PROVINCE OF PUNJAB through Secretary Industries, Government of the Punjab, Civil Secretariat; Lahore vs BUREWALA TEXTILE MILLS LIMITED

' NAZIM HUSSAIN SIDDIQUI, J.---This appeal under Article 185(2) of the Constitution of the Islamic Republic of Pakistan, 1973 is directed against the judgment, dated 28-11-1995, passed by learned Judge in Chamber, Lahore. High Court in EFA No,42 of 1988, whereby the appeal of respondent, Burewala Textile Mills Limited, was allowed and impugned order, dated 4-2-1988 of learned executing Court, was set aside.

2. The facts relevant for decision of this appeal are that the Government of Punjab, set up the Mills during the year 1951-1954 and on 13-7-1954 it was handed over to the respondent as a running concern on the basis of two agreements, dated 13-7-1954 and 11-4-1955 arrived at between the parties. Later on a dispute arose about total cost of the Mill and balance of payment due to the appellant, and it was referred to the arbitrator in 1961 namely (Late) Justice (Retd.) Muhammad Sharif, who, vide award, dated 31-3-1969, held that the respondent was liable to pay a sum of Rs,25,23,400 to the appellant.

3. The appellant filed an application before learned Civil Judge, Lahore for making award rule of the Court and had also prayed therein for future interest from 31-3-1969. This prayer, however, was disallowed.

4. The appellant then filed an application on 3-2-1985 for execution of the decree, dated 1-4-1984 claiming an amount of Rs,34,12,328.64, from the respondent in addition to Rs,38,228.12, as being the amount due towards the customs duty. On 31-10-1987, the Executing Court observed that the amount claimed by the appellant was in excess of the amount shown in the decree and directed that the execution application be amended accordingly.

5. It appears that on 19-11-1987 the appellant, instead of filing the amended execution petition, filed an application under section 114 read with Order 47 Rule 2, C.P.C. For review of the order, dated 31- 10-1987 and this application was allowed by the Executing Court on 4-2-1988, holding the respondent liable to pay interest for the post award period till the date of its payment. The respondent challenged above order before High Court through appeal and it was allowed by order, dated 28-11-1995, which has been impugned in this appeal.

6. It is contended on behalf of the appellant that the interest for post award period is permissible under section 29 of the Arbitration Act, 1940 and, under the circumstances, it should have been granted to the appellant for doing complete justice between the parties, particularly keeping in view the inflationary conditions reducing the money value, which now the appellant is likely to get.

Learned counsel also argued that High Court has failed to appreciate the provisions of section 34, C.P.C. In its true perspective.

7. Learned High Court having taken into consideration the various contentions raised by learned counsel for the parties, reached the conclusion that the Executing Court could not travel behind the terms of the decree, nor it could alter the terms or examine its correctness of proprietary. Learned High Court referred to a decision of this Court reported as Muhammad Ali and others v. Ghulam Sarwar and others (1989 SCM R 640) where it was held that it was well-settled principle that the executing Court could not go behind the decree and was to execute it, unless the decree was patently a nullity.

8. Summing up the case, learned High Court observed as follows:-- ' "There was no ground available to the respondent to file a review petition against the order, dated 31-10-1987 and the impugned order passed on this application by the learned Executing Court is without jurisdiction since the learned Executing Court was bound by the decree and could not go behind it. The award which had been made as Rule of the Court is silent with respect to the payment of any interest from the date of the decree to the date of payment. In such circumstances, by virtue of section 34(2), C.P.C. The Court is deemed to have refused such interest and no separate claim could be made in this behalf before the Executing Court."

9. It is clear that the decree, dated 1-4-1984 had attained finality. The appellant was satisfied when its request for interest for post award period was turned down, as no appeal was preferred against said order. The Executing Court by allowing interest for the post award period, in fact modified/altered the decree without any legal justification. In terms of subsection (2), section 34, C.P.C., if a decree is silent with respect to payment of further interest, it shall be deemed to have been refused.

10. Under the circumstances, the finding of the High Court is perfectly correct and not open to any exception. Accordingly, the appeal is dismissed.