1994 S C M R 22

[Supreme Court of Pakistan]

Present: Abdul Shakurul Salam and Muhammad Rafiq Tarar, JJ

Mst. NASEEM AKHTAR and 4 others---Appellants

versus

SHALIMAR GENERAL INSURANCE, COMPANY LIMITED

and 2 others---Respondents

Civil Appeal No. 1251 of 1990, decided on 1st December, 1992.

(On appeal from the judgment/order dated 8-4-1990 of the Lahore High Court,
Lahore passed in Civil Revision No. 393 of 1989).

(a) Civil Procedure Code (V of 1908)---

----S. 47---Constitution of Pakistan (1973), Art. 185 (3)---Leave to appeal was

granted to consider the contention that questions which could have been raised in
proceedings in suit but were not raised could not be urged by judgment debtor
before Executing Court which was bound to execute the decree as it was.

(b) Motor Vehicles Act (IV of 1939)---

---S. 95 (2) (a)---Civil Procedure Code (V of 1908), S. 47---Limited liability-

Defendants failing to take such plea either in written statement or during
proceedings before passing of decree---Such decree attaining finality-- Defendant
taking plea of limited liability before Executing Court---Effect-- Defendants in
execution proceedings could not take up plea which they had not taken before
Trial Court during course of hearing of suit which was ultimately decreed and
decree became final---Even though, defendants' liability was limited they could
not now contend before Executing Court that their liability was not correctly
assessed or determined---Once a decree was passed it had to be executed in its
terms and it was not open to Executing Court to go behind it and re-determine the
liability of parties.

Syed Najamul Hassan Kazmi, Advocate instructed by Mahmood A. Qureshi,

Advocate-on-Record for Appellants.

Ras Tariq Choudhry, Advocate instructed by Ch. Ghulam Mujtaba,

Advocate-on-Record for Respondent No. 1.

Nemo for Respondent No.2.

Tariq Shamim, Advocate instructed by Gulzar Hassan, Advocate-on -Record for

Respondent No.3.

Date of hearing: 1st December, 1992.

JUDGMENT

ABDUL SHAKURUL SALAM, J.---This appeal by leave arises in the following

circumstances.

2. Muhammad Fazil, predecessor-in-interest of the appellants was killed by the

driver respondent No.2 of a Truck which was owned by respondent No.3. Heirs of
the deceased sued them as well as the Insurance Company respondent No.1,
claiming rupees two lac as compensation on 18-10-1982/ 29-3-1983. The
respondent contested the suit. The respondent No.1 filed on 22-11-1983 a separate
written statement pleading that the suit against it was time-barred and that it was
not liable to pay any amount under the expired policy. Its Manager Ali Ahmad
appeared as a D.W.1 on 14-2-1985. After the trial, the suit was decreed for Rs.
two lac by the learned Civil Judge 1st Class, Sargodha on 10-4-1986. Respondent
No.1 filed an appeal. It was dismissed for non-prosecution on 24-9-1988.
Application for restoration was filed. It, too, was dismissed for non-prosecution.

3. The heirs of the deceased, decree-holders the respondents filed an application

for execution of the decree before the trial Court. It was resisted by the respondent
No.1 on the ground that its liability was limited to Rs.16,000 as provided under
law. It was dismissed by the learned trial Court on 29-11-1989, Respondent No.1
filed an appeal which was dismissed on the ground that the executing Court could
not go behind the decree and it had to execute the decree as it is by the Additional
District Judge on 28-2-1989. The decree was executed. The respondent No.1 filed
a revision petition in the Lahore High Court and contended that its liability was
limited to a sum of rupees twenty thousand only vide section 95 (2) (a) of the
Motor Vehicles Act, 1939. The contention prevailed before a learned Judge and
revision petition was accordingly allowed vide order dated 8-4-1990. At the leave
stage it was urged on behalf of the decree-holders that "the questions which could
have been raised in the proceedings in the suit but were not raised could not be
urged by the judgment-debtor before the executing Court which is bound to
execute the Decree as it is". Leave was granted on 22-8-1990.

4. Learned counsel for the appellant diligently argued the case and referred to a
number of decisions. He referred to "Kudratulla Sarkar and others v. Upendra
Kumar Chawdhury" (AIR 1925 Calcutta 203) wherein it was observed that "this
is an appeal in execution proceedings by the heirs of the judgment-debtors. The
suit in which the decree was obtained was a suit against a Co-operative Loan
Society with unlimited liability and against the Secretary, the Chairman and two
members who signed the bond in respect of the money lent by the plaintiff in the
suit. The suit was, I think, clearly wrongly constituted as the Cooperative Society
alone should have been . sued. But the suit was decreed in part and, I think it is
clear from the decree and the plaint that the only possible construction that we can
put upon the decree is that it was a decree not only as against the Cooperative
Society but against the Chairman, who as already stated was one of the
defendants, personally, and it has heirs who are the appellants before us. Although
I think the suit was wrongly framed it is not possible for us in execution to set
aside the decree that was passed against the Chairman-defendant. For some reason
or other no appeal was preferred against the decree and that decree accordingly
stands, and I think it is impossible for us to construe the decree as we are asked to
construe it as merely a decree against the Cooperative Society and as regards the
other defendants as merely indicative of their ultimate liability under the
provisions of the Act. The first point, I think accordingly fails and we are bound
to hold that the decree-holder is entitled to execute the decree against the heirs of
the Chairman-defendant". He then referred to "Brij Mohan Das v.~ Mst. Piari"
(AIR 1937 Allahabad 357), where it was observed that "This is a revision under
section 115, Civil P.C. against an order passed by the Munsif of Shahgan in
execution proceedings. The appellant Brij Mohan Das obtained an ex parte decree
against the opposite party, Mt. Piari, for a sum of Rs.550 in a suit which so far as
the Civil Procedure is concerned, could be instituted in Benares and also in
Jaunpur, the plaintiff having the choice of form. The judgment-debtor resides in
Jaunpur District and the decree-holder obtained a certificate of transfer of the
decree for execution in Jaunpur. When he applied to the Court at Jaunpur for
execution of his decree, the judgment-debtor objected on the ground that the
Court which passed the decree sought to be executed had no jurisdiction, as he
(the judgment-debtor) was an agriculturist and the suit against him could be
instituted only in the District in which he resided. The Court executing the decree
gave effect to this objection, holding that the Benares Court had no jurisdiction to
pass the decree under execution. It is contended in revision that this view is
erroneous.

In my opinion the order of the lower Court cannot be supported. It is not disputed
that, but for the Agriculturists Relief Act, the Court which passed the decree had
jurisdiction to entertain the suit brought by the appellant and to pass a decree on
proof of his claim. The opposite-party did not appear and did not raise the
question as regards the forums selected by the appellant. She could have pleaded
that she was an agriculturist and, therefore, the suit should have been instituted in
the Jaunpur District only. She did not avail herself of the opportunity to raise such
a plea and allowed an ex parte decree to be passed againt her. It is a well-known
rule that the Court executing the decree cannot go behind it and allow its validity
to be impugned. The case in which the Court executing the decree can disregard
its apparent tenor are laid down in 1934 ALJ 409 and 1935 AWR 867. The
present case does not fall within any of the exceptions therein referred to. Broadly
speaking, it is not permissible for the Court executing the decree to embark on an
inquiry into facts which, if established would show that the Court passing it had
no jurisdiction to pass it. Where the jurisdiction of a Court to pass a decree
depends on the existence of certain facts, the Court executing the decree shall
refuse to take evidence in. proof of those facts for the purpose of determining the
jurisdiction of the Court passing the decree". Privy Council judgment in "Mahant
Har Kishan Das v. Satgur Prasad" (AIR 1938 Privy Council 98) was referred to. It
was laid down therein that in execution proceedings, the question as to whether
the view of the Court which passed the decree is right or wrong is no longer open.
He then referred to "Arbn. Jupiter General Inse. Co. Ltd. v. Corporation of
Calcutta" (AIR 1956 Calcutta 470) in which an award was made against an
Insurance Company. It was sought to be set aside on various grounds but it was
held that the Court does not decide the question of competence of the
reference. In fact it does not at all go into the question of statutory
disabili (underlying is our) and when the statute creates disability in this respect,
there is no difference between a person and a Corporation. It does not say that
there can be any estoppel against Statute or consent will create statutory capacity
where there is none, as indeed no Court can say it either in respect of a person or a
Corporation. In such cases what the Court does is not to pronounce on the
question whether the award or the arbitration proceedings was void but it prevents
the point being taken by a party to challenge the award if being aware of the
disability of the other party he did not take such objection on the ground at the
stage when the matter was referred or submitted to arbitration (1860) 30 IJ Bey.
10 Foll. "He also referred to SA. Latif v. Nadir Khan" (PLD 1968 Lahore 144),
wherein it was observed that "it is now well established that the validity of a
decree can be challenged in execution proceedings on the ground that the Court
which passed the decree was lacking in inherent jurisdiction in the sense that it
could not have seizen of the case because the subject-matter was wholly foreign
to its jurisdiction or that the defendant was dead at the time the suit had been
instituted or decree passed, or some such other ground which could have the
effect of rendering the Court entirely lacking in jurisdiction in respect of the
subject-matter of the suit or over the parties to it. In Ahmad and Co. v.
Muhammad Siddique it was held; "the only ground which has been recognised by
Court which can be urged in execution proceedings as regards the validity of the
decree is that the Court which passed the decree had no jurisdiction to do so. Such
absence of jurisdiction must be inherent. Except in such cases the execution Court
has no jurisdiction to go behind the decree". He then referred to "Kazi Abdul
Kader v. The East Pakistan Provincial Cooperative Bank Ltd." (1969 SCMR 275).
It was laid down that "an executing court cannot go behind an ward and determine
its validity or invalidity. The executing Court is required only to execute the
award as it is. This view was taken by both the executing Court and the High
Court and they were correct in taking this view" Reference was made to "Abdul
Malek Miah v. Moslemuddin (Mokleshuddin) Sheikh" (PLD 1970 Dacca 743)
wherein it was laid down that "it is well-settled that an executing Court cannot go
behind the decree. It is true that under certain circumstances where the decree is
without jurisdiction or is a nullity then the executing Court is entitled to take
notice of such circumstances. Illegality in the order on other grounds, however,
cannot give such scope to the executing Court. Want of jurisdiction is not the
same thing as illegal exercise of jurisdiction. It is, therefore, well established that
an executing Court cannot refuse to execute the decree because it is against law or
contravenes any provision of any statute. Patent want of jurisdiction is not to be
confused with the illegal exercise of such jurisdiction". He there quote "Yousuf
Aziz v. Mst. Aqeela Begum and 3 others" (PLD 1978 Karachi 205) wherein was
referred "Jupiter Insurance Company v. Calcutta Corpn", in which the facts were
that the applicant participated in arbitration proceedings without protest and fully
availed of the entire proceedings. But the award passed by the arbitrator went
against him. The applicant challenged the arbitration proceedings as without
jurisdiction on the ground that the agreement for arbitration was void as the
Corporation had no power under the Calcutta Municipal Act to refer any matter to
arbitration. In this connection refusing to entertain the objection P.B. Mukharji, J.
made the following observations:

"It will be seen from this case that the ....what the Court does. It does not decide
the queAtion of competence of the reference. In fact it does not at all go into the
question of statutory disability and when the statute creates disability in this
respect there is no difference between a person and a Corporation. It does not say
that there can be any estoppel against statute or consent will create statutory
capacity where there is none, as indeed no Court can say it either in respect of the
person or a Corporation. In the words of the Lord Chancellor which I have just
quoted the Court says "the claimant cannot now be heard to make the objection
even if the objection might have prevailed if taken in due time". In other words
the measure of the Court's attitude is that it disallows the party to urge his point at
all, so that it has no more any occasion to decide it. In such cases what the Court
does is not to pronounce on question whether the award or the arbitration
proceedings was void but it prevents the point being taken by a party to challenge
the award or being aware of the disability of the other party he did not take such
objection on that ground at the stage when the matter was referred or submitted to
arbitration."

He then referred to "Abdul Khaliq v. Haji and another" (PLD 1983 Lahore 445)
and read out para.6 which is as follows:--

"Even if the view taken is that while deciding Issue No3, the learned trial Court
had held that the respondents were not liable to pay the amount in dispute it
would be of little avail to them. The suit was, undoubtedly, decreed against all the
defendants, including the respondents who were arrayed as defendants Nos.2 and
3 in the suit. The decree sheet was also prepared accordingly. The appellant too
had claimed the amount in dispute from al: of them. According to the judgment
and decree of the learned Civil Judge; therefore, the respondents were also liable
to pay the decretal sum. If the respondents were not satisfied with the decree
passed against them they could assail it by means of an appeal. One of them,
namely, Mst. Sharifan together with Mst. Rehmat Khatoon, who was one of the
defendants in the suit, had actually filed a joint appeal which was subsequently
withdrawn by them and was, therefore, dismissed. Thus, the decree had attained
finality and it had got to be executed even if it was erroneously passed against the
respondents. The executing Court cannot rectify any mistake in the decree
because it would tantamount to going behind the decree. And as ruled in the case
of Messrs Haji Ahmad and Co. cited by learned counsel for the appellant, the
executing Court cannot go behind the decree. In the case Ghanaya Lal and others,
which was also relied upon by learned counsel for the appellant, it was observed
by a Division Bench of the Lahore High Court that "the rule of law is firmly
established that where the decree is free from ambiguity, the Court of execution is
bound to execute it whether it is right or wrong". In the present case the decree
granted by the learned trial Court was unimbiguously against all the respondents,
and, therefore, it, could be executed against all of them.
He lastly referred to "Mst. Shirn Majid v. Subarkatagin Majid and another: (1984
CLC 1531) to contend that executing court cannot go behind the decree.

4. Learned counsel for the respondent No.l, on the other hand relied on
"Muhammad Latif Khan v. Mst. Nayab Begum" (PLD 1968 Karachi 758) to
contend that an executing Court is competent to go behind the decree. The facts in
this case were that the Chairman of the Conciliation Court instead of certifying
failure of conciliation proceedings for non-nomination of representative of a party
as required by clause (b) of subsection (4) of section 5 of the Ordinance, granted a
decree. When it was sought to be executed it was declined on the ground that "the
Chairman had on the failure of the appellant to nominate his representatives,
merely to certify the failure of the conciliation under subsection (4) (b) of section
5 of the Ordinance and the decree in the sum of Rs.10, 000 awarded by him
against the appellant is a nullity as there was no Court properly constituted under
section 5 (1) of the Ordinance and the decree also offends against the statutory
requirement of section 5 (4) (b) ibid. Since the defect is patent on the face of the
order passed by the Chairman the Executing Court below was competent to take
notice of it. This Single Bench judgment is distinguishable on facts in so far as
that the order, sought to be executed as a decree on `the face' of it showed that it
was passed by an authority not properly constituted. It does not lay down that
decree passed by a competent Court can be gone behind to see whether it was
rightly passed or not, or whether it was justified on facts or pleas properly
adjudicated upon or not. Learned counsel referred to "Port Muhammad Bin Qasim
Authority v. Messrs National Insurance Corporation and others" (1989 SCMR
100) to contend that the liability of Insurance Company is limited to Rs.20,000
(twenty thousand). It may be so but it had to be pleaded before the decree was
passed. It was not so pleaded when the respondent No.1 filed the written
statement. When the decree was passed, the respondent No.1 filed an appeal
taking up the plea but allowed the appeal to be dismissed for non-prosecution. So
also the restoration application. The decree became final. The respondent No.1
itself is responsible for having lost its defence. The decree has to be executed as it
is. It is not permissible to go behind it and say that it should have been for so
much amount and no more. He also referred to "B.V. Patankar and others v. C.G.
Sastry" (AIR 1961 Supreme Court 272) and submitted that here the executing
Court ignored the provisions of the Rent Controller Order eviction of tenants and
passed an order of delivery of possession in execution of a decree, the order was
set aside and an order of redelivery to the tenant was passed on an application
under section 47 read with section 151, C.P.C. It may be noted that is this case the
Court which passed the decree was prohibited from passing the decree. Since it
lacked the jurisdiction the decree it passed was without jurisdiction and void,
therefore, its execution was equally without basis in law and was set aside. The
case is not a precedent for the proposition that a decree passed by a competent
court can be ignored or not executed by a Court competent to execute it when
there is no bars of jurisdiction in passing the decree or executing it. He also
referred to "Islamic Republic of Pakistan v. Muhammad Saeed" (PLD 1961 SC
192) and submitted that question relating to the executability of an order or decree
can be raised even in execution proceedings and it is open to the party against
whom it is sought to be executed to show that it is null and void or had been made
without jurisdiction or that it is incapable of execution. Relevant facts in the
precedent case were that an order passed in Writ jurisdiction having not been
complied with, proceedings in contempt were taken and it was urged that the
order initially passed by the High Court without jurisdiction and, therefore,
non-compliance did not constitute contempt. In the case in hand, there is no
question of the decree having been passed without jurisdiction. The Court which
passed the decree undeniably had the jurisdiction. Whether its decree was well
based on facts or law did not warrant any interference in the execution
proceedings.
5. After hearing the learned counsel for the parties at length and perusing the
record and the precedents we are of the view that no doubt that the liability of the
appellants was limited under the relevant statute. In the suit filed by the
appellants, the respondent No.1 filed the written statement. It did not take the plea
of limited liability. It produced its Manager as D.W.1, However, decree was
passed in favour of the appellants and against the respondents. The respondent
No.1 fled an appeal but did not prosecute it and it was dismissed for
non-prosecution. The respondent No.1 then filed an application for restoration but
did not prosecute. This too, was dismissed. Thus, the decree became final. In the
execution proceedings, it was not open to the respondent No.1 to take up the plea
which he had not taken before the learned trial Court during the course of the
hearing of the suit which was ultimately decreed and the decree allowed to
become final. In these circumstances, the respondent No.1 itself is responsible for
the decree against it, even though its liability was limited. It is not open to the
respondent No.1 judgment-debtor now to contend that its liability has not been
correctly assessed or determined. If it were permissible, there will-be no end or
finality to the judgment and decree which had become final. Precedents noted and
analysed above make quite clear that once a decree is passed it has to be executed
in its terms and it is not open to the executing Court to go behind it and
re-determine the liability of the parties. In this view of the matter, there is no
option but to allow this appeal and hold that the learned Judge in the High Court
fell in error in giving effect to the plea of the respondent No.1 which had not been
raised before the learned trial Court which granted the decree to the appellants. It
may also be noted that the decree has already been executed, There is no good
ground in the circumstances to put the clock back. Therefore, the impugned order
is set aside. However, in the circumstances the parties are left to bear their own
costs.

AA./N-350/S Appeal accepted.