2017 Y L R 589
[Balochistan]
Before Muhammad Noor Meskanzai, C.J.
NAVEED AHMED ---Petitioner
Versus
Syed ISRAR HAIDER RIZVI and 2 others ---Respondents
Civil Revision No.95 of 2014, decided on 26th August, 2016.
Civil Procedure Code (V of 1908) ---
----S. 47 & O. VII, R. 2 ---Money suit ---Execution petition ---Requirements ---Objection petition --
-Similarity of names ---Effect ---Contention of petitioner was that he was neither party in the suit
nor had got any involvement in the subject matter ---Objection petition was dismissed by the
Executing Court ---Validity ---Petitioner had no concern with the entire transaction right from the
payment of amount uptill establishment of the company ---Issue should have been framed with
regard to identity of the petitioner as a judgment -debtor ---Executing Court without appreciating
the material available on record had discarded the request of framing the issue to identify the
judgment debtor unjustifiably ---Decree could be executed against a person who was not a
judgment -debtor provided he was a surety, a purchaser pendente lite, a heir of deceased
judgment debtor or in possession of subject property of decree ---Sameness of name was not
sufficient to bring someone within the clutches of the decree ---Besides sameness of name one
must have same interest, character or capacity within the meaning of judgment debtor ---None of
the said requirements had been satisfied in the present case ---Petitioner could not be held liable
for satisfaction of decree in any capacity ---Petitioner wa s neither party in the suit nor was
partner, guarantor or surety ---Impugned order passed by the Executing Court was set aside ---
Execution proceedings should remain pending and be finalized in accordance with law ---
Revision was allowed in circumstances.
National Bank of Pakistan v. S.R. Rehmatullah and another PLD 1970 Lah. 330 rel.
Mehmood Sadiq Khokar and Nadeem Akhtar for Petitioner.
Ehsan Rafique Rana and Adnan Ejaz for Respondents.
Date of hearing: 1st July, 2016.
JUDGMENT
MUHAMMAD NOOR MESKANZAI, C.J.---This petition calls in question the validity
and propriety of order dated 26 -02-2014 passed by Civil Judge -I, Quetta whereby the learned
executing Court rejected the objection petition filed by the petitioner.
2. Learned counsel for the petitioner c ontended that initially a civil suit bearing No.
252/2007 was filed against respondents Nos.1 and 2 by the CEO of Naveed Telecom (Pvt.) Ltd.
and similarly another Suit No.253/2007 was filed by the respondent No.1 against respondent
No.2, both the suits wer e consolidated and finally decided vide order dated 20.09.2011. The civil
Suit No. 252/2007 was dismissed whereas Civil Suit No. 253/2007 was decreed to the extent of
Rs.1900,000/ -. The respondent No.2 feeling aggrieved of the judgment and decree dated
20.09.2011 filed R.F.A. No.176/2000 which was decided vide judgment dated 25.6.2012 and the
appeal filed by respondent No.2 was dismissed. The respondent No.1/deeree holder filed an
execution application and on the pretext of new address of Naeem Aftab, Chief Executive, the
address of the petitioner was mentioned. In the meanwhile, an application was moved before the
executing court for attachment of salary of petitioner on the ground that petitioner No.1 is the
judgment debtor and order to this effect was iss ued by the executing court. The order was
implemented and the petitioner came to know that a case is pending against him, so he appeared
before the executing court and filed an application under section 151, C.P.C. The main
contention in the application wa s that the petitioner was neither a party in the suit nor has got any
involvement in the subject matter, therefore, the attachment of salary of petitioner is illegal. The
attachment was withdrawn by the executing court vide order dated 4.10.2013. Thereafte r, the
petitioner filed an objection petition by submitting that petitioner is Naveed Ahmed son of Aftab
Ahmed and he has been dragged at this stage in this case due to personal grudge. It was further
maintained that the petitioner is a government servant since 1992 and has got nothing to do with
the Company nor any connection therewith and actually Naeem Aftab brother of petitioner is the
judgment debtor and not Naveed Ahmed. The decree holder should have procured the attendance
of the judgment debtor. To prove his identity he produced his testimonial, service Card and
CNIC (all the documents find mentioned the name of petitioner Naveed Ahmed). According to
learned counsel for the petitioner, the parties are known to each other as actually Chief Executive
of the Naveed Telecom (Pvt.) Ltd. (company) is Naeem Aftab who is brother of petitioner and
petitioner is ex -brother -in-law of the respondent No.1. However, unfortunately due to family
dispute the matrimonial relationship came to an end and the petitioner p ronounced 'Talaq'.
Learned counsel stated that in fact the petitioner has been dragged not because he is judgment
debtor or guarantor, surety or he ever remained party in the proceedings but because of the
'Talaq' pronounced by the petitioner and the respo ndent No.1 is bent upon to avenge that
revenge. He referred to various documents i.e. the plaint, statement of plaintiff recorded before
the Court, divorce deed etc.
The learned counsel for the respondent No.1 supported the impugned order and stated
that title of the plaint leaves no room for doubt that the petitioner is Naveed Aftab who was the
Chief Executive of Naveed Telecom (Pvt.) Ltd. Though one Naeem Aftab used to appear but in
fact CEO is the petitioner who subsequently has changed his name as Nave ed Ahmed. He stated
that objection petition was filed just to nullify the impact of decree passed by the trial Court and
upheld by this Court and now decree so passed should be implemented and no exception could
be taken to the impugned order passed by the executing Court.
3. I have heard learned counsel for the parties and gone through the record carefully with
their valuable assistance. A meaningful perusal of the record reveals that neither the contents of
the judgment are disputed nor terms of the decre e are controversial and the dispute amongst the
parties is the identity of the judgment debtor. Theme of the controversy derived from the
arguments is, as to whether the petitioner is the judgment debtor, surety, guarantor or otherwise
responsible for sati sfaction of decree. To address the issue one must remain alive of certain
undisputed facts already available on record. Admittedly, two Civil Suits hearing Nos. 252 and
253/2007 were filed and title of the suits for the present controversy are quite releva nt which are
reproduced herein below: --
Title of Civil Suit No. 252 of 2007
Naveed Telecom (Pvt.) Limited, Khan Plaza 2nd Floor Opposite Sandeman High School
Fatima Jinnah Road Quetta through Its Chief Executive Officer Naveed Aftab. Plaintiff
Versus.
1). Syed Israr Haider Rizvi Franchise Owner Lahore of Naveed Telecom (Pvt.) Limited
Quetta R/O House No.161 -H Block No.5 Satellite Town, Quetta.
2). General Manager (PSP) Pakistan Telecommunication Limited Headquarters
Islamabad. Defendants
Title of Civil S uit No. 253 of 2007
Syed Israr Haider Rizvi Franchise Owner Lahore of Naveed Telecom (Pvt.) Limited
Quetta R/O House No.161 -H Block No.5 Satellite Town, Quetta. Plaintiff
Versus.
1). Naveed Telecom (Pvt.) Limited, Khan Plaza 2nd Floor Opposite Sandeman High
School Fatima Jinnah Road Quetta through Its Chief Executive Officer Naveed Aftab.
2). Miss Mehvesh resident of Khan Plaza 2nd Floor opposite Sandeman High School
Fatima Jinnah Road Quetta C/O Naveed Telecom (Pvt.) Ltd. Defendants.
4. According to pe titioner in Civil Suit No.252/2007 Naveed Aftab is the Chief Executive
Officer and Company has been named by his brother Naeem Aftab. he has never received a
single penny from decree holder nor he has signed any document nor for that matter he is or ever
remained partner of the company. In Civil Suit No.252 of 2007 Naeem Aftab recorded his
statement as plaintiff. For the sake of convenience relevant portion whereof reads as under: --
Similarly, the respondent No.1 has recorded his statement, relevant portio n whereof reads
as under: --
5. The perusal of the above reproduced statements leaves no room for doubt that Chief
Executive Officer of the Naveed Telecom (Pvt.) Ltd. is Naeem Aftab and not the petitioner.
Similarly, the statement recorded by the respondent No.1 Syed Israr Haider Rizvi establishes the
fact that agreement was entered into between Naeem Aftab and respondent No.1 Syed Israr
Haider and the amount were paid to Naeem Aftab who is/was the CEO of the company and one
Mehwish. Further the plaint in Ci vil Suit No.252/2007 was found to have been signed by Naeem
Aftab. The affidavit in support of the application under Order XXXIX, Rules 1 and 2 r/w section
151, C.P.C. filed in Civil Suit No.252 of 2007 categorically finds mention the signatures and
name o f Naeem Aftab, Chief Executive Naveed Telecom Private Limited Quetta. Same is the
position with documents filed by the petitioner. The signatures available on the petition as well
as rest of the documents filed either before the executing Court or before t his Court clearly reveal
that Naeem Ahmed is not a signatory to the agreement nor for that matter he has filed any suit,
written statement nor even was heard as a party before trial court or appellate court. The identity
of the petitioner being the ex -brother-in-law of the respondent No.1 is undisputed by the
respondent No.1. Furthermore, the categoric statement of respondent No.1 before the trial Court
reveals that the petitioner has got no concern whatsoever with the entire transaction right from
the paym ent of amount up till establishment of the company. The petitioner made an innocent
request and a fair demand i.e. let an issue be framed regarding identity of the petitioner as a
judgment debtor but the executing Court without appreciating the material av ailable on record
discarded the request unjustifiably. True, a decree can be executed against a person who is not a
judgment debtor provided he is a surety or a purchaser pendente lite, a heir of deceased judgment
debtor and in possession of subject proper ty of decree. However, in this case the petitioner is
attempted to be booked merely on partial similarity of the name whereas legally even the
sameness of name is not sufficient to bring someone within the clutches of the decree. Besides,
sameness of the n ame one must have same interest, character or capacity within the meaning of
judgment debtor, whereas in this case none of the requirements stand satisfied, therefore, the
petitioner cannot be held liable for satisfaction of decree in any capacity. Relianc e is placed on
the judgment titled as 'National Bank of Pakistan v. S.R. Rehmatullah and another' reported in
PLD 1970 Lahore 330 (relevant at page -334), wherein it has been observed as under: --
"The sameness is not confined merely to the identity of the n ame or of the individual but
there must also be sameness of the interest, character, or capacity which the judgment -
debtor must occupy in common in all the decrees. The individual may be the same, but if
he has different interests; character or capacities, in different decrees under consideration,
then he cannot be called the same judgment -debtor in all the said decrees. A person who
is sued as a partner in a firm or against whom a decree has been passed as a partner of.
firm, is not the same judgment -debto r when another decree is passed against him in his
individual capacity. See T. G. Sundaralyer v. K. N. Balusami Iyer and another (AIR 1956
Mad. 192), Balmer Lawrie and Co. v. Jadu Nath Banerjee (AIR 1915 Cal. 658.), Pacific
Bank Ltd. v. Thakur Singh Kalsi (AIR 1949 Cal. 396), Girdhari Lal v. Muni Lal and
others (AIR 1963 Ph. 43), Mst. Inderbasi Kuer v. Satnarain Singh and others (AIR 1923
Pat. 521) and Sadhu Ram v. Firm Dhanpat Rai Telu Ram (AIR 1937 Lah. 937).
(b) The word 'judgment -debtor" is defined in s ection 2(10) of the Code so as to mean,
"any person against whom a decree has been passed or an order capable of execution has
been made". This will show that judgment -debtors may be of two kinds, namely, (i) those
against whom a decree has been passed and (ii) those against whom an order capable of
execution has been made. (For a distinction between a "decree" and an "order", reference
may be made to the definitions of these words as contained in section 2(2) and section
2(14) of the Code. In section 73 of the Code, it is only a former kind of judgment debtor
who has been referred to, namely, he against whom a decree has been passed. Now there
is an obvious difference between: --
(a) a person against whom a decree has been passed, namely, a judgment -debtor s tricto
sensu: and
(b) a person against whom a decree may be executable (e.g., see section 146 of Code and
Sm. Hemlata Dasi v. Bengal Coal Company Limited AIR 1935 Cal. 738 which says that
section 146 cannot enlarge the scope of section 73, as it is expres sly made subject to the
other provisions of the Code).
A person against whom a decree has been passed will always be a person against whom
execution can also proceed, but a person against whom execution may proceed need not
always be a judgment -debtor. As for example, a decree may be executed against a
purchaser pendente lite or a person who might have stood surety after a decree is passed
in order to obtain a stay order by the judgment -debtor. The mere fact, therefore, that in
certain categories a decree c an be executed against a person will not make him a
judgment -debtor if the decree was not passed against him. 'The natural corollary of this
is, that when a decree is passed against a person in his capacity as a partner of a firm,
then he is a judgment -debtor in that decree, in that and that respect alone. In other words,
it is the incidence of passing a decree, by which a person should become a judgment -
debtor and not the mere fact of the execumbility of the decree against him. This point
gets support from the word "passed" used both in the definition of the "judgment -debtor"
as well as in subsection (1) of section 73 of the Code."
In the light of above discussion and in the wake of facts narrated hereinabove I don't feel
any hesitation to hold that the pe titioner Naveed Ahmed was neither a party in the suits nor CEO
of the Naveed Telecom (Pvt.) Ltd. nor for that matter a partner guarantor or surety, therefore, he
is not responsible for satisfying the decree in any form and capacity. Hence, I am inclined to
accept this petition and set aside the impugned order dated 26.02.2014 passed by the Civil Judge -
I, Quetta. Resultantly, the objection petition filed by the petitioner sustains. The execution
proceedings shall remain pending against Naeem Aftab and shall be finalized in accordance with
law.
The parties to bear their own costs.
ZC/72/Bal. Revision petition allowed.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,
let us know.