MUHAMMAD YASIN KHAN Versus AFTAB AHMAD KHAN

1. This application is for execution of a consent decree dated 10th January, 1968. This was the result of an application under Order XXIII, rule 3, C. P. C. made on 10-1-68, in Suit No. 179 of 1964 which was admitted by the Court and it would be convenient to reproduce the terms of the compromise arrived at between the parties as specified in that application. The suit was filed by the Decree-Holder, for specific performance of & sale agreement dated 15-7-65 and the terms of compromise were "(a) that the defendants shall convey and transfer the suit lands in favour of the plaintiff complying with all the terms and conditions of the agreement of sale, within two months from the date of dismissal of Suits No. 54 of 1964 and 226 of 1966 filed by Moinuddln Hasan Khan and which are pending in this Hon'ble Court (b). That within one month of the dismissal of the above suits the plaintiff shall deposit the balance of sale consideration in this Hon'ble Court.

2. In case the plaintiff failed to deposit the balance of the sale consideration as mentioned, the defendants were entitled to forfiet Rs. 1,00,000, and on payment of Rs. 2 lacs by them to the plaintiffs the agreement of sale would stand automatically cancelled. In case the above suits were decreed finally in favour of Moinuddin Khan, they would be entitled to the refund of Rs. 3 sacs in full. This application was signed by the decree-holder and the two judgment-debtors and also by the counsel who represented them. It is not disputed that the two Suits Nos. 54 of 1964 and 226 of 1966, were dismissed on 6-3-75 and 14-2-1975 respectively, and further it is admitted that the decree-holders had paid to the judgment-debtors a sum of Rs. 3,00,000, upon agreement of sale and had further deposited sum of Rs. 10 lacs in terms of the compromise decree in this Court.

3. In the application for execution the decree-holder has specifically stated "It has however transpired that defendants/judgment-debtors have now been unable to secure the undivided share of five minor children of Muhammad Bechal admeasuring 3 acres and 14 ghuntas. As per deh form VII the defendants-judgment-debtors own only 19 acres and 27 ghuntas contained in S. Nos. 112 to 117. The final consideration for 19 acres and 20 ghuntas, payable by the decree-holder worked out to be Rs. 8,07,014.00 but in spite of this the decree-holder had deposited an amount of Rs. 10 lacs calculated for the entire area of 23 acres and 1 ghunta and also the conversion charges for the same area. "The mode and the assistance of the Court required by the decree-holder was the execution and registration of the deed of conversion for which he had submitted the drafts, through the Nazir, authorised by this Court in this behalf, and had prayed for transfer in his favour and delivery of possession the land admeasuring only 19 acres 20 ghuntas in S. Nos. 112 to 116 situated in deh Gujro Tapo Sundan, Taluka and District Karachi. The decree-holder also prayed for authority to the Nazir of this Court to obtain permission and all certificates necessary or inci dental to complete the conveyance and transfer in respect of the aforesaid land, complying with 411 the terms and condition of the agreement of sale dated 15th July 1963 with further authority to make the payment of any amount to the Government or any other person or persons due and payable on behalf of the judgment-debtors and refund to plaintiff-decree-holder any amount found deposited by him in excess in terms of the said agreement and the compromise decree under Order XXI, rule 34, C. P. C.

4. Thus the decree-holder had significantly omitted the part of the land which the judgment-debtors had not been able to get as being the share of 5 minor children of Mohammad Bachal.

5. To this application of execution, the judgment-debtors filed objections under section 47, C. P. C. read with section 151 of the C. P. C. and these were, to the effect "that the decree-holder had committed defaults of the terms of the sale agreement dated 15-7-63 and also the consent decree. He was therefore not entitled to enforce the consent decree. These defaults in short were, (i) that the sale was to be complete in,, terms of the sale agreement clause (8) which provided that the decree-holder had to pay a further sum of Rs. 2 lacs to the defendants-judgment-debtors on the expiry of 50 days of the execution of the said agreement and as he had not paid this in spite of demands he was a defaulter (ii) secondly that the sale agreement was to be completed in terms of the consent decree as soon as the impediment on the part of the defendant judgment-debtors to complete the sale was removed. A reference in this respect was made to an order dated 27-8-1968 passed by this Court in suit No. 54 of 1964 holding that the reliefs relating to the specific performance and ancillary thereto claimed by M. Moinuddin Hassan Khan the plaintiff in that suit, were barred under Order II, rule 2, C. P. C. and therefore the defendant-judgment-debtors who were in possession of the disputed land all along, claimed that they had no impediment to complete the sale transaction and were, after 23-8-68 in a position to execute a sale deed in favour of the plaintiff-decree-holder and also to hand over vacant possession of the above land. Such a request was also made by the judgment-debtors to the decree. holder, but the latter had defaulted. (iii) Thirdly that on 18-10-71 the defendant No. 2 in Suit No. 54 of 1964 and Suit No. 226 of 1966 died and the two suits stood abated on expiry of 20 days from the date of his death i.e. on 18-10-71 resulting in a situation whereby the two suits were no longer considered pending in the eyes of law and therefore also in terms of the consent decree the plaintiff-decree-holder could deposit the balance of the same price, within one month from the date of such a disposal of the two suits, failing which they had committed a default in compliance of the terms of the consent decree. These two suits had abated after the order dated 13-4-1974 when this Court refused to allow L. Rs. to be brought on record. In spite of request made by the defendants-judgment-debtors the decree holders failed to deposit even then. An application for special leave had been presented before the Supreme Court but that was also dismissed on 21-12-1974. Hence in any case after the dismissal of that petition for special leave to appeal by the Supreme Court the two suits relating to the disputed land stood abated sad the decree-holder should have deposited the balance amount of the sale price within one month from the date of that order i. e. 21-12-74. (iv) Fourthly, since the- judgment-debtors had failed to acquire 3 acres 14 ghuntas of the land which w4s the snare of tire five minor children of Muhammad Bachal, and as the consent decree was dependent on the acquir ing of this share also, it could no more be executed because the judgment debtors were not the owners of the full land admeasuring 23 acres and 1 ghunta the subject-matter of the suit and also of the consent decree. (v) Fifthly according to the terms of the agreement which was the original agreement dated 5-7-1563 the decree-holder had undertaken to pay the balance of the conversion charges on due dates which the decree-bolder had failed to do and thus committed breach of a condition of the sale agreement. This amounted to default of the agreement as well as of the consent decree. The reason was that the consent decree incorporated the terms of the agreement. Lastly it was contended that the appeals had been filed against the relevant suits and they were still deemed to be pending. As an appeal amounts to a continuation of the suit the suits were thus not finally disposed of and therefore the decree- holder was not entitled to enforce the consent decree.

6. It was also further contended that the decree-holder had to pay a sum of Rs. 14,965 which the judgment-debtors had paid to the Mukhtiarkar Karachi as Sikni charges.

7. Mr. Ajmal Mian the learned counsel for the judgment-debtors insisted that his objections under section 47, C. P. C. be treated and tried as a suit and that he should be allowed to examine witnesses after framing issues. I heard the learned counsel at great length but in support of his above submission he only attempted to describe the nature of the default of the terms as already stated. Although the admitted position was that the two suits referred to above were dismissed on 6-3-75 and 14-2-1973 respectively his contention was that the judgment-debtors had become capable of transferring the property much before these two dates. The decree-holder failed to make the payment although asked to do so, the execution of the decree therefore could not be now made.

8. The main question therefore was, the interpretation of the term "date of dismissal of Suits No. 54 of 1964 and No. 226 of 1966" used in the consent decree. These words, according to him could also mean a date when the judgment-debtors had acquired a capacity of transferring property even otherwise than by a formal dismissal of the suits.

9. The other question for consideration was whether the original agreement of sale could also be looked into in spite of the consent decree having been passed. According to Mr. Ajmal Mian this could be done as the language used in the consent decree itself permitted it. Both these questions were questions of interpretation of the language used in the compromise application and the consequent consent decree, ratter than questions on which evidence was required to be examined. Mr. Ajmal Mian filed a very long list of documents which also purported to show that the judgment-debtor had in fact made attempts and approached the decree-holder to make payments, before the actual and admitted dates of the dismissal of the suits. In other words the language used in the decree meant the date on which impediment in the way of the judgment-debtor were actually removed and not the date of the actual decision taken about suits being dismissed on merits. To support his view Mr. Ajmal Mian candidly submitted that he bad not been able to find a case in which this term as such may have been interpreted and therefore placed reliance mainly on the dictionary meaning of the word, which in law is A "to relieve or free oneself from (a legal burden); to deprive or exclude oneself from (a legal advantage); to send out of Court, refuse further hearing to, reject (a claim or action)". However as he relied on the fact of abatement of the two suits as stated above he cited the case of Wali and others v. Monak Ali and others (P L D 1965 S C 651) where "total abatement" and "dismissal of a suit" had been interpreted, and it was observed :

10. "The first observation to be made while catering upon a discussion of this subject is that abatement as such takes place only as regards the defendant or respondent who dies and when we speak of "total abate ment" of a suit or appeal on the death of one of the defendants or respondents we only mean, that on account of the situation that is created by the abatement of the suit as against a party, the suit or appeal cannot for one season or the other proceed at all. In accord ance with Order XXII, rule 4, C. P. C. the suit abates only "as against the deceased" defendant. and by virtue of rule 11 in case of appeals "respondent" has to be substituted for "defendant". In the Civil Procedure Code of 1882, the relevant provision was section 368 and according to it the suit abated. There was a difference of opinion amongst the High Courts as to whether the suit was to abate totally or only as against the "deceased defendant" and in the Civil Procedure Code of 1908 the words "as against the deceased defendant" were added so as to set at rest the conflict. Abatement as such takes place therefore only as regards the deceased party and it will greatly add to clarity of thought if the expression "total abatement" was altogether avoided when dealing with a situation like the present. When a suit has abated as against the deceased defendant but for one reason or the other it cannot proceed at all the proper order to pass would be to dismiss the suit as against the remaining defendants. The abatement itself does not stand in need of an order for it is automatic. The Court simply records that the suit has abated against the deceased defendant. So far as the living defendants are concerned there has to be an order by the Court dismissing it. No appeal lies against an order simply recording an abatement whereas an appeal will lie against an order of the so-called "total abatement" because it is an order of dismissal of the suit against the living defendants, and as it finally disposes of the suit it will be a decree."

11. The above observation amply clarifies the difference that is created by a dismissal of the suit and an abatement of the suit. Mr. Nusrat the learned counsel appearing for the decree-holder therefore stated that be himself relied on this observation, as it supported the case of his client. He submitted that a dismissal of a suit is not a matter of mere inference, and in the absence of specific order to that effect, the decree-holder was perfectly justified to wait till the dates of actual dismissal of the suits, referred- to above.

12. The decree-holder had complied with strict terminology used in the con sent decree, where it was said that he was to perform his part only after the suits were dismissed. In this context he referred to the judgment of Fakhruddin, J. dated 14-2-1975 which has been produced by Mr. Ajmal Mian himself, arid pointed out to what was .aid in para. No. 4 of the same, which is reproduced, hereunder:

13. The result is that Suit No. 226 of 1966 is dismissed with costs and in so far as suit No. 54 of 1.964 is concerned the plaintiffs have no right to pursue their relief for specific performance and relief ancillary thereto and the suit will therefore proceed for adjudication of money claim made against defendant No. 17 on 26-2-1975."

14. This was again repeated in a further order passed on 6-3-1975 where his Lordship observed:

15. "I have already held by order 22-7-1975 the plaintiff has no right to pursue the reliefs of specific performance and the relief ancilliary thereto and the suit will therefore proceed only for the adjudication of the money claim made against defendant No. 17."

16. Mr. Mohamed Hanif Ramazan appears for the plaintiffs and states no instructions, The plaintiffs as well as Mumtaz Ahmed Khan said to be the attorney of the plaintiffs are called out and are absent. Accordingly the suit is dismissed with costs to the contesting defendant No. 17 who is present and is represented by Mr. Ajmal Mian."

17. The whole argument of Mr. Ajmal Mian thus was that the two suits 54 of 1964 and the connected Suit No. 226 of 1966 had abated as the L. Rs. of the deceased defendant No. 2 Ari had not been brought on record within the statu tory period, with the result that there remained no obstable for the execution and registration of the sale-agreement. On the other hand Mr. S. A. Nusrat learned Counsel for the decree-holder, pleaded that his client had complied with the terms of the consent decree and had deposited is Court the balance amount of the sale consideration on 5th March, 1975 even though the suit No. 54 of 1966 was pending, on that date. The decree-holder could in law, still wait for dismissal of the suit in terms of the compromise decree. Since Suit No. 226 of 1966 was dismissed 14-2-75, while Suit No. 54 of 1964 was still left pending on that date and had not been dismissed until 6th March 1975, the decree-holder was entitled to reckon the time for depositing the money from 6th March, 1975. The terms of the consent decree are in fact to be interpreted according to the plain language used therein, and that clearly shows that the date was to be calculated from the date of the dismissal of the suits, which dates are not disputed. If the amount has been paid before the actual dismissal, as stated, compliance of the terms of the consent decree is definitely made because the decree-holder was certainly entitled to look to the language used in the consent decree itself rather than to adopt the interpretation suggested by the judgment-debtors, which seems to be based on inferences. Admittedly the decree-holder has deposited Rs. 10,000.00 by 10-3-1975 and it can not be said that he had violated the terms of the consent decree.

18. But the learned counsel for the decree-holder raised a further objection to the maintainability of the application made by the judgment-debtors which is based on a new provision introduced in the Civil Procedure Code by Ordinance XII of 1972. By this Ordinance rule 23-A is introduced on 1311-72 which is as under:

19. "O. XXI, r. 23-A. Deposit of decretal amount, etc.-An objection by the judgment-debtor to the execution of a decree shall not be considered by the Court unless--

(a) in the case of a decree for the payment of money, he either deposits the decretal amount in Court or furnishes security for its payment; and

(b) in the case of any other decree, he furnishes security for the due performance of the decree ;

20. Accordingly any objection to the execution of the decree cannot be consi dered by the Court unless the objector furnishes security for the due performance of the decree. Mr. Ajmal Mian submitted that the land which is the subject matter of the suit and the decree could be treated as a security within the meaning of this rule but in the submission of Mr. Nusrat security was to be something extraneous to the subject of the litigation itself. Mr. Ajmal Mian also raised an argument that he had acquired right to file objection under section 47, C. P. C. at a time when this rule had not come into force. That right was without any burden. Now by this amendment which was subsequent to the accrual of that right a burden was being put on the judgment-debtors which cannot be the spirit of the law as this amendment according to him was not retrospective in operation.

21. Obviously the purpose of rule 23-A, C. P. C. was to obtain security which by its nature might be anything, but It should be not involved in the consent between parties, or be the subject-matter of the proceedings. The suit in this case was for the specific performance of the contract in which a consent B decree had been passed and the final orders were to be executed in which the parties had no option but to obey. To say that the subject-matter of the decree itself could be treated as a security in such a case would render the whole rule meaningless. The language used in clause (b) of this rule, appears to be of a mandatory nature, and in the absence of such a security the Court shall not consider the objections. This presupposes the giving of the security before the stage of consideration of the objections arises. The essential question is as to what should be the nature of subject of such a security.

22. By its very nature the term security implies the handing over or deposit ing of some property, or anything valuable, or entering into some bond or recognizance etc. by or on behalf of a person with a view to secure or guarantee the fulfilment of an obligation by him. It also further implies that in the event of non-fulfilment of the so secured obligation, there could be a forfeiture of that security. The suggestion of Mr. Ajmal Mian to treat the land in suit as security is thus clearly not tenable.

23. No objection to the execution of a decree could be considered by the Court unless objector had fulfilled the requirement of sub-clause (b) of this rule. Ex facie this rule appeared fatal to the application made by the Judg ment-debtors and when Mr. Ajmal Mian, the learned counsel was asked as, to what he had to say, he reiterated that the land, the subject matter of the decree and the Execution proceedings may be treated sufficient security for compliance of this rule. Because the land is in the physical possession of the judgment-debtors, they shall abide by the final order passed by the Court and thus no other security need be given. He did not challenge the validity of this rule, but was not willing to give security nor was he prepared to con cede any other interpretation of the language used in this rule, than his own sections 36 to 74. The application filed by the judgment-debtors in the present case is itself under section 47 of the Civil Procedure Code and rule 23-A of Order XXI is promulgated under the heading "Objections to Execution". It by no means takes away the right to file objections to a decree but only is intended to prescribe a procedure whereby the compliance of the decree or orders is secured, at the time of consideration of the same.

24. In the case of Hafiz Muhammad Abdullah v. Imdad Ali (1972 S C M R 173) while considering the effect of amending law on pending proceedings their Lordships were pleased to observe at page 178:

25. "It is now, in accordance with a long line of authorities well settled that an amending law does not operate retrospectively unless the Legisla ture has either by express enactment or by necessary intendment given legislation retrospective effect if the law seeks to alter rights of parties by taking away or conferring any right of action but there is one exception to this rule, namely that enactments, which merely affect procedure .and do not extend to right of action, effect all pending proceedings unless there be words in the statute itself indicating a contrary intention. Now as to "what are 'matters affecting rights and as to what are matters affecting procedure merely an attempt was made by this Court in the case of Adam Afzal v. Capt. Sher Afzal to make a delienation and it was point out that "matters relating to the remedy, the mode of trial, the manner. of, taking evidence and former of action are all matters of procedure."

26. Their Lordships were also pleased to quote with approval the opinion of Craies in his Treatise on Statute Law 5th Edn., at pp. 370-371, "it is perfectly settled that if the Legislature forms a new procedure, that, instead of proceed ing in this form or that you should proceed in another and a different way, clearly thereby by-gone transactions are to be sued for and enforced accord ing to the new form of procedure. Alterations in the form of procedure are always retrospective unless there is some good reason or other why they should not be."

27. A somewhat similar situation as in the instant case arose, in Dhoomchand Jain v. Chairman Lai Gupta and another (A I R 1962 All. 543) with regard to proceedings for setting aside sale on the ground of irregularities etc. under Order XXI, rule 90 while an appeal was pending against an order whereby a Court had rejected an application for setting aside the sale and under Order XXI, rule 90, a clause was added to the above rule on 1-6-57, which was as under :-

28. "(b) Unless the applicant deposits such amount not exceeding twelve and half per cent of the sum realised by the sale or furnishes such security as the Court may, in its discretion fix except when the Court for reasons to be recorded dispenses with the requirements of this clause: provided further that no sale shall be set aside on the ground of irregularity or fraud unless upon the facts proved the Court is satisfied that the applicant has sustained substantial injury by reason of such irregularity or fraud. (2) Where such application is rejected the Court may award such costs to the decree-holder or the auction purchaser or both as it may deem fit and such costs shall be the first charge upon the security referred to in clause (b) of the proviso, it any.

29. As a result the appeal was dismissed for non-compliance of this clause and second appeal was filed in the High Court.

30. High Court while considering the import of this clause, and the question of its retrospective operations, held as under:

31. "It is argued that the appellant acquired a vested right to make an application according to rule 90 as it stood on the date of the execution application, that is on April 4, 1957 and that clause (b) would not accordingly apply to his application. Now, rule 90, provides a remedy to the judgment-debtor for setting aside sale for certain defects and clause (b) of the proviso prescribes the condition for availing that remedy. It enacts a rule of procedure. It would, there fore, ordinarily govern all applications moved after its enactment in execution proceedings whether initiated before or after its enactment. there is no vested right in mere procedure."

32. As the judgment-debtors in the instant case have not given any security within) the meaning of Order XXI, rule 23-A, clause (b) before the stage of consideration of the objections by the Court, their objections to the Execution Application cannot be considered. Even otherwise the judgment-debtors had failed to make out a case for rejection of the application for execution of the consent decree on the basis of their objections.

33. The objections filed against the execution application are therefore rejected. The execution shall proceed as prayed.

34. S. Q. Objections rejected. Execution to proceed.