PAKISTAN INDUSTRIAL CREDIT AND INVESTMENT CORPORATION LTD. vs MAHBOOB INDUSTRIES LTD. AND 10 OTHERS

ORDER

' The plaintiff brought this suit for recovery of Rs, 38,96,374.50, under Order XXXIV, C. P. C. The suit was partly decreed. By the judgment dated 12-8-1979 and, it was held that the foreign loan was repayable at the rate of exchange prevailing on the date when the loan became due or payable and not at the rate_of exchange prevailing on the date of actual payment or the date of filing of the suit or on the date of passing of the decree. An Intra-Court Appeal was preferred against the judgment, which was dismissed.

2. Thereafter, on 6-4-1982, the office submitted the decree for signature, but on 17-4-1982, before signing the decree I ordered notice to the counsel for the parties to provide them an opportunity to see the draft decree and prefer objections, if any, to the same.

3. Pursuant to the notice the learned counsel for the parties are present.

4. Mr. Khalid Anwar has pointed out that on 27-2-1982, the President of Pakistan has promulgated an Order called "The Foreign Currency Loans (Rate of Exchange) Order 1982 (President's Order No, 3 of 1982), which in Clause .4, sub-clause (2) provides that any order, writ, judgment, decision or decree of any Court, made, given, issued or passed before or after the commencement of the Order, which is inconsistent with the provisions of the Order, shall be null and void and of no effect.

5. On the basis of the said provisions Mr. Khalid Anwar submits that since the judgment delivered in the suit is inconsistent with the provisions of Clause 3 of the Order, the judgment is null and void.

The provisions of Clause 3 read as follows "3. Rate of exchange applicable to foreign currency loans.-For the removal of doubts, it is hereby declared that, notwithstanding anything contained in any other law for the time being in force, the judgment, of any Court or any agreement, contract or other instrument, the rate of exchange, for the purpose of conversion into Pakistan currency for repayment in respect of an outstanding foreign currency loan or any part thereof or interest in respect is thereof payable to a financial institution on the day of commencement of this order shall be, and shall be deemed at all material times to have been, the rate of exchange in force under section 23 of the State Bank of Pakistan Act, 1956 (XXXIII of 1956), on the day on which the loan, part or interest is actually repaid or paid to the financial institution and all parties by whom the loan, part or interest is repayable or payable shall make the repayment or payment accordingly".

6. Mr. S. A. Jamil does not dispute that the judgment is inconsistent with the provisions of Clause 3 of the Order. He however, submits that since the decree follows the judgment and bears the same date as that of the judgment as provided in Order XX, rule 7 read with section 33, C P. C, it must be signed in accordance with the said provisions. However, I am of the view, that since the judgment has already become null and void and is of no effect by virtue of the provisions of Clause 3, sub- clause (3) of the Order the question of preparation of the decree and signing the same does not arise for what is null and void and of no effect has no legal existenoe. Further, even if a decree has to bear the same date as that of the judgment as provided in rule 7, Order XX, C. P. C. It would not make any difference for the decree has to follow the judgment and if the judgment being inconsistent with the provisions of the order, is null and void the deoree will also be inconsistent with the provisions of Clause 3, sub-clause (3) of the Order and therefore, null and void, irrespective of the fact whether it was passed and signed before the commencement of the Order or after the commencement, for the provisions Of Clause 30 sub-clause (3) would apply in both cases.

8. I therefore, hold that the decree need not be prepared and signed on the facts and circumstances of this case.