2013 M L D 569
[Balochistan]
Before Mrs. Sy eda Tahira Safdar, J
IRFAN BASHIR ---Petitioner
Versus
SINGER PAKISTAN LTD. and 3 others ---Respondents
Civil Revision No.225 of 2010, decided on 21st December, 2012.
Civil Procedure Code (V of 1908) ---
----Ss.2(11), 47(3) & 50 ---Execution of dec ree against legal representatives of deceased
judgment debtor ---Duty of court ---Scope ---Term "representative" as used in S.47(3), C.P.C.
would include legal representative as defined in S.2(11) thereof as well as any person being
representative -in-interest of a party to suit ---Court would firstly determine that who would be
legal representative of deceased judgment debtor and then would proceed against such
representative ---Decree could be executed to the extent of property of deceased judgment
debtor havi ng come into hands of a legal representative ---Principles.
Rauf Hashmi for Petitioner.
Miss Iram Mahmood and Amanullah Tareen, Additional Advocate General for
Respondents Nos. 2 and 3.
Date of hearing: 8th May, 2012.
JUDGMENT
MRS. SYEDA TAH IRA SAFDAR, J. ---The petitioner Irfan Bashir feeling
aggrieved of the order dated 30th April, 2010 of District Judge, Quetta, whereby his
application under section 12(2) Civil Procedure Code (C.P.C.) was dismissed, filed the
instant petition contending the rein that the trial court arrived to an incorrect conclusion,
thereby held that the property of the deceased judgment debtor namely Shaukat Bashir was
transferred in favour of his legal heirs, including him (petitioner). It was contention of the
petitioner that there was no concept of surety in an execution proceedings, but the court
below while treating him as surety, and erroneously proceeded with the matter, thereby
committed illegality. Furthermore, the execution of decree was sought by the decree
holde r/respondent No.1 against a dead person, that too, even without bringing his legal heirs
on record, and in absence thereof the decree was not executable. It was further contended that
the brothers of the deceased judgment debtors were pressurized, and he ( petitioner) being one
of them, and an employee of a Government Department, was blackmailed, and in compelling
circumstances he (petitioner) deposited an amount of Rs.150,000 (Rupees one lac and fifty
thousand only). It was further contention of the petitio ner that according to Christian Law he
(petitioner) was not liable to pay the debt amount of his deceased brother not being his legal
heir, as such the decree cannot be executed against him. The petitioner contended that
through misrepresentation, and frau d respondent No.1 obtained the decree behind the back of
a deceased person, and also filed application for execution of decree against a dead person.
But, these aspects of the case were remained unattended. He prayed for setting aside of the
order dated 30 th April 2010, with further prayer of acceptance of the application filed under
section 12(2), C.P.C.
2. The learned counsel for the parties were heard at length. The learned counsel for the
petitioner strongly criticized the order of the court below, wh ile contending that initially
through judgment dated 26th December, 2005 the suit was partly decreed only to the extent
of Shaukat Bashir, but the appellate court on appeal preferred by respondent No.1 altered the
judgment, and thereby the respondent No.4 Sohan Masih was also stood liable to pay the
decretal amount. The learned counsel contended that the execution proceedings were held on
the application filed by respondent No.1, thereby the petitioner was compelled to pay the
decretal amount in sheer viola tion of law. Further, the application filed by the petitioner
under section 12(2), C.P.C. was not properly considered, and the request made was declined.
Further, the court below failed to consider that the petitioner was neither party to the suit, nor
any notice was served on him. Further, in case of death of the judgment debtor his legal heirs
were required to be made party to the proceedings, but it was not done. In absence thereof no
proceedings pertaining to execution of decree can be held, nor it can be satisfied. Further, the
requirements of Order XXI, Rule 16, C.P.C. were not fulfilled, therefore, the all proceedings
were of no legal effect. The learned counsel further contended that the petitioner was not
legal heir of deceased Shaukat Bashir under the Christian Law, therefore, not liable to pay the
decretal amount. Further, the execution application was filed against a dead person, and
without even issuing process for the second judgment debtor, therefore, of no legal effect. It
was contended that t he court below was required to frame issues, and call for evidence for
determination of the matter with context to the application filed under section 12 subsection
(2), C.P.C., but it was not done, which resulted in an erroneous decision, therefore, liabl e to
be set aside.
3. In reply thereof the learned counsel for respondent No.1 contended that the petitioner
being not covered by the term aggrieved person, therefore, not entitled to file an application
under section 12(2), C.P.C. The learned counsel f urther contended that the petitioner himself
undertook to pay the decretal amount, thereby submitted a surety to the effect before the
court, therefore, he was liable to pay the decretal amount, and the proceedings were rightly
held against him. It was fur ther contended that an application for depositing of decretal
amount through installments was also filed by him (petitioner), therefore, in view of section
145, C.P.C. he was liable to pay the decretal amount. The learned Additional Advocate
General repres enting respondents Nos.2 and 3 only contended that as no decree existed
against the Government, therefore, they were unnecessarily made party to these proceedings.
4. The papers annexed with the instant petition were not found sufficient to decide the
real controversy, therefore, the record pertaining to execution proceedings, and the
application under section 12(2), C.P.C. were called for perusal. The record revealed that
initially the suit was filed for recovery of an amount of Rs.3,49,772 (Rupees thre e lacs, forty
nine thousand, seven hundred and seventy two only) along with interest by the present
respondent No.1 Singer Pakistan Limited against the Government of Balochistan, through
Secretary Population Department, Shaukat Bashir, and Sohan Masih. The suit was tried, and
decided through judgment dated 26th December, 2005, whereby the trial court only decreed
the suit to the extent of defendant No.3 Shaukat Bashir, found him liable to pay the decretal
amount. The appeal preferred by the plaintiff/decree holder, was decided vide judgment dated
29th November, 2006 by Additional District Judge -III, Quetta, whereby the decree was
upheld, but with alteration that respondent No.4 Sohan Masih was also decided to be liable
for payment of the outstanding amount, thereby ordered that both the judgment debtors were
severally and jointly liable to pay the decretal amount.
5. The decree holder/present respondent No.1 Singer Pakistan Limited filed an
application bearing No.13 of 2009 on 29th July, 2009 for execution of the decree, which was
entertained. The perusal of the application reveals that in its title only name of Shaukat
Bashir, and others appeared, but the contents of the application failed to disclose the fact that
the judgment debtor Shaukat Bashir had si nce been died. Rather, it was written therein that
according to the Church Certificate Mrs. Shaukat Bashir is the only legal heir/successor of
the deceased. The details of the property asserted to be owned by Shaukat Bashir were also
mentioned in the appli cation. While the decree holder prayed for execution of the decree in
terms: --
"It is, therefore, humbly prayed that execution of decree may please be made by
issuance of warrants of arrest and detention in prison of judgment debtors as well as
attachme nt, sale and auction of properties of judgment debtors, in the interest of justice."
6. The perusal of the case file pertaining to the execution application further reveals that
during course the decree holder moved another application with contention th at Mrs. Shaukat
Bashir had been made party as successor in interest of the deceased judgment debtor. But, the
name of the said lady no where reflected from the record. Neither, she was ever associated
with the proceedings, nor any notice was issued in her name. The order sheets maintained
from 29th June, 2009 till 10th August, 2009, on this application were written by the Senior
Civil Judge -II, Quetta in his own hand writing, which are not readable, therefore, hard to
understand what these orders contai ned.
7. However, the perusal of the case file pertaining to the execution application further
reveals that power of Mr. Munir Hashmi, Advocate was available, but it failed to disclose for
whom it was filed. But, by comparison it appeared that the power w as filed on behalf of the
present petitioner. Further, the second judgment debtor Sohan Masih, was represented by
Syed Ayaz Zahoor, Advocate, who filed his power on 28th October, 2009. Furthermore, an
application bearing date 28th October, 2009, with a req uest for payment of decretal amount in
fixed installments, available in the case file. But, as no name appeared in the application,
therefore, it was not certain who was the applicant. But, in reply thereof the decree holder
asserted that the application w as filed by the widow of deceased judgment debtor. But, the
order sheets maintained by Senior Civil Judge -II, Quetta failed to disclose the name of the
person, who moved the mentioned application. It is painfully observed that all the diary
sheets maintain ed by Senior Civil Judge -II, Quetta, the names of the counsel appearing for
decree holder, and judgment debtor were not disclosed. Even there was no distinction that
who was appearing for which of the parties. Rather only D/H describe the decree holder, an d
J/D for judgment debtor. The order sheets also unable to make distinction in the counsel
appearing for respondent No.4 the judgment debtor, and for the present petitioner Irfan
Bashir. This reflects the negligent conduct, and incompetence of the Judge, a serious note of
it is to be taken.
8. The record further reveals that the application filed for fixation of payment of the
decretal amount in installments was allowed on 9th October, 2009, in pursuance thereof an
amount of Rs.150,000 was paid in the cou rt by Irfan Bashir being described as ( )
judgment debtor in the relevant order sheet. Thereafter, no further amount was paid in the
court. But, the court below while proceeding with the execution process also issued bailable
warrants of the surety d escribed as Irfan Bashir, and further ordered for attachment of the
salary of the surety i.e. Irfan Bashir. In compliance thereof process for attachment of the
salary was issued. It was recorded in the order sheet dated 7th June, 2010, that last one
record ed in execution application, that one Mushtaq Ahmed, described as decree holder, filed
an undertaking that he has received total amount of the decree dated 26th December, 2005 on
behalf of the Company. On basis of this statement the execution application w as disposed of.
9. The petitioner feeling aggrieved of the situation meanwhile approached the court
below by way of filing an application under section 12(2), C.P.C., thereby raised objection
on legality of the decree on the grounds that no notice was e ver served on Shaukat Bashir,
and Sohan Masih, defendants Nos.3 and 4, in the suit. It was due to the reason that Shaukat
Bashir was permanent resident of United Kingdom (UK), and no summon was issued to him
on the address at UK. Therefore, without being p roperly served no decree can be passed
against him (deceased). Furthermore, Shaukat Bashir died in United Kingdom on 31st May,
2009 leaving behind no issue, therefore, the decree cannot be executed against a dead person.
The petitioner contended that the decree holder only pressurized the brothers of the deceased
judgment debtor for payment of the decretal amount, and started blackmailing one of them,
the petitioner, who was a Government employee, thereby managed to recover an amount of
Rs.150,000 from him (present petitioner). It was contended that as the judgment debtor
belonged to the Christian Community, therefore, he (petitioner) was not liable to pay the
amount of debt of the deceased being not his legal heir. There was a prayer for setting aside
of the judgment, and decree and dismissal of the suit. This application was replied by
respondent No.1, being the decree holder, while raising several legal objections on its
maintainability, the application was strongly contested on merits also.
10. The D istrict Judge, Quetta vide order dated 30th April, 2010 dismissed the application
while arrived to the conclusion that the applicant (present petitioner) was neither judgment
debtor, nor an aggrieved person, therefore, not entitled to seek a relief for set ting aside of the
judgment. It was also held that the application being time barred, and condonation of delay
was not prayed, therefore, not maintainable. The petitioner feeling aggrieved of the order
filed the instant petition for redressal of his grievan ce.
11. The facts as narrated hereinabove disclosed that the decree was obtained by
respondent No.1 against two of the defendants i.e. Shaukat Bashir, and Sohan, and they were
held liable to pay an amount of Rs.3,49,772 vide decree dated 26th December, 2 005 and 29th
November, 2006. It was noted that the appellate court while deciding the appeal mentioned
the decretal amount as Rs.4,39,772 (Rupees four lacs, thirty nine thousand, seven hundred
and seventy two only), which is an error, and liable to be rect ified. Certain other facts also
appeared from the material on the record. The judgment debtor Shaukat Bashir was alive
when the suit was decided by the trial court, but, before filing of the execution application he
died. But, this fact was not properly de scribed in the contents of the execution application,
rather a vague statement was given. Keeping in view the fact that the execution application
was filed in the year, 2009, a notice was required to be issued to the judgment debtors before
proceeding with the matter. Further, in present case one of the judgment debtors was dead,
and this fact was in knowledge of the decree holder, therefore, the details of legal heirs might
have been disclosed, and they were required to be served. But, the perusal of the e xecution
application reveals that neither the details of the legal heirs were provided, nor notices were
ever issued to them. Even the second judgment debtor Sohan Masih was not get served. But,
fortunately he become aware of the fact as a counsel made app earance on his behalf. But, due
to the aforementioned facts there was no representation on behalf of the legal heirs of
Shaukat Bashir during course of execution proceedings. Instead of the legal heirs the
petitioner remained present before the court below during the proceedings. It was further
observed that during course of execution of decree no order was made, nor any process was
issued for recovery of the amount against second judgment debtor Sohan Masih. Rather Irfan
Bashir (present petitioner) was foc used, and all the execution proceedings were held against
him. In these circumstances an amount of Rs.150,000 was recovered fThis 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,
let us know.