Mehboob Alam Vs Additional District Judge etc

Stereo. H C J D A-38.

JUDGMENT SHEET

IN THE LAHORE HIGH COURT, LAHORE

JUDICIAL DEPARTMENT

Writ Petition No.29329 of 2020

Mehboob Alam Versus

Additional District Judge, Lahore & others

JUDGMENT

Date of hearing: 15.04.2025.

Petitioner by: Mr. Khawar Ikram Bhatti, Advocate. Respondents by: Mr. Nazir Ahmad Ch., Advocate. MUHAMMAD SAJID MEHMOOD SETHI, J.- Through instant petition, petitioner has assailed vires of orders dated 04.12.2019, 18.01.2020 & 18.06.2020, passed by learned Judge Family Court / Executing Court, Lahore, whereby schedule for auction of petitioner’s property was issued, Court auctioneer was appointed with direction to hold auction proceedings and submit his report in this regard.

2.Precisely, the facts necessary for adjudication of instant petition are that respondent No.3 alongwith minors instituted a suit for recovery of maintenance allowance, delivery expenses and dowry articles against respondent No.4. The suit was ultimately partly decreed ex-parte vide judgment & decree dated 27.04.2016, which was kept intact upto the level of this Court. An execution petition was filed in which respondent No.4 was arrested. During proceedings of the execution petition, respondent No.4 filed application for setting aside ex-parte judgment & decree dated 27.04.2016 with prayer to suspend the operation of said decree. Learned Executing Court, vide order dated 08.03.2017, suspended the operation of aforesaid decree subject to submission of local surety bond equal to the remaining decretal amount. In compliance of said order, petitioner stood surety for the judgment-debtor by

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submitting surety bond on 10.04.2017. Later on, upon non- satisfaction of the decree, learned Executing Court, vide orders dated 04.12.2019, 18.01.2020 & 18.06.2020, proceeded to issue schedule for auction of petitioner’s property. Consequently, Court auctioneer was appointed with direction to hold auction proceedings and submit his report in this regard. Hence, instant petition.

3.Learned counsel for petitioner contends that in compliance of order dated 08.03.2017, passed by learned Executing Court, petitioner submitted surety bond, whereby his liability was only to the extent of Rs.160,000/-, however, the statement recorded on his behalf shows that he shall deposit entire decretal amount, which is not in conformity with the surety bond submitted on the same date i.e. 10.04.2017. He contends that due to petitioner’s efforts, judgment-debtor / respondent No.4 was arrested and remained behind the bars in Civil Prison, therefore, petitioner is not obliged to satisfy the entire decree and the attachment of his property is unwarranted. Learned counsel argues that the impugned orders are not tenable and learned Executing Court has proceeded illegally and unlawfully. In support, he has relied upon Mt. Aishan Bi – Surety v. Mahabir Prashad and another (A.I.R. 1929 Lahore 262), Siraj-ud-Din v. Guranditta Mal and others [A.I.R. 1934 Lahore 962(1)], Satya Narain Prasad and others v. Mahabir Prasad Marwari (A.I.R. 1937 Patna 476) and S.

Sankaranarayana Iyer v. Paramasivam Pillai and others (A.I.R. 1942 Madras 101).

4.Contrarily, learned counsel for respondents defends the impugned orders by contending that the petitioner / surety would not be absolved of his liability even if judgment-debtor was sent behind the bars as both surety and judgment-debtor are collectively and severally liable to make payment to the decree-holder. In support, he has referred to Muhammad Amin v. Judge, Family Court, Sahiwal and 3 others (2015 YLR 316).

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5.Arguments heard. Available record perused.

6.It is an admitted position on the record that suit instituted by respondent No.3 alongwith minors for the recovery of maintenance allowance, delivery expenses and dowry articles against respondent No.4 was ex-parte decreed by way of judgment & decree dated 27.04.2016. Subsequently, respondent No.4 / judgment-debtor filed application for setting aside aforesaid judgment & decree. In execution proceedings, judgment debtor (respondent No.4) was arrested by the order of learned Executing Court. During the course of proceedings, respondent No.4 filed application for setting aside ex parte judgment & decree and prayed for suspension of the operation of aforesaid decree. On 08.03.2017, respondent No.4 was released after payment of cash Rs.50,000/- and his prayer to the extent of suspension of the decree was allowed subject to submission of local surety bond equal to remaining decretal amount with further direction to pay maintenance allowance of minors @ Rs.3000/-per month each regularly. For ease of reference, relevant excerpt of said order is reproduced hereunder:- “4. So, relying upon the contents of application duly supported by affidavit and arguments advanced by learned counsel for petitioner, the prayer for suspension of operation of ex-parte judgment and decree is accepted and operation of ex-parte judgment and decree dated 27.04.2016 is hereby suspended subject to submission of local surety bond equal to remaining decretal amount. .....” [emphasis supplied]

In compliance of the above order, petitioner submitted surety bond on 10.04.2017, however, the contents of the surety bond show that it is to the extent of Rs.160,000/-. But the statement of the surety, recorded by the Court, on the backside of the surety bond, clearly shows that petitioner stood surety for the remaining decretal amount at that time. The statement recorded by the petitioner on the backside of surety bond on the same date appears to be in line

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with the order dated 08.03.2017, describes that in case of non- payment of decretal amount by the judgment-debtor, petitioner would have no objection upon satisfaction of the decree by way of attachment of his property. It would be advantageous to reproduce said statement, which is as follows:- دیجم پارک3 یلگ بمن101ایبن ازاں اضنم وبحمب اعمل ودل ادماد یلع اسنک اکمن بمن10-04-17 شادہرہپ ٔاونالوہر۔

ت ایبنایکہکدموینوکںیمبڑیایھچرطحےس اجاتنوہں۔ںیمدمویندیساایتشقنیسحیک امضنداتیوہںہک ہیہیقب ینتجیھبزرڈرگیےہوہادارکدےاگارگدموینتیلولعلےساکمےلوتریمیاجدیئادذموکرہداتسوبڑ ت قڑق رکےکزر ڈرگی ادا رک دےیئ اجےنرپ19-11-13ومرہخ2350 وامیلبمن1 ب بمن9107بمن وکیئارتعاضہنوہاگ۔

ت نسرکدرسمیلستایک۔

It is manifestly clear from the above that while submitting surety bond, petitioner has undertaken to satisfy the remaining decretal amount, whereas the surety bond submitted on his behalf contains altogether different version. There is clear ambiguity found in the surety bond, whereas the undertaking given by petitioner on the backside thereof is not ambiguous and its plain reading leads to no other meaning but that the petitioner / surety held himself responsible for satisfaction of the entire remaining amount and offered his property, mentioned in the statement, to be attached in case of default by the judgment-debtor. There is no cavil with the proposition that stipulation(s) and / or words in surety bond must be read in their ordinary meaning and when words contained therein are unambiguous, there is no reason to apply any other to its construction, however, in this case, the contents of surety bond are vague and unclear as compared to the undertaking given by petitioner. Reliance is placed upon Muhammad Akram v. Additional District Judge and 5 others (2023 CLC 702).

7.Record is indicative of the fact that statement of petitioner recorded on the backside of surety bond, which was read over and admitted correct by the petitioner, bears signatures, thumb

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impression, CNIC number and cell number of petitioner himself as surety along with the signatures of learned Civil Judge, Lahore.

8.After having gone through the available material, no cavil left that pursuant to the order dated 08.03.2017, passed by learned Executing Court, the petitioner himself made him liable to pay the decretal amount in place of the judgment-debtor on his failure to satisfy the decree. The petitioner now cannot wriggle out of his own undertaking. Law is well settled about proposition that decree can also be executed against a surety. Reliance in this respect if needed can be placed on Messrs State Engineering Corporation Ltd. v. National Development Finance Corporation and others (2006 SCMR 619), Muhammad Amin v. Judge, Family Court, Sahiwal and 3 others (2015 YLR 316), Haji Muhammad Ashraf v. Maqbool Hussain and 3 others (PLJ 2015 Lahore 475), Shafiullah v. Saifullah and 7 others (PLD 2017 Peshawar 203) and Ghulam Shabbir v. Mst. Tanzeela Nusrat and others (2023

CLC 2169).

9.As regards petitioner’s stance that after arrest of judgment-debtor / respondent No.4, he is absolved from making payment of decretal amount, it suffices to say that arrest of judgment-debtor does not absolve the surety from making payment of decretal amount as his liability is joint and several with the judgment-debtor. Surety can be proceeded against for enforcement of his liability as provided under Section 45 CPC. Reliance is placed upon Muhammad Muzamal Riaz v. Additional District Judge, Shorkot, District Jhang and 6 others (2020 CLC 970). It is clarified that petitioner shall be liable to pay the remaining decretal amount as was existing at the time of passing order dated 08.03.2017, reproduced supra. Reliance can safely be placed upon Masood-ul-Hassan v. Additional District Judge and others (2024 CLC 1744).

10.No jurisdictional defect or material irregularity is pointed out by the petitioner in the orders under challenge, therefore, I am

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of the considered view that the instant petition is ill-founded and mischievous. Resultantly, the same is dismissed. No order as to costs.

(Muhammad Sajid Mehmood Sethi) Judge

APPROVED FOR REPORTING

Judge

*A.H.S.*