suit No, 32/80 to defeat the decree, cannot be lightly brushed aside. In these circumstances the stay of execution proceedings should have been ordered on terms as to security. I therefore set aside E the impugned order dated 25-5-80 passed by the 2nd Additional District Judge, Sukkur with costs.

' I further order that the proceedings in Execution Application No, 5 of 1979, shall be stayed only on furnishing security by respondent No, 3 to the extent of the decretal amount in Suit No, 38/78 within three weeks to the satisfaction of the trial Court.