ABDUL SATTAR Versus AFZAAL HUSSAIN
ORDER
In this Civil Revision Petition the judgments and orders passed respectively on 7-5-1994 and 20-11-1993 by the learned Additional District Judge, Lahore and the learned Civil Judge, Lahore in execution proceedings dismissing the objection petition of the petitioners, have been challenged.
2. The brief facts are that Ghulam Hussain, the deceased predecessor-in interest of the respondents filed suit for specific performance of the contract against Abdul Wahab, the deceased predecessor-in-interest of the present petitioners. The suit was dismissed by the learned trial Court on 1-4-1972 and the appeal against the same was also dismissed by the learned First Appellate Court on 14-5-1980. However, in second appeal (R.S.A. No.704 of 1980) this Court vide judgment dated 18-4-1984 accepted the appeal and decreed the suit. The judgment-debtors challenged the same before the Hon'ble Supreme Court in Civil Appeal No. 151 of 1985 which was also dismissed on 14-11-1990. After the decree having been passed by this Court, the decree-holders filed application for execution of the decree which in view of the pendency of the civil petition for special leave to appeal before the Hon'ble Supreme Court was adjourned sine die. On the dismissal of the Civil Appeal by the Hon'ble Supreme Court the execution petition was got revived. On 14-1-1993 the present petitioners filed objection petition against the draft sale-deed presented to the Executing Court, inter alia, contending that the requisite notice and the copy of the draft sale-deed was not delivered to the judgment-debtors and that the amount of consideration was not proper which was not deposited within reasonable time from the passing of the decree. It was prayed in the objection petition that the draft sale-deed be rejected, This objection petition was rejected by the learned Executing Court vide order dated 20-11-1993 and the appeal against the same was also dismissed by the learned Appellate Court on 1-5-1994.
3. The objection regarding non issuance of requisite notice and the delivery of draft sale-deed was repelled by the learned Appellate Court who observed as follows:-
"The file reveals that the attorney on behalf of the appellants was appearing before the learned executing Court, but later on had disappeared on 14-6-1993. The objection petition being misconceived as on 14-6-1993, the Draft Sale-deed was filed, Muhammad Irshad (General Attorney of Judgment Debtor No.l) was present, and the learned Executing Court adjourned till 14-7-1993, for filing of objections. A copy of the Draft sale-deed was delivered to him. No objections were filed on 14-7-1993. Therefore, the Draft sale-deed was confirmed. The first 6bjection of the learned counsel are sleazy and is turned down, that no fair opportunity was afforded to the appellants in filing the objections to the draft sale-deed."
4. With regard to the consideration for sale, the learned Appellate Court while holding that it was deposited within reasonable time observod that :
"Mr. Naveed-uz-Zafar, Learned Civil Judge vide his judgment/Decree dated 1-4-1972, while determining Issue No.2, had determined the consideration as Rs.10,545 which was upheld by Mr. Nusrat Hussain Qureshi, Learned A.D.J. Lahore vide his judgment dated 14-5-1980."
5. With regard to the objection relating to the non-service of notice and the draft of the sale-deed in accordance with Order 21, Rule 34 (2), C.P.C. and, the depositing of sale price within reasonable time, there are concurrent findings recorded by both the lower Courts. There is nothing on record to establish that these findings are against the evidence or stand vitiated.
6. However, the question with regard to the amount of consideration is agitating in my mind, The agreement of reconveyance, of which the specific performance was sought, was executed on 15/16-2-1960 by and between Ch.Ghulam Hussain and Abdul Wahab, the respective predecessors-in-interest of the parties and contains the following stipulation:-
7. The learned trial Court vide judgment dated 1-4-1972 has held ,that:
" The value of the suit for purposes of court-fee and jurisdiction is to be Rs.10,545 the amount that was paid by defendant to the settlement authorities. "
8. According to the findings of this Court recorded in Regular Second Appeal. No. 704 of 1980 and those of the learned Trial Court, P.T.D. was issued on 5-12-1966 on payment of the transfer-price of Rs.10,545 to the Settlement Department by Abdul Wahab, which had to be re-paid by Ch.Ghulam Hussain within three years after the transfer alongwith the rent under the agreement. Thus, the consideration for the reconveyance of the property in dispute was Rs.10,545 payable on or before 4-12-1969, within the stipulated period of three years. This Court while accepting Regular Second Appeal No.704 of 1980 and passing the decree on 18-4-1984 did not determine the amount of consideration for reconveyance. However, the plaint in the suit which was filed by Ch. Ghulam Hussain when he was alive, shows that the decree was sought for the specific performance of the contract of sale " on payment of stipulated amount. " The amount as such was not stipulated in the agreement but, as observed above, the learned trial Court had held that the amount of Rs.10,545 was paid by late Abdul Wahab to the Settlement Department as transfer price for getting the property transferred in his name, which is the consideration or the 'stipulated amount' for reconveyance.
9. Abdul Wahab was thus entitled to receive Rs.10,545 on or before 4-12-1969 which was not paid to him. Instead, this amount was deposited by the successor-in-interest of Ch.Ghulam Hussain after the decree was passed by this Court on 18-4-1984. According to the copy of the draft sale-deed, it appears that the sum of Rs.10,545 i.e. the amount of consideration, was deposited in the State Bank of Pakistan, Lahore on 21-7-1993 by the respondents.
10. In terms of Clause 2 of the agreement and the findings of the learned trial Court, Rs.10,545 formed consideration and was the stipulated amount for reconveyancing the suit property which under the agreement had to be paid on or before 4-12-1969. Since payment was not made within the stipulated period, the petitioners were entitled to be recompensed for the loss they suffered on account of the diminution in the purchasing power or the exchange value of Pakistan rupee. Therefore, it seems just and proper that the respondents pay to the petitioners an amount equal . to Rs.10,545 of the month of December, 1969 in terms of the. purchasing power or the exchange value on the principle of 'Gold Value Clause'. The criterion to determine the equal amount of Rs.10,545 on 21-7-1993 is to find out as to what amount of U.S. Dollars could be purchased on 4-12-1969 for the amount of Rs.10,545 and then to reconvert the same in Pakistan-rupee at the rate of exchange Prevalent on 21-7-1993. This would be the proper amount' as consideration which was payable on 21-7-1993 for the reconveyance of suit property in the name of respondents.
11. This Civil Revision Petition is accordingly disposed of with the direction that the learned Executing Court shall determine the amount of consideration for reconveyancing the suit property to the respondents in the light of the preceding paragraph and shall make necessary amendments in the saledeed. In the peculiar circumstances of this case, there shall be no order as toy cost.
A.A./A-190/L Order accordingly