MUHAMMAD LAL Versus ABDUL QUDDUS

MUSHTAK ALI QAZI, J.‑ This Letters Patent Appeal is directed against judgment passed in 2nd appeal by a learned Single Judge of this Court whereby the order of the District Judge, Quetta in 1st app ;al was set aside and the original order of the civil Judge regarding mortgaged property consisting of a house was restored.

2. The facts in brief are that respondent Abdul Quddus had mortgaged his house with appellant Muhammad Lal in he year 1961 for a sum of Rs 400 and possession had been handed‑over to Muhammad Lai. On 28th August 1965 Abdul Quddus, the present respondent, filed a suit for redemption of the mortgage to the Court of the Civil Judge Pending the proceedings the dispute was referred to arbitration by one Haji Abdul Manan Khilji. The arbitrator made the award and filed it in Court on 4‑1‑1966. According to that award (i) Abdul Quddus was to pay Rs. 1,200 to Muhammad Lai before 30‑6‑1966 (i.e. within about six months) and he was then to get possession of the house as redeemed from mortgage, from Muhammad Lai; (ii) If Abdul Quddus fined to pay Rs. 1,200 before 30‑6‑1966 then Muhammad Lai was to pay Rs. 400 to Abdul Quddus who thereafter would have no concern with the house. The learned Civil Judge instead of decreeing the suit in terms of the award passed quite a different decree on 29th of August 1967. Under this decree Abdul Quddus was to deposit Rs. 411.88 on or before September, 1967 and then he was to get possession of the house.

3. Abdul Quddus accordingly deposited this amount immediately on 7‑9‑1967 and applied in execution for possession of the house. Muhammad Lai then preferred an appeal against the decree before the District Judge who accepted the appeal by his order dated 11‑I1 1967, setting aside the decree passed by the Civil Judge and decreed the suit in terms of the award. Within 17 days of passing of this judgment, Abdul Quddus deposited the balance of Rs. 800 on 28‑I1‑197. Thereafter Muhammad Lai also deposited Rs. 400 on 12‑12 1967. Muhammad Lai contested the execution application filed by Abdul Quddus by raising the objection that according to the terms of the award ‑ haul Quddus had to deposit Rs. 1,200 before 30th June 1966. He was not, therefore, entitled to redemption and on the other hand he, that is, Muhammad Lal, could pay Rs. 400 and foreclose the mortgage. The Civil Judge and executing Court, however, dismissed these objections on the ground that Abdul Quddus had to deposit the amount within a reasonable time from the date of the decree, and he was, therefore entitled to recover possession. Muhammad Lai thereupon preferred an appeal before the District Judge, who allowed it observing that the award had to be executed as it was without any modification. The learned District Judge lost‑sight of the fact that at the time the award became rule of the Court on 11‑11‑1967 the date fixed for payment of the amount of Rs. 1,200 by Abdul Quddus had already expired and the decree passed by the District Judge in, terms of the award was incapable of execution if the date of payment was to be adhered to without modification. Our learned brother Ghulam Rasool Shaikh, J. accordingly took the view that time for payment allowed under the award, that is, 5 months and 20 days was to be counted from the date, the award became the rule of the Court, namely, 11‑11‑1967; that since Abdul Quddus had made the payment for the sum determined under the award long before the expiry of this period from the date of passing of the decree, he had fully complied with the terms and conditions of the award. The learned Judge accordingly allowed the appeal, set aside the order of the District Judge, and restored the earlier order of the Civil Judge. Against this judgment passed in 2nd appeal Muhammad Lal has preferred the present letters patent appeal.

4. It has been contended by Mr. Munawar Ahmed on behalf of appellant Lal Muhammad that the executing Court had no authority to amend or modify the decree passed in terms of the award since it could not go behind that decree. The learned Advocate has cited the case of Kazi Abdul Kader v. The East Pakistan Provincial Cooperative Bank Ltd. (1969 S C M R 275) in support of his contention. The point for consideration in that case was, however, quite different. The petitioner had objected to the execution of the award in that case on the ground that the award in question was not a valid award as it was made without jurisdiction. The objection was overruled .by the executing Court and against that decision an appeal was preferred before the High Court of East Pakistan but the same was rejected. Under the circumstances it was observed, in the Supreme Court Judgment on appeal from the order of the High Court, that "the executing Court cannot go behind the award and determine its validity or invalidity. The executing Court is required only to execute an award as it is and the objection was accordingly dismissed.

5. The learned Advocate for the appellant has then referred to another decision reported in Abdul Malek Mian v. Moslemuddin Sheikh (P L D 1970 Dacca 743). It was observed in that decision "that it is well settled that an executing Court cannot go behind the decree. It is true that under certain circumstances where the decree is without jurisdiction or is a nullity then the executing Court is entitled to take notice of such circumstances. Illegality in the order .on other grounds, however, cannot give such scope to the executing Court. Want of jurisdiction is not the same thing as illegal exercise of jurisdiction. It is, therefore, well established that an executing Court cannot refuse to execute the decree because it is against law or contravenes any provisions of any statute. Patent want of jurisdiction is not to be confused with illegal exercise of such jurisdiction". Thus according to this decision an executing Court has to enforce a decree without going into any objection regarding illegal exercise or jurisdiction by the Court which passed the decree.

6. In the last case pointed out by the learned Advocate for the appellant Feroz Din v. Sheikh Ahmad (P L D 1970 Pesh. 54) it was held that in a pre‑emption suit pro visions of sections 148 and 151, C. P. C. could not be invoked to seek extension of time for deposit of pre‑emption money.

7. The facts of the present case are, however, quite different and rather peculiar. The intention of the arbitrator obviously was to allow sufficient time to the owner of the property to redeem it by payment of Rs. 1,200 as against the original loan of Rs. 400. Unfortunately the Civil Judge ignored this award and gave his own decision regarding payment of Rs. 400 only. The District Judge rightly set aside the decree of the Civil Judge and made the award the rule of the Court. But by the time all this was done the date for payment, actually mentioned in the award, had expired. The District Judge however, left it to the executing Court to implement the real intention of the arbitrator. By insisting on the date mentioned for payment, the executing Court would have rendered the decree in executable. The decree was, however, interpreted in a manner so as to implement what was the real intention of the arbitrator under the award and the mortgagor was allowed reasonable time to make the payment. Under these circumstances it cannot be said that the executing Court has gone behind the decree and has modified the award. The decree passed in terms of the award was not meant to be nullity; nor could the executing Court decline to execute the same merely because the arbitrator had mentioned a particular date for payment. But for the wrong judgment passed by the trial Court by ignoring the award and the time taken up in rectification of that error, the decision of the arbitrator would ordinarily have been implemented according to the time schedule, fixed by him. Thus, it is no doubt true that an executing Court cannot go behind a decree but must execute it as it stands; yet when terms of a decree are ambiguous the Court may construe the decree to ascertain its precise meaning. For this purpose the Court is entitled to look into the contents of the original award and even the pleadings, to ascertain the real nature of the relief and its extent. A Court must adopt a construction which will bring the decree in conformity with the judgment, though the Court cannot make a new decree for the parties under the guise of interpretation. Once that precaution is taken, an executing Court can exercise its discretion to find out the real relief awarded, and it need not rule out the award as a nullity on account of any apparent error or discrepancy or some obvious inconsistency or ambiguity in the language used, unless for all purposes the award is so absurd as to be incapable of execution. Even if there is an error as to the date of payment and a date is given that had already expired before the award became rule of the Court, the executing Court can so interpret the decree as to implement the real object of the arbitrator and make it capable of execu tion, by allowing a reasonable time for payment. What the Court is required to keep in view is the essence of the matter. Fixing a date for payment within six months of the award was just an incidental and collateral matter and had hardly any bearing on the decision itself.

8. We are fortified in holding this view by a number of decisions. In Durga Prosad Chamria and another v. Sewktshendas Bhatter and others (PLD1949PC187) it was observed by Lord Radcliffe as under:‑---

"Finally it was urged that the award was "so indefinite as to be incapable of execution. Stress was laid on the difficulty of reconciling the basis of the accounts directed by paragraph 6 of the award with the declaration of partnership interests which is contained in paragraph 8. There is a difficulty. But it is not enough to detect a possible inconsistency in the terms of an award to enable a Court to set it aside or remit it. It must be "so indefinite as to be incapable of execution". Their Lordships are unable to perceive any indefiniteness of this kind in the award which, it must be remembered, was framed and published as an interim award. The facts with which the arbitrator was faced were themselves complicated and the conception upon which is founded his interpretation of the respective legal rights of the parties in the assets of the partnership or partnerships is a subtle one. But there is neither indefiniteness nor ambiguity in his holding as to the interests of the parties in the firm of Hurdutroy Chamria & Co., which is set out in paragraph 8, and this is, after all, the essence of the matter. Neither of the Courts below has felt itself faced with any difficulty in interpreting the effect of the award and their Lordships do not think "that it would be right for them to entertain an appeal to set aside or remit it on this ground."

9. In another Privy Council case reported in Sri Radha Krishna Chanderji v. Ram Bahadur and others (AIR 1917 P C 197) their Lordships were of the opinion that the true construction of a decree depended on what had been actually ordered by the Court. In Nanda Gopal and another v. Baidyanath Dutta and others (A I R 1957 Pat. 87) it was observed that there was no doubt that an executing Court had no power to go behind the terms of a decree, but it had the power to interpret the decree, though under the guise of interpretation it could not make a new decree for the parties. Likewise in Ghulam Nabi Chapawala v. F. W. Needham and others (A I R 1925 Cal. 1243) it was held that an executing Court could investigate the question as to what is included in the decree. When the question arises as to what is included in a decree in execution proceedings the execution Court has got to go into the question as to what was decreed. In Mattiur Rahman Khan v. Sonu Lal and others (A I R 1938 Pat. 195) it was laid down that an executing Court has no right to go behind the decree or in any way to act or to amend the terms thereof. It could however, ascertain as to what was the subject‑matter of the decree. In Gulab Singh and others v. Mahmud Khan (A I R 1929 Lah. 437) it was expressed that an executing Court did have the power to interpret a decree. In Bukkan Singh and another v. The District Board, Ludhiana (A I R 1933 Lah. 41) it was observed that where the decree was brief and ambiguous the executing Court could look into the pleadings to ascertain precise scope and meaning of the decree, In Bhudaram Marwari and others v. Udai Narayan and others (A I R 1932 Pat. 12) it has been held that it is the duty of the Court executing a decree, to interpret it and to find out what the decree has really granted; and for this purpose the Courts are entitled to refer to the pleadings and ascertain to what extent the decree can be executed. In order to find out whether a decree can be executed the Court must find out the basis of the decree and for this purpose they are entitled to refer to the plaint of the suit. One must construe a document as whole and one should not confine himself only to a few words. In order to understand the relief sought in a suit one has to see the facts on which that relief is based." In F. K. Wilson and another v. Nathmull (A I R 1930 Mad. 458) it has been observed that whenever it is possible to construe a decree in two ways, one way consistent with the judgment and the other inconsistent with it, it is a duty of the Court to construe it in a way consistent with the judgment.

10. Thus any apparent error in the decree has to be construed by the executing Court in such a manner as to give effect to the real intention contained in the decision so as to make the decree capable of execution. In the present matter also the learned Single Judge of this Court held the view that the real intention of the decision was to allow 5 months and 20 days' time to the mortgagor to make payment and redeem the mortgage. Under these circumstances the mere mention of a date for payment which had expired was of no consequence and could not debar the executing Court from enforcing the award and the final decree based on it.

11. The judgment of our learned brother is accordingly affirmed and the appeal is dismissed with costs.

K.B.A. Appeal dismissed.