ABDUL QAYYUM ARIF Versus AGHA GUL
CH. IJAZ AHMED, J.--- The brief facts are that respondent No. 1 filed a suit for recovery of Rs.13,00,000 against the petitioner before .the learned Additional District Judge, Quetta on the basis of promissory note. The petitioner submitted an application for leave to defend the suit before the aforesaid Court, which was dismissed and for suit of respondent No.1 was decreed against the petitioner on 5-6-1998 by the learned Additional District Judge, Quetta. The petitioner being aggrieved filed appeal before the High Court Balochistan at Quetta which was also dismissed. The petitioner being aggrieved filed application for leave to appeal before the Honourable. Supreme Court which was dismissed for non-prosecution. Respondent No.1 filed an execution petition before the learned Additional District Judge, Quetta which was transferred -by the learned District. Judge, Quetta for execution to the learned District Judge, Lahore, who entrusted the same to the Court of Mr. Ijaz Ahmed Chadharr, Additional District Judge, Lahore, who attached the Bungalow No.8/H, Gulberg-III, Lahore on 10-4-1999 and also issued notice to the petitioner for his appearance in the Court for 1-6-1999 to show cause as to why the same be not sold by the way of auction to recover the decretal amount. Respondent No.1 also filed an application before the learned Transferee Executing Court for the arrest and detention of the petitioner on 16-6-1999. The learned Executing Court ordered to issue non-bailable warrant of arrest of the petitioner. The petitioner being aggrieved filed Revision Petition No.974 of 1999 before this Court and subsequently, the revision petition was withdrawn by the petitioner with permission to file from one as is evident from order dated 13-10-1999 passed by this Court in the said revision petition. Respondents Nos.2 -and 3 submitted an objection petition before the Executing Court on the ground that the judgment-debtor/petitioner had entered into agreement to sell with the respondents Nos.2 and 3 qua the aforesaid house. Petitioner had already delivered the possession of Bungalow in question to them and prayed that attachment order, dated 10-4-1999 be set side. The objection petition is still pending adjudication before the learned Transferee Executing Court. The learned Executing Court passed the orders against the petitioner on 28-1-2000, 14-1-2001 and 27-3-2001 which reveal that the Executing Court had issued warrant of arrest of the petitioner and his detention in civil petition. The petitioner being aggrieved, filed this civil revision.
2. The learned counsel of the petitioner submits that the aforesaid orders of the learned Executing Court were passed in violation of section 51 and Order XXI, rule 37, C.P.C. which is mandatory in a nature. The orders were passed without adopting the proper procedure laid down in the aforesaid provisions of law. He further submits that Executing Court has no authority to issue warrant of arrest of the petitioner in the presence of attachment order of the house in question of the petitioner. He further urges that the house in question of the petitioner which was attached by the learned Executing Court is more than amounting to Rs.90,00,000 whereas decree passed against the petitioner is in the sum of Rs.19,15,012, therefore, attachment of the house of the petitioner in this view of the matter, is sufficient to secure the decretal amount, but this fact was not considered by the learned Additional District Judge at the time of passing the impugned order against the petitioner. He further submits that when the specific procedure is prescribed under section 51 of C.P.C. read with Order XXI, rule 37, then the Executing Court is bound to follow the same, therefore, any order passed by the learned Executing Court against the petitioner which is in derogation of the prescribed procedure, same is not sustainable in the eyes of law. He further submits that the Executing Court did not pass the order after inquiry but the Executing Court did .not pass the impugned order after applying his independent mind and did not hold any inquiry, therefore, the impugned orders are not in accordance with law laid down by the superior Courts. In support of his contention, he relied upon, the following judgments:--
Mohsin Ali v. National Bank of Pakistan 1987 CLC 1419, Mono Mohan v. Upends Mohan Pal and others AIR 1935 Cal. 127 and Jugal Kishore and others v. Pahlad Rai and others AIR 1939 Pat. 22.
3. The learned counsel of respondent No.1 submits that the petitioner approached this Court with unclean hands. The petitioner filed Civil Revision No. 1947 of 1999 qua the same subject-matter and relief through which the petitioner challenged the vires of the order of learned Executing Court dated 16-6-1999. The operation of which was suspended by this Court vide order, dated 24-5-1999 subject to the condition that the petitioner shall invest the decretal amount in some profit bearing scheme National Saving Centre within a period of 2-1/2 months as per his undertaking and the petitioner failed to deposit the said amount. Subsequently, the petitioner had withdrawn the aforesaid revision petition on the ground that original decree was suspended by the Honourable Supreme Court vide order dated 7-10-1999 with permission to file fresh one. He further submits that the impugned orders were passed by the learned Executing Court after applying his independent mind. The petitioner failed to deposit the amount of Rs.3,00,000 as directed by the learned Executing Court. The house of the petitioner bearing No.8/H, Gulberg-III, Lahore was attached by the learned Executing Court vide order, dated 10-4-1999. The respondents Nos.2 acid 3 filed objection petition on the ground that the aforesaid house had been sold by the petitioner to respondents Nos.2 and 3 on 10-3-1998 as is evident from transfer letter issued by the L.D.A. and decree was passed against the petitioner by the learned trial Court on 5-6-1998. He further submits that the Executing Court after applying his independent mind qua the requisite means of the petitioner to pay the decretal amount, passed the impugned orders. He further urges that even contents of the revision petition reveal that property of the petitioner is more than Rs.90,00,000 and the petitioner had received sufficient amount from the respondents Nos.2 and 3, therefore, learned Executing Court was justified to pass the impugned order against the petitioner. The judgments cited by the learned counsel for the petitioner are distinguished on facts and law. The petitioner does not want to satisfy the decree passed by the learned trial Court on 5-6-1998.
4. The learned counsel of respondents Nos.2 and 3 submits that the impugned orders are valid and the question of recording of evidence of the decree-holder, does not arise in the present case as the petitioner/judgment-debtor did not deny his liabilities. Ho further' submits that either the petitioner himself or his counsel had given undertaking before the learned trial Court to satisfy the decree, but subsequently, did not honour his commitment, therefore, the-petitioner is not entitled of any discretionary relief.
5. I have given my anxious consideration to the contentions of the learned counsel of the parties and perused the record myself.
6. The provision of Civil Procedure Code has imposed no obligation to execute the decree by one method before resorting to another. The learned Executing Court can adopt any mode as provided in the case in addition to mode prescribed by section 51, C.P.C. the Code had further provided modes for executing of the decree as is evident from section 54 of C.P.C. "partition of estate, Order XXI, rule 31(2) of award of compensation under Order XXI, rule 32, enforcement of decree for restitution of conjugal rights, etc. Order XXI, rule 33, enforcement of decree for restitution of conjugal rights under Order XXI, rule 53, attachment of decrees, under Order XXI, rule 56, delivery of attached property".
7. It is also settled principle of law that decree may be executed simultaneously against both the persons and the property of the judgment-debtor. In arriving to this conclusion, I am fortified by the following judgments:--
Syed Muhammad Hussain v. Cooperative Society AIR 1943 Lah. 166 and Venkappa and others v. Lakshmi Kant Rao AIR A 1956 Hyderabad 7.
It is the duty of the learned Executing Court to provide assistance to the decree-holder in execution of his decree and it should, therefore, otter him all possible and reasonable facilities for realizing the decretal amount in short time as possible as per principle laid down by the Calcutta High Court in case Mharaj, Bahadur Singh v. Mafiz-ud-Din Chaudhry and another AIR 1936 Cal. 238. It is the duty of the decree-holder to prove that the judgment-debtor has means to satisfy the decree in view of provision of section SI of C.P.C. It is also settled principle of law that in case judgment-debtor does not appear or does not lead any evidence and would not absolve the duty and obligation of the decree-holder from leading evidence as prescribed under Order XXI, rule 40 to satisfy the Court about the existence of such grounds. It is also duty of the Court to record reasons in writing of such satisfaction as per principle laid down by the Honourable Karachi -High Court while interpreting section 51 and Order XXI, rules 37 and 40, C.P.C. in case Mohsin Ali v. National Bank of Pakistan 1987 CLC 1419. It is also duty of the Court to issue show-cause notice to the judgment-debtor in vice of aforesaid provision of law and then proceed in the matter as per principal laid down by Calcutta High Court in case, Mono Mohan Upends Mohan Pal and others AIR 1956. Mad. 580. In spite of proviso of section 51 read with Order XXI, rule 40, the Court had discretion to order for the arrest of the judgment-debtor as per principle laid down by Madras High Court and this Court in the following judgments:---
Muttalif alias Muhammad Abdul Kadir v. Meenakshi Sutideram Pillai and another (AIR 1944 Mad. 191), (AIR 1926 Lah. 110).
It is also settled principle of law that there must be some element of bad faith beyond mere indifference to pay, some deliberate or alternatively, current means to pay the decree or substantial part of it, meaning thereby the aforesaid provision emphasizes the need to establish not mere omission to pay but an attitude of refusal on demand verging on dishonest disowning of the obligation by decree. In arriving to this conclusion, I am fortified by the following judgments:---
Jolly G. Varghese v. Bank of Cochin AIR 1980 SC 470 and Kunchumerra Rawther Ali v. Mathai Thomas AIR 1982 Kerala 10.
It is also settled principle of law that decree-holder has a right to avail both remedies i.e. of attachment of property of the judgment-debtor and B also for his arrest as per principle laid down by this Court in case Syed Muhammad Hussain v. Cooperative Society AIR 1943 Lah. 166.
It is better and appropriate to reproduce basic facts and operative part of the relevant orders of the learned Executing Court to resolve the controversy between the parties in view of aforesaid principle laid down by the superior Courts. The learned Additional District Judge, Quetta passed the decree against the petitioner amounting to Rs.13,15,012 on 5-6-1998. The decree-holder filed an execution petition before the Executing Court and the Executing Court transferred the decree to the learned District Judge, Lahore who entrusted the same to the learned Additional District Judge, Lahore. The petitioner's House No.8/H, Gulberg-III, Lahore was attached by the learned Executing Court, Lahore vide order, dated 10-4-1999. On 21-5-1999 respondents Nos.2 and 3 filed an objection petition against the order of attachment of property on the ground that the house in question was purchased by them from the petitioner for consideration of Rs.60,00,000 and transfer order has also been issued by the L.D.A. authority in favour of respondents Nos.2 and 3 on 10-3-1998; whereas the decree was passed against the petitioner by the learned Additional District Judge, Quetta on 5-6-1998 which is still pending adjudication.
9. The decree-holder filed a-n application before the learned Executing Court on 16-6-1999 for the arrest and detention of the petitioner. Thereafter, the warrant of arrest of the petitioner was issued by the learned Executing Court. The petitioner filed Civil Revision No.974 of 1999 and subsequently, the petitioner' had given undertaking to deposit the decretal amount in some profit bearing scheme within a period of 2-1/2 months. The operation of the aforesaid orders were suspended by this Court vide order, dated 24-6-1999. The petitioner did not comply with the aforesaid order. The petitioner withdrew the revision petition on 13-10-1999 as the original decree was suspended by the Honourable Supreme Court with permission to file fresh one. The learned counsel of the petitioner had given undertaking to deposit Rs.3,00,000 to respondent No.1/decree-holder in the Court under instructions of the petitioner. The order dated 4-1-2002 further reveals that the petitioner did not comply with the direction of learned Executing Court's order, dated 27-3-2001 and case was fixed for I1-1-2002. On 27-3-2001, the petitioner was directed to deposit the decretal amount. The petitioner failed to comply with the orders of learned Executing. Court dated 27-3-2001 and 4-1-2002 and as such warrant of arrest of the petitioner was issued by the learned Executing Court. It is better and appropriate to reproduce the operative part of the order, dated 27-3-2001 for ready reference:--
In case, the foresaid facts are put in juxta-position, then it brings the case of the petitioner in the area that the petitioner does not want to pay or satisfy the decree at all, meaning thereby the petitioner dishonestly and malafidely on his part to discharge his obligation. It is pertinent to mention here that the petitioner did not deny the facts of selling the house to respondents Nos.2 and, 3 and transfer letter was issued by the L.D.A. to respondents Nos.2 and 3 in the presence of the petitioner which shows that the petitioner approached this Court with unclean hands. It is settled principle of law that revisional jurisdiction is a discretionary in character, he who seeks equity must come with clean hands.
10. In view of aforesaid circumstances, I am not inclined to exercise my discretion in favour of the petitioner. The judgments cited by the learned counsel of the petitioner are distinguished on facts and law as in the cited judgments, the petitioner approached the Courts with clean hands, therefore, judgments cited by the learned counsel of the petitioner, are distinguished oil facts and law and have no relevancy to resolve the controversy between the parties in view of conduct of the petitioner.
In view of what has been discussed above, this civil revision has no merit and the same is dismissed.
H.B.T./A-102/L Revision dismissed.