COMMERCE BANK LTD KARACHI Versus SARFARAZ AUTOS KARACHI

1. This application under section 151, C. P. C. has been made by the judgment-debtors with a prayer to confirm and approve an arrangement, settled between them and the decree-holders for the execution of the final .decree for sale of mortgage-property passed against them on 16-10-1972.

2. In order to appreciate the prayer it would be convenient to state a few facts of the case. The decree-holders being a bank had filed Suit No. 7 of 1970 which was decreed for Rs. 64,337.93 with costs, and interest at 9J per cent. from 1-10-1969 to 31-1-1973 but as the judgment-debtors failed in compliance, a final decree was passed on 17-10-1972 for sale of the mortgage property the notice whereof was served on the judgment-debtors as late as 16-8-1975. They have now filed this application stating that a net balance payable by them from 1st June 1975 was Rs. 73,200.44 and that they had approached the decree-holders with the proposal that the latter should accept this amount in monthly instalments of Rs. 3,009 each from August 1975 and that no future interest from 1-4-1975 might be charged on -this balance amount and that a lump 'sum of Rs. 2,000 was also to be allowed at the time of payment of the final monthly instalment. There was one more term of this arrangement that if the judgment-debtor committed default in payment of the monthly instalment by 7th of any of the months "then this execution application shall stand granted without any further notice to the judgment-debtors and the mortgage property be put to auction" and for which notice was waived. The decree-holders have agreed to these terms, hence this consent application.

3. As no one appeared for the judgment-debtors at the time of hearing of this application I asked Mr. Valliani learned counsel for the decree-holders -whether this application was competent under section 151 of the C. P. C.

4. He pointed out that the prayer embodied in the application would be covered by the provision made in Order XX, rule 11, sub-clause (2) of the C. P. C. and therefore the question of section 151 may not arise. I had therefore first to examine the provision referred to by the learned counsel and .it read as under :-

5. "O. XX, r.

11. Decree may direct payment by Instalments.-(1) Where and in so far as a decree for the payment of money, the Court may for any sufficient reason at the time of passing the decree, order that payment of the amount decreed shall be postponed or shall be made by instalments, with or without interest notwithstanding anything contained in the contract under which the money is payable.

(2) Order, after decree, for payment 6y instalments.-After the passing of any such decree the Court may, on the application of the judgment debtor and with the consent of the decree-holder, order that payment of the amount decreed shall be postponed or shall be made by instalments on such terms as to payment of interest, the attachment of the property of the judgment-debtor, or the taking of security from him, or otherwise, as it thinks fit."

6. Upon a plain reading this rule empowers the Court that passes a decree to postpone the payment of the amount decreed, or to order its payment by instalments etc. Such an order could -be made at the time of passing the decree as provided in sub-clause (1), or even after that as is distinguishably provided in sub-clause (2). As to whether the above rule empowers the Executing Court as distinguished from the original Court passing the decree to allow payment by instalments Mr. Valliani contended that the decree having been passed by the High Court itself on the original side it made no difference if the orders are passed by the same Court though fn Execution Proceedings.

7. I am afraid I cannot agree to this submission of the learned counsel. The Scheme of the Code of Civil Procedure clearly shows that the work done by the Civil Courts is firstly that of deciding disputes between the parties and secondly to enforce the decisions thus made. These functions are distinct. The Court deciding the disputes concludes its proceedings either by passing a decree or an order which terms are separately defined in the Code itself. The function of enforcing a decree or an order commences only when a party expressly moves the Court for that purpose. The action then taken by the Court is termed as "proceedings in execution". Clearly, therefore, a decree is passed when the Court conclusively determines the rights of the contesting parties and the Court that is called upon to execute the same is bound by the terms of the pronouncement made by the Court that so determines the rights and has no power either to add or vary those terms. Under section 38 of the C. P. C. a decree may be executed either by the Court which passed it or by the Court to which it is sent for execution, but the questions which could be determined by the Court executing the decree have been specified in section 47 of the Code. These questions are limited to those relating to the execution, discharge or satisfaction of the decree. But they have never been construed to empower the executing Court to go behind the decree itself. The powers and functions being thus defined it is difficult to see how clause (2) of the rule 11 could be extended to apply to the Executing Court although it may be the same that passed the decree. The proposition that the Court which passes the decree alone A has power to act under Order XX, rule 11, clause (2) and it is not within the power of the Executing Court to do so is well settled as has been held in A I R 1918 Mad. 1174, A I R 1932 All. 273 and A I R 1943 Nag. 340.

8. The learned counsel however referred to an observation made by ,Sulleman, J., in the case of Gobardhan v. Dau Daya (A I R 1932 All. 273), a Full Bench case which reads as under :-

9. "Although the words in section 48, C. P. C. are more general, the order under Order XX, rule 11, C. P. C. can be passed by the original Court only. Where the execution Court happens to be the same Court which made the decree, one need not be too technical in insisting that the order must have been passed by the original Court acting as such and not acting in the execution department. What is essential is that the intention must have been to pass an order under Order XX, rule 11 on the application of the judgment-debtor and with the consent of the decree-holder. Where the Courts are not different it would hardly matter how the Court actually describes itself. but the order must be intended to be an order under that Rule."

10. These observations were made by their Lordships while considering in appeal, an order that had already been passed. But even so the submission of the learned counsel is still not free from difficulty, as under Article 175 of the Limitation Act an application under sub-clause (2) is required to be made within a period of 6 months from the date of the decree, and in this case the date of the preliminary decree being 4-8-1970 and that of the final decree being 16-10-1972, an application of this nature made on 16-8-1975, was in any case barred by limitation.

11. Again in the case of Vasanta Kumar Mitra v. Chota Nagpur Banking Association Limited (A I R 1948 Pat. 18), while considering the question whether the provisions of Order XX, rule 11, C. P. C. applied to a mortgage decree, it was observed :-

12. "Finally a prayer is made on behalf of the appellant that the amount found due from him be made payable in instalments under the provisions of Order XX, rule 11, C. P. C. This prayer cannot be granted as it is clear from the terms of this Rule that it applies to money decree and not to a mortgage decree."

13. In this view of the matter it was possible to think that the judgment debtors had deliberately chosen to make the application under section 151, C. P. C., and as they are not represented, it is necessary to examine the applicability of that section also which reads as under -.-

14. "151. Saving of inherent powers of Court.-Nothing in this Code shall be deemed to limit or otherwise affect the inherent power of the Court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the Court."

15. In this context Mr. Valliani the learned counsel for the decree-holder, argued that this section could be resorted to specially when the parties had themselves arrived at some settlement, and it would be to serve the ends of justice by implementing such prayers which are made with consent of the contesting parties.

16. This argument of the learned counsel, though attractive, overlooked the fact that the real question for consideration is limited i.e. whether this Court could exercise powers under section 151, C. P. C., and pass orders for the making of which though there is provision in the Code, but the same cannot be availed of on account of the bar created by the Limitation Act, or for that matter could the consent of the parties make such an order a valid order ?' In Falahul Momineen v. V. P. Abdullah (P L D 1970 Kar. 179). my learned brother Muhammad Haleem, J. while considering the import of section 151, C. P. C. said that "the Legislature has in the Civil Procedure Code provided for all possible eventualities and to such matters which were not foreseen at that time, a provision like section 151, C. P. C. was enacted to empower the Courts to meet such an unforeseen eventuality. Apart from section 151, C. P. C, the Court has also inherent power to take all steps to execute its own mandates and orders as this power flows from the jurisdiction itself. The -support of this view can be had from the following passage on page 186 of Corpus Juris Secundum. Volume 21 :-

17. "While a Court may be expressly granted the incidental powers necessary to effectuate its jurisdiction, a grant of jurisdiction in the absence of prohibitive legislation, implies the necessary and usual incidental powers essential to effectuate, it, and, subject to existing laws and constitutional provisions. every regularly constituted Court has power to do all things that are reasonably necessary for the administration of justice within the scope of jurisdiction, and for the enforcement of its judgments and mandates."

18. This power has been judicially recognised and stated as an implied power flowing from the jurisdiction itself in the Interpretation of Statutes by Maxwell, 10th Edition on page 136 :-

19. "Where an Act confers a jurisdiction, it impliedly also grants the power of doing all such acts, or employing such means, as are essentially necessary to its execution, Cui jurisdictio data est. ea quoque concessa essee videntur, sine quibus jurisdlctio explicari non potuit. Thus, an Act which empowered justices to require person to take an oath as special constables, and gave them jurisdiction to inquire into an offence, impliedly empowered them to apprehend the persons who unlawfully failed to attend before them for those purposes. Otherwise the jurisdiction could not be effectually exercised."

20. Thus there has first to be jurisdiction in a Court before the inherent power as envisaged in section 151 could be invoked. Use of such a power cannot be resorted to independently as it exists only in aid of the jurisdiction that is specified in the Code. This obviously would mean that power under section 151, C. P. C. could be exercised for the performing of acts or passing orders, for which there may not be any manifest provision in the Code of Civil Procedure, but which must in the first instance flow from provisions which define the jurisdiction of the Court itself. And as in the present case, making of an order for payment by instalments could be made but only within a prescribed period. I do not see how resort could be made to the provision in section 151, to make it possible to pass such an order after thel ,expiry of the time limit.

21. The learned counsel has laid great stress on the consent of the parties ; but the bar of limitation, though may appear to create hardship for the consenting parties, has got to be enforced, as the Legislature has cast a duty upon the Courts to see that remedies are sought within the prescribed time and never after : and as observed by their Lordships of the Privy Council in Nagendra Nath Dey and another v. Suresh Chandra Dey and another (AIR 1932PC165):

22. "The fixation of period of limitation must always be to some extent arbitrary, and may frequently result in hardship. But in construing such provisions equitable considerations are out of place, and the strict grammatical meaning of the words is the only safe guide."

23. Now even the consent of the decree-holder to this application under section 151, C. P. C. is in these terms :

24. "The decree-holder have no objection to grant of this application by the judgment-debtor, without prejudice to their rights to press for the sale of the mortgaged property in accordance with the judgment and final decree dated 16-10-1972 provided this Hon'ble Court is pleased to grant extension of time for payment of decretal amount as prayed by the judgment-debtor and the above execution application is held in abeyance."

25. Clearly this is a qualified consent and depends on the order of this' Court to grant the payment of the decretal amount as prayed. But even if it be treated as consent to allow payment by instalments, as the learned counsel for the decree-holder argued, the same could not be allowed by an executing Court. In a Full Bench case, Lvehtraj Kumar Mahmud ',Hassan Khan v. Motilal Banker (A I R 1961 All.), it has been observed at page 10

26. "While the Code contains no general restriction on the liberty of the parties to enter into a contract with reference to the rights and obligations under the decree, the Code does not permit such contract to be enforced in execution proceedings by engrafting the compromise on a decree which is sought to be executed. Sections 42 and 47 clearly define the limits of the powers of the Executing Court. Order XXIII, rule 4 further clarifies the position when it makes the other rule in that order (including rule 3 which deals with compromise between the parties) inapplicable to proceedings in execution of a decree or order. On a correct interpretation of rule 4 it would appear that no agreement or compromise can be entertained or recorded in execution proceedings as might be done during the pendency of the suit. The provisions of Order XX, rule 11(2) indicate how the decree may be modified in regard to time for payment or instalment even where parties agree, only by the Court which passed the decree."

27. These observations are fully applicable to the present case and as a result the application is dismissed but with no order as to costs.

28. S. Q. Application dismissed.