Mst. YASMEEN vs NATIONAL INSURANCE CORPORATION and others

1. ' In a road accident trailor belonging to respondent No,2, driven by respondent No,3, the applicant was injured and she filed Civil Suit No,670 of 1991 for a decree of Rs,1,05,000 as damages/compensation against the present three respondents. Written statements were filed in the civil suit, issues were framed but, thereafter, suit was not contested by the defendants/respondents. The suit was accordingly decreed on 30-8-1997, by IIIrd Senior Civil Judge, Karachi West. Application for execution of the decree was filed and an objection was taken by the present respondent No,1 that, under the law, their liability was limited to the extent of Rs,20,000 only. The objection was not accepted by the Executing Court and the present respondent No,1 filed Civil Appeal No,42 of 1999. The IIIrd Additional District Judge, Karachi West, by her order, dated 28-7-1999, allowed the appeal, holding that the liability of the appellant/respondent No,1 was fixed by statute and thus, its execution beyond fixed liability was prohibited by law. This judgment of the Appellate Court has been called in question by way of present revision application.

2. ' The suit was decreed against all the three defendants/present respondents as prayed and prayer in the suit was for a decree of Rs,1,05,000 against the defendants jointly and severally. Now the simple question to be determined is whether the Executing Court has to execute the decree jointly and severally for the said amount or it can consider and act upon the liability of the respondent No,1 fixed by law.

3. ' Mr. Nasir Maqsood, learned counsel for the applicant, submitted that the Executing Court cannot go behind the decree and has to execute it as has been passed in support of his contention, he has cited a number of Indian as well as Pakistani authorities. It is now an indisputably established principle that the Executing Court cannot go behind the decree and it is not necessary to cite all those rulings.

4. ' However, the case in Mst. Nasim Akhtar and 4 others v. Shalimar General Insurance Company Limited and 2 others 1994 SCM R 22 is similar to the present one on facts. In that case also, the Insurance Company took a plea of limited liability during execution proceedings. It was observed by the Supreme Court that the decree had become final and in the execution proceedings it was not open to the respondent No,1 (the Insurance Company), to take up the plea which had not been taken before the trial Court during the course of the hearing of the suit which was ultimately decreed and the decree was allowed to become final. It was held in those circumstances, said respondent No,1 itself was responsible for the decree against it even though its liability was limited.

5. It was not open to the respondent No,1/judgment-debtor at that stage to contend that its liability had not been correctly assessed or determined. It was finally observed that if it were permissible, there would be no end or finality to the judgment and decree which had become final.

6. ' In the present case a plea regarding limit of liability was taken by the present respondent No,1 in their written statement filed in the Civil Court, but thereafter, they did not contest the claim of the applicant/plaintiff and allowed the decree to be passed against them. Even thereafter they did not file any appeal to challenge the decree and also allowed the decree to become final.

7. ' Mr. Siddiq Mirza, learned counsel for respondent No,1 submitted that the abovementioned decision of the Supreme Court is not applicable to the present case because a plea about the limit of their liability was taken in the written statement filed in the suit. The contention is not acceptable because the responsibility of the defendant/respondent No,1 was not over just by filing written statement with such a plea. This respondent failed to press the plea before the Civil Court thereafter at the stage of evidence or arguments and also allowed the decree to become final by not filing an appeal to challenge it. In any case, the Executing Court has no jurisdiction to re- determine the liability or reconsider the law for the purpose. The decree had become final and the Executing Court has no option but to execute it as it was passed. The Appellate Court has materially erred in holding that the decree was in-executable as the liability, of the respondent/appellant was limited by law. This could not have been considered at the execution stage.

8. ' The respondents Nos.2 and 3 neither have anything to do with the point involved in this revision, nor their counsel has addressed his arguments on this point. He submitted his arguments on the points not involved in this revision and, therefore, it is not even necessary to mention them.

9. ' In view of the above discussion, the revision is allowed and the impugned judgment/order passed in Civil Appeal No,42 of 1999 is set aside.