2023 C L C 2134
[Balochistan]
Before Gul Hassan Tareen, J
Syed SALAH -UD-DIN ----Petitioner
Versus
ALI JAN----Respondent
Civil Revision No.181 of 2022, decided on 12th May, 2023.
Civil Procedure Code (V of 1908) ---
----Ss. 47, 115, O. XX, R.11 & O.XXXVII, R.2 ---Suit of recovery of money on the basis of
dishonored cheque ---Execution---Instalment of decretal amount ---Principles ---Petitioner /
judgment debtor was aggrieved of dismissal of his application by Trial Court for recovery of
decretal amount in instalments ---Validity ---Application made by petitioner / judgment debtor
for allowing him to discharge liability of decretal amount through 36 equal monthly instalments was not competent under O.XX, R.11, C.P.C ---According to O. XX, R. 11(1),
C.P.C, for any sufficient reason at the time of passing the decree, Trial Court had a discretion to order that payment of the amount decreed would be made by defendant (judgment debtor) by installments ---Executing Court under O. XX, R.11(2), C.P.C., had power of similar nature
to make an order, on the application of judgment debtor that payment of the amount decreed would be made by installments but not without the consent of decree holder ---High Court
declined to interfere in the order passed by Trial Court as the same was well reasoned ---
Petitioner / judgment debtor failed to deposit decretal amount before the Executing Court and filed baseless petition to deprive respondent / decree holder from the fruits of decree ---
Revision was dismissed, in circumstances.
Mst. Shaheda and 2 others v. Imam -ud-Din PLD 1978 Kar. 472; Feroz Ahmed Khan
v. Fasihullah Sheikh 2007 YLR 2377 and Mrs. Farida Hanif Motiwala v. Qais Mansoor Sheikh 2000 CLC 1328 rel.
Syed Muhammad Zahid for Petitioner.
Jamil Ahmed Khan Babai for Respondent.
Date of hearing: 10th May, 2023.
JUDGMENT
GUL HASSAN TAREEN, J. ----This Civil Revision Petition, under section 115, the
Civil Procedure Code, 1908 ('C.P.C'), is directed from the order dated 16 April, 2022 passed
by the Court of Additional District Judge -VII, Quetta (Execution Court), whereby an
application made by the petitioner No.1 ('petitioner'), under section 151 C.P.C, for payment
of decretal amount in 36 equal monthly instalments, was dismissed.
2. Briefly, facts of the case are that, the respondent instituted a Civil Suit No. 13/2015
under Order XXXVII, Rule 2, C.P.C for recovery of an amount of Rs.20,000,000/ - against
the petitioners. The suit came up for hearing before the Court of Additional District Judge -
VII, Quetta. Respondent averred that petitioner issued a post dated cross cheque dated 27 February, 2015 amounting to Rs.20,000,000/ - towards discharge of his liability of part
payment of price of the property, sold by him to the petitioner. The cheque on presentation stood dishonoured by the concerned bank, as such the respondent instituted a Civil Suit for recovery of Rs.20,000,000/ - against the petitioners. On institution and registration of the suit,
summonses were issued to the petitioners, both entered appearance before the Trial Court and made an application for Leave to Defend the suit which was allowed by the Trial Court vide an order dated 30 May, 2016. The Trial Court framed issues and recorded evidence of the parties. After conclusion of trial, the suit was decreed, whereby petitioner was directed to pay the principal amount of Rs.20,000,000/ - along with simple interest at the rate of 6% per
annum from the date of realization of the amount and costs of suit i.e. Rs.2,22,030/ -. The
petitioner impugned the decretal judgment by filing R.F.A No. 66/2018 before this Court, which was dismissed on 20 July, 2020. Respondent filed Execution Petition before the Execution Court. During execution proceedings, on 11 April, 2022, the petitioner made an application to the Execution Court for allowing him to pay the decretal amount in 36 equal monthly instalments. Respondent contested the application and, the Court vide order dated 16 April, 2022, directed the petitioner to deposit the decretal amount in two equal instalments, along with simple interest at the rate of 6% per annum, on 10 May, 2022 and 10
June, 2022.
3. Syed Muhammad Zahid, learned counsel for the petitioners states that the petitioners
have filed a Civil Petition for Leave to Appeal before the Supreme Court of Pakistan against the judgments, passed by the Trial Court and affirmed on appeal by this Court, which is still pending. Learned counsel further states that petitioner is ready to give his property to the respondent at the current market rate for satisfaction of the decretal amount. He also states that during pendency of Execution Application, the petitioners placed an immovable property before the Court as security and respondent may take such property from the petitioners at the current market rate for discharge of the decree. Finally, he states that the petitioners are ready to pay the decretal amount to the respondent in 36 equal monthly instalments.
4. On the other hand, Mr. Jamil Ahmed Khan Babai, learned counsel for the respondent
states that a Court may, for any sufficient reason, at the time of passing decree for payment of money, order that payment of the amount decreed shall be made by instalments and where the Court has not passed any such order, then an Execution Court, on the application of a judgment debtor cannot make an order that payment of the amount decreed shall be paid in instalments without consent of the decree holder and referred to Or der XX, Rule 11, C.P.C.
He further states that a judgment debtor may make such an application within a period of six months from the date of decree, whereas the application made by the petitioner was made on 11 April, 2022, which was barred by time under Article 175, Schedule -I, the Limitation Act,
1908 ('Act, 1908').
5. Heard. Record perused.
6. So far as question of limitation is concerned, Article 175, the Act, 1908 prescribes six
months time limitation for making an application for payment of the amount decreed by
instalments. The period of six months begins to run from the date of the decree. In this case, the judgment of the Trial Court was affirmed on appeal by this Court vide judgment dated 20 July, 2020. The judgment of the Trial Court was merged in the judgment passed by this Court; therefore, on the principle of merger, the decree to be executed is of this Court. The petitioner could have made an application for payment of the decreed amount by instalments from the date of the decree i.e. 20 July, 2020, when appeal was dismissed by this Court. The petitioner made application for instalments on 11 April, 2022, after almost twenty one months of the judgment passed by this Court clearly long after six months expired. The petitioner belatedly made such application and that too, without making a separate application for condonation of such an inordinate delay. On this count, the petitioner's application was barred by time. I may place reliance on the case law reported as Mst. Shaheda and 2 others v. Imam -ud-Din (PLD 1978 Karachi 472), wherein the Karachi High
Court has held as under:
"It was then contended by Mr. Arif that the period of limitation would be computed from the date of the decree in appeal. Counsel submitted that against the order, passed by this Court dated 7- 2-77 ordering attachment of the property of the JD, an appeal
has been preferred, and consequently the date of decree would be the date of the order in appeal. In support of this proposition counsel cited the case of Abdul Karim v.
Marans San Kyaw (1) in which it was held that the only decree for purposes of Article 175, Limitation Act is the decree of the appellate Court and, therefore, the period of limitation would be computed, even in cases of dismissal of appeal, from the date of the decree of the appellate Court. The contention is misconceived for, as pointed out earlier, the decree in this case was not appealed against and as such there is no question of merging of the decree in the appellate decree. In the reported case the facts were that an appeal was taken to the appellate Court against the original decree and it was held that the period of limitation for an application under Order XX, Rule 11, C.P.C. would be computed from the date of the appellate decree as the original decree merged in the appellate decree. However, the facts of the present case are obviously distinguishable inasmuch as the appeal relied upon is the appeal against the order in execution and not against the decree as such. Under the circumstances viewed from any angle the limitation in this case would commence from the date of the decree in respect of which the request for instalments has been made. Computing the limitation in this manner the present application is unquestionably barred by limitation."
In this regard, I may also place reliance on the case, reported as Feroz Ahmed Khan v.
Fasihullah Sheikh (2007 YLR 2377), wherein the Karachi High Court has held as under:
"Article 175 of the Limitation Act, 1908 provides limitation for six months for filing an application for payment of decretal amount in instalment whereas the instant
application has been moved after eleven months without any application for
condonation of delay. The application not only appears to be hopelessly barred by time but if allowed would virtually frustrate the decree by allowed its payment in more than eight years ad looking at the rate of inflation such request cannot be allowed. In the circumstances and for what has been discussed above listed
application at Serial No. 1 is dismissed."
6 (sic). The application made by the petitioner for allowing him to discharge the liability
of the decreed amount through 36 equal monthly instalments was not competent under Order
XX, Rule 11, C.P.C. According to Order XX, Rule 11(1), C.P.C, a Trial Court has a
discretion for any sufficient reason at the time of passing the decree, order that payment of
the amount decreed shall be made by the defendant by instalments. The Execution Court
under Order XX, Rule 11 (2) C.P.C has like nature power to make an order, on the application of the judgment debtor that payment of the amount decreed shall be made by instalments. However, under Order XX, Rule 11, sub rule (2) C.P.C, the Execution Court cannot order for payment of decreed amount by instalments without the consent of the decree holder. Order XX, Rule 11, C.P.C is reproduced hereunder:
"Order XX, Rule 11, C.P.C. Decree may direct payment by instalments. ---(1) Where
and in so far as a decree is 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.
Order, after decree, for payment by instalments. - (2). 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."
7. In this case, the Trial Court, while passing the decree for payment of money, had not
made an order that payment of the amount decreed shall be made by instalments. The application made by the petitioner for payment of the amount decreed by instalments was contested by the respondent by filing reply; as such the Execution Court has rightly dismissed the application of the petitioner. The function of an Execution Court is to execute the decree as it finds it and not to substitute a new decree. It is quite obvious that the legislature does not contemplate the prolongation of execution proceedings by successive baseless applications. Authority has conferred by Order XX, Rule 11, C.P.C for directing payment by instalments. But unless passed at the time of passing of the decree, such an order can be passed only on the application of the judgment debtor (if made within six months from the date of decree) and that too, with the consent of the decree holder. Reliance is placed on the case reported as Mrs. Farida Hanif Motiwala v. Qais Mansoor Sheikh (2000 CLC 1328), wherein it has been held as under:
"Learned counsel for decree- holder is present with decree- holder and they do not
concede to grant of payment by instalments. It is well -settled that a decree- holder
cannot be compelled by the Court to accept payment of amount decreed; in
instalments. The power under section 151, C.P. C. cannot be exercised in favour of judgment -debtor by overlooking the express provision of law. On this point Mehar
Sultan Jung v. Qurban Hussain 1972 SCMR 73 may be quoted with advantage. Consequently, the application is dismissed."
8. So far as contention of petitioner's counsel that petitioners' Civil Petition for Leave to
Appeal No. 195- Q/2022 is pending before Supreme Court of Pakistan is concerned, the same
is not well founded because under Order XX, Rule 1 the Supreme Court Rules, 1980, mere filing of a Petition for Leave to Appeal or an appeal would not amount to suspension of the
impugned judgment or stay of an execution proceedings.
I have gone through the impugned order of the Execution Court, which is well
reasoned. Petitioner failed to deposit the decretal amount before the Execution Court rather
has filed this baseless Civil Revision Petition to deprive the respondent from the fruits of the decree. The petition is therefore, dismissed with costs of Rs.25,000/ -.
MH/146/Bal. Revision petition dismissed.This judgment is reproduced from a publicly available source for informational purposes and does not constitute legal advice. If you believe this listing contains an error,
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