Director General (Headquarters) Civil Works Organization, Rawalpindi Vs Syed Wali Shah

TUDGMENT SHEET

PESHAWARHIGH COURT

ABBOTTABAD BENCH

(ludicial Department)

FAO No.0l-N2025

Director Generul (Headquarters) Civil l{orks Organizution, Rawalpindi -------- (Appellant)

V/S

Syed llali Shuh and others.

(Respondents)

Present: Mr. Masood Ahmed Khattak, Advocate for the appellant.

Ms. Syed Rabia Sultana, Advocate, for the respondents.

Dates of hearing: 24.02,2025

.ruDGMENT

AURANGZE-B. J.- rhrou gh this First Appeal Against the Order under section 104 read with section 151 ofthe Code ofCivil Procedure, 1908, the appellant has challenged the order of Additional District Judge- III, Abbottabad dated 07.01.2025 whereby the objection petition filed by judgment debtors under section 47 readwith section 151 CPC was dismissed.

Muhammad Tariq (S.8.) Hon'ble Mr. Justice Aurangzeb

2 Arguments of learned counsel for the parties were heard in considerable detail and the record perused with their able assistance.

3 The case involves the acquisition of properry belonging to the decree holders, including the late Farid Shah, by the judgment debtors/appellants through Award No. I 76 dated May 10, 2004, for defense purposes. Dissatisfied with the compensation, the decree holders sought enhancement under Sections l8 and 30 of the Land Acquisition Act, 1894, which was granted on March 30, 2013. Both parties appealed to the Peshawar High Court, Abbottabad Bench, which upheld the Referee Court's decision on October 22, 2014 and subsequently, the decree holders initiated an execution petition. The trial court issued notices to the judgment debtors/appellants and directed the concerned Patwari Halqa to submit a Goshwara, which was provided on October 29, 2024. The court then ordered the judgment debtors/appellants to pay the decretal amount as Muhammad Tariq (S.8.) Hon'ble Mr. Justice Aurangzeb

-J-

specified. Instead of complying, the judgment debtors/appellants fi led an objection petition.

4 The Goshwaras of the legal heirs (L.Rs) of the deceased Farid Shah, available on the case file, have been verified by Patwari Halqa LAC, who recorded his statement before the court while producing a copy of Naqsha Tajwezi and the acquaintance roll. These documents reflect the name of Farid Shah, indicating that he was declared entitled to receive the compensation amount as assessed by the CollectorlRevenue officials. A reference petition for the enhancement of compensation was filed before the Referee Court, which was allowed through its judgment dated 30.03.2013.

This decision was subsequently upheld by this Court through its judgment dated 22.10.2014.

Notably, no objections were raised bY the judgment debtors/appellants, who were contesting parties in the proceedings.

5 Another significant asPect of the case is that the Award available on the case file Muhammad Tariq (S.8.) Hon'ble Mr, Justicc Aurangzeb

establishes that compensation for the acquired land was to be distributed among the owners based on their respective entitlements as recorded in Register Haqdara-e-Zameen under Khana Malkiat. Meanwhile, compensation for land that had been sold, as recorded in Khana Kasht, was to be paid to the purchasers 1n Khana Kasht to protect their interests. Therefore, the objections raised by the counsel for the judgment debtors, challenging the entitlement of the decree holders to the compensation amount, appear to be unjustified.

Consequently, these objections are declined, as the name of their predecessor, Farid Shah, is duly reflected in the revenue record as an owner in Khana Kasht.

5 During arguments the learned counsel for the appellant confronted with the provision of the Civil Procedure Code, 1908, Order XXI rule 23-A pertain to the execution ot Money Decree, provide a procedure for filing objection. The learned counsel for the appellant Muhammad Tariq (S.8.) Hoo'ble Mr. Justicc A rangzeb

contended that their case fall under Order 27 Rule 8-A CPC which is reproduced as under:- Order)OUll

SUITS BY OR AGAINST THE TGOVERNME FOR PUBLIC

OFFICERS IN THEIR OFFICIAL CAPACITY.

1.Suit by or against Government--- In any suit by or against [the Government], the plaint or written statement shall be singed by such person as [Government]may, by general or special order, appoint in this behalf, and shall be verified by any person whom [the Government] may so appoint and who is acquainted with the facts of the case.

Rule 8-A CPC

"No security to be required from Government or a public ofJicer in certain cases".

No such security as is mentioned in rules 5 & 6 of order XLI shall be required from the [Govemment] or, where the [Government] has undertaken the dcfence of the suit, from any public officer sued in respect of an act alleged to be done by him in his official capacity.

Order 27 Rule 8-A of the Code of Civil Procedure Code 1908 states that in certain cases, no security deposit will be required from the Government or a public officer when they are being sued for action taken in their official capacity; essentially, it exempt the Government from providing security in specific legaliy proceeding against them' This Rules essentially means that when the Govemment Muhammnd Tariq (S,8.) HoIl'ble Mr. Justice Aurang2eb

or a public officer is sued for official acts they are not required to provide a security deposit as per the usual rules in Order XLI of the Civil Procedure Code, 1908. The exemption only applies when the Government or public officer is being sued for action done in their official capacity. While Order 21 rule 23-A of Code of Civil Procedure Code, 1908 essentially state that if a judgment debtor wants to raise an objection against the execution ol a decree, they must first deposit the decretal amount in Court or provide security for its payment before their objection can be considered, meaning they cannot simply object without first providing financial assurance to the Court, this Rule applies when a judgment debtor wishes to dispute the execution of a decree against them. Order 2l rul,e 23-A as reproduced as under:-

Order 21 Rule 23-A.

Deposit of decretal amount, etc--- Al objection by the judgment debtor to the execution of a decree shall not be considered by the Court unless---

(a). in the case ofa decree for the payment of money, he either dePosits the decretal amount in Court or furnishes security for its PaYment: and

Muhammad Tlriq (S.8.) Hon'ble Mr. Justicc Aurangzeb

(b)in the case of any other decree, he fumishes security for the due performance of the decree.

This rule is considering mandatory, meaning the Court cannot entertain objection unless the security requirement is not fulfilled. In the case of Najm Koreshi v/s CHASE MANHATTAN BANK

NOW MUSLIM COMMERCIAL LIMITED,

LAHORE and others repo rted as 2015 SCMR 1461, the Hon'ble Apex Court has held that for interest under the Decree to be applied and calculated,, it is necessary that the base frgure, that is, "decretal amount", is an ascertained or a readily ascertainable amount. The view that the expression "decretal amount" should be an ascertained sum finds support from the terms of Order XXI, Rule 23A, C.P.C. wherein for raising an objection to a decree, the judgment debtor must deposit or secure the "decretal amount" with the executing court.

Likewise in Muhammad Sadiq v. WAPDA (PLD 2003 SC 290) it has been held that deposit in Court under Order XXI, Rule l, C.P.C' of money payable under a decree entitles a judgment debtor to the relief of suspension in the accrual of further interest. For a deposit to be made to avail the said Itluhammad Tariq (S.B.) Hon'ble Mr. Justice Aurongzetl

relief it is necessary that the requisite amount is ascertained or readilv ascertainable. Such a sum is the principal amount adjudged and the decretal amount. In the present case also such sum is the decretal amount upon which interest under the Decree is to accrue. In the case of HAPPY FAMILY ASSOCIATE throush CHIEF

EXECUTIYE v/s Messrs PAKISTAN

INTERNATIONAL TRADING COMPANY

reported as PQ-2.0.06;9ru, the Hon'ble Apex Court has held that it was unfortunate that some litigants attempt to frustrate decree/its execution by resorting to provisions of Ss.12(2) and 151, C.P.C., unnecessarily---Objection to execution by judgment-debtor could not be considered unless judgment-debtor had deposited decretal amount in Court or had furnished a security for its payment, under O.XXI, R.23-A, C.P.C.---Both the Executing Court and High Court had correctly found that objections of defendant to execution of decree were liable to be dismissed for failure to comply with the provisions of O.XXI, R.23-A, C.P.C., in spite of the order of Executing Court---Leave to appeal was refused. In the case of NADEEM AKHTAR MuhA mad Tariq (S.B.) Hon'blc Mr. Justice A rangzeb

TABASUM Y/S MUSLIM COMMERCIAL

BANK LIMITED and others re ported as 2014 SCMR 1371 , the Hon'ble Apex Court has held that mortgaged property was put to auction twice---First auction was set aside at the motion of the judgment-debtor and other objectors and re-auction was ordeled---Judgment-debtor was fully aware of the re-auction proceedings---Judgment-debtor could not challenge the auction on grounds that notice was sent to the incorrect address, as notice was also published in the newspaper---Part of decretal amount already paid by the judgment- debtor was adjusted by the bank/decree holder towards the outstanding liability of the judgment- debtor---Appeal filed by judgment-debtor against judgment of Banking Court was rightly dismissed in limine by the High Court---Petition for leave to appeal was dismissed accordingly and leave was refused.

6.In view of the above discussion and exposition oflaw on the subject, the instant Appeal against the Order being bereft of any merits is hereby dismissed and consequently the impugned Muhammad Tariq (S.8.) Hon'ble Mr. Justice Auraogzcb

judgment and decree of the leamed trial court dated 07 .01.2025 is maintained and upheld.

Announced Dt: 24.02.2025

JUDGE

Muhammad Tariq (S.B.) Hon'blc Mr. Justice Aurangzcb