2013 M L D 974
[Balochistan]
Before Mrs. Syeda Tahira Safdar, J
MUHAMMAD NAEEM ---Appellant
Versus
ORANGZAIB KHAN ---Respondent
Civil Miscellaneous Appeal No.23 of 2010, decided on 9th April, 2013.
(a) Civil Procedure Code (V of 1908) ---
----S.42-Powers of court in executing transferred decree ---Transferee court could not go beyond
the decree, nor could reverse or review the judgment or the decree ---Transferee court could not
go into the question of jurisdiction of the court which passed t he decree or the legality or
propriety of the order of transferor court ---Only question which could be entertained, would be
its own jurisdiction in execution of a decree transferred to it.
(b) Civil Procedure Code (V of 1908) ---
----S.47---Scope of S .47, C.P.C. ---Questions to be determined by the court executing decree ---
Object ---Object behind S.47, C.P.C. was not only to afford speedy relief to the parties in the
matters arising out of execution of a decree, but also to curtail the multiplicity of li tigation, and
the hardship to be faced by the parties.
Muhammad Usman Yousafzai for Appellant.
Ayaz Sawati for Respondent.
Date of hearing: 11th December, 2012.
JUDGMENT
MRS. SYEDA TAHIRA SAFDAR, J. ---The order dated 6th October, 2010 of Civil
Judge -II, Quetta, whereby the objections filed by the appellant on the execution application were
refused was questioned through the instant appeal. It was contention of the appellant that the
executing court was bound to entertain the objections as required by law, further section 47 Civil
Procedure Code (C.P.C.) was very much clear to the effect. Furthermore, no separate suit lies in
the circumstances, but the court below overlooked the law, thereby made an error. The appellant
further contended tha t the Civil Judge -IX, Abbot Abad without having jurisdiction to entertain a
suit for specific performance of an agreement, pertaining to an immovable property situated at
Quetta, decreed the suit, which was of no legal effect. Rather, the ex parte decree w as obtained
through fraud and misrepresentation, but the court below ignored the facts, and the documents on
record, thereby arrived to a decision inconsistent with the facts and material, which was not
sustainable. It was prayed that the impugned order be set aside, and the execution application
filed by the respondent be dismissed being not maintainable.
2. This case remained pending since 2010, but the matter lingered on due to the conduct of
the counsel for the parties. The counsel for the appellant r emained absent and failed to argue the
matter, resultantly the other side was heard. The learned counsel for the respondent stated that
the original decree was passed by Civil Judge -IX, Abbot Abad on 25th January, 2010, and an
application for execution of the decree was also filed before the same court, which was
transferred to Quetta and remained pending before the court of Civil Judge -II, Quetta. The
learned counsel further stated that the appellant choose the wrong forum, he was required to
approach the court whereby the execution application in fact was filed. He prayed for dismissal
of the appeal.
3. The papers annexed with the appeal reveals that the respondent filed a suit before the
court of Civil Judge -IX, Abbot Abad, which was decreed by an ex pa rte order dated 25th
January, 2010 in the terms as prayed. The respondent being the decree holder approached for
execution of the decree to the concerned court, with a request for transfer of execution
application to Quetta, which was acceded to. The matte r remained pending before the court of
Civil Judge -II, Quetta for execution of the decree. But, meanwhile the appellant being the
judgment debtor appeared with an objection petition under section 47, C.P.C., thereby
challenged the judgment with a prayer th at the execution, application filed by the decree holder
be dismissed. The trial court decided the objection petition vide order dated 6th October, 2010,
thereby arrived to the conclusion: --
"the decree has been passed against the judgment -debtor by lea rned Court of Civil Judge -
IX, Abbottabad, after necessary proceedings as per law, in view of which, I am of the opinion
that, this court cannot set aside the decree of the decreetal court, nor can dismiss the instant
execution application, filed according to law, therefore, the applications filed by the judgment -
debtor are dismissed accordingly in the interest of justice."
4. The contents of the objection petition disclosed that there was no objection to the extent
of execution of the decree; rather the a ppellant questioned the judgment of the trial court. The
merits of the case were contested with a plea that the decree was obtained through fraud and
misrepresentation, with a further plea that the court in Abbot Abad lacks territorial jurisdiction in
the matter, as the suit property situated at Quetta, and the transaction was also held at Quetta,
therefore, the judgment and the decree were of no legal effect. The court below entertained the
petition, but without going into merits of the case arrived to the decision, and refused to accede
to the request of the appellant, without making any reference to the law dealing with the matter.
Therefore, it needs consideration.
5. In the instant case the suit was filed by the respondent before the court at Abbot Ab ad,
which was decreed in absence of the present appellant being proceeded ex parte. The respondent
thereafter approached the court at Abbot Abad for execution of the deeree, and on his request the
execution application was transferred to the court at Quett a, in exercise of powers under section
40, C.P.C. The court below entertained the application for execution of the decree, and exercised
powers as provided under section 42, C.P.C. In exercise thereof such court shall have the same
powers under this Code a vailable to a court to execute a decree, as it had passed the decree itself.
But, this power only pertains to execution proceedings, and method of execution and matters
related thereto. The transferee court cannot go beyond the decree, nor can reverse or r eview the
judgment or the decree. Further, the transferee court cannot go into the question of jurisdiction of
the court which passed the decree or the legality or propriety, of the order of transferor court.
The only question which can be entertained in t he context would be its own jurisdiction in
execution of a decree transferred to it.
6. In case in hand the appellant was aggrieved of dismissal of his objection petition filed
under section 47, C.P.C. It was his contention that his petition was maintai nable, and require a
decision on merits. It would be beneficial to reproduced section 47, C.P.C., before proceeding
ahead, which reads as under: --
"Section 47. Questions to be determined by the Court executing decree. ---(1) All
questions arising between the parties to the suit in which the decree was passed, or their
representatives, and relating to the execution, discharge or satisfaction of the decree, shall be
determined by the Court executing the decree and not by a separate suit.
(2) The Court may , subject to any objection as to limitation or jurisdiction, treat a proceeding
under the section as a suit or a suit as a proceeding and may, if necessary, order payment of any
additional court fees.
(3) Where a question arises as to whether any person is or is not the representative of a party,
such question shall, for the purpose of this section, be determined by the Court."
7. This section empowered an executing court to determine all the questions arising between
the parties to the suit during cour se of execution. It further specifies the matters which shall be
dealt by such court. Therefore, the questions relating to the execution, discharge or satisfaction
of the decree shall be entertained by such court, and no separate suit shall lie for the mat ters
relating thereto. Though sub -section (2) of the Section refers to the objections pertaining to
limitation and jurisdiction, but it is not to be read in isolation, rather it is to be read co -jointly
with subsection (1) of the section. Therefore, the qu estion relating to limitation and jurisdiction
also pertains to the execution of the decree, and not to the suit. The object behind this provision
is not only to afford speedy relief to the parties in the matters arising out of execution of a
decree, but a lso to curtail the multiplicity of litigation, and the hardships to be faced by the
parties during the course.
8. In the instant case the appellant appeared before the court below with a plea that the
respondent played a fraud thereby succeeded to obtain a decree from a court having no
jurisdiction in the matter. But, he approached the court who was exercising powers for execution
of the decree transferred to it by the court which had passed the same under section 42, C.P.C.
Therefore, the court below was not empowered to grant the relief as prayed by the appellant.
Rather, the transferee executing court, in the given circumstances, can only make an order, and
thereby refused to carry on the execution process. But, have no power to set aside the judgment
or decree execution whereof transferred to it. Section 47, C.P.C. will be of no help, rather section
12 sub -section ( 2), C.P.C. would be a rescue in the circumstances, which reads as under: --
"Section 12. Bar to further suit. ---(1) Where a plaintiff is precluded by rules from
instituting a further suit in respect of any particular cause of action, he shall not be enti tled to
institute a suit in respect of such cause of action in any Court to which the Code applies.
(2) Where a person challenges the validity of a judgment, decree or order on the plea of
fraud, misrepresentation or want of jurisdiction, he shall seek h is remedy by making an
application to the Court which passed the final judgment, decree or order and not by a separate
suit."
9. This section describes the forum for the purpose, as it speaks about filing of an
application to the court which passed the f inal judgment. The appellant had chosen the wrong
forum. The executing court at Quetta rightly arrived to the conclusion that neither it was
empowered to set aside the decree, nor can dismiss the execution application, and for stay of the
execution applica tion the appellant might have approach the original court who has passed the
decree, thereby committed no illegality. The remedy available under subsection (2) of the section
12, C.P.C., by way of filing an application before the court which has passed the decree, as no
appeal preferred against the same, can be availed.
10. In view of above discussion the appellant has failed to make out a case in his favour.
Therefore, the appeal is hereby dismissed being without merits.
There shall be no orders as to costs.
AG/37/Q Appeal 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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