JUDGMENT SHEET

IN THE HIGH COURT OF SINDH,

CIRCUIT COURT, HYDERABAD.

                                                Misc. Appeal No.08 of 2013

DATE        ORDER WITH SIGNATURE OF JUDGE

Date of hearing:                  19.12.2014.

Date of judgment:              12.02.2015.

Mr. Faraz Ahmed Chandio, Advocate for appellant

Respondent No.1 Wali Khan, in person.

J U D G M E N T

SALAHUDDIN PANHWAR, J:      Through instant Appeal the appellant has assailed the legality of order dated 13.9.2013, passed by learned 1stAdditional District Judge, Badin in Ex. Appln.No.03 of 2010 offshoot of summary Suit No.01 of 2009 “Re-Wali Khan V. Muhammad Ameen’ whereby execution application was allowed.

2.         A brief reference of the facts is that plaintiff / respondent filed a Summary Suit against the defendant / appellant wherein claiming that he is a shop-keeper and deals in Electronic appliances. On 10.5.2007 appellant / defendant purchased electronic articles amounting toRs.240,000/- on credit to be paid within 12 months. Such agreement was executed and defendant / appellant also issued post dated cheque amounting to Rs.230,000/- and aid Rs.10,000/- in cash. Plaintiff / respondent No.1 further pleaded that defendant / appellant issued 2 cheques for Rs.60,000/- andRs.40,000/- but both were dishonoured so he lodged an FIR No.177 of 2008 U/s 489-F, 420,34 PPC with PS Matli and then filed Summary Suit for recovery of the amount.

3.         In response to process, the appellant / defendant appeared; sought leave to defend the suit wherein denying averments of plaint and pleading that he had purchased some articles on credit amounting to Rs.30,000/- and issued a cheque ofRs.30,000/- which he written in figure and then same was tampered.

4.         Out of the pleadings, the learned trial court struck the following Issues:-

1.Whether the defendant took articles (mentioned in annexure”A/1”) worth of Rs.240,000/- on credit from plaintiff and executed an agreement in favour of plaintiff in presence of two attesting witnesses?

2. Whether the defendant issued a cheque No.969103 dated 11.9.2008 of his account No.1157-3 of Muslim Commercial Bank Limited, amounting to Rs.230,000/- to the plaintiff and the same has been dishonoured due to non-availability of cash?

3. Whether the cheque was issued for amount of thirty thousand only and plaintiff has added the figure and word two (2) in it?

4. Whether the defendant is liable to pay an amount of Rs.230,000/- to the plaintiff?

5. Whether the suit is maintainable in law?

6. Whether the plaintiff is entitled for the relief claimed?

7. What should the decree be?

5.         In order to prove the case, the plaintiff / respondent examined himself; produced agreement; agreement form, cheque of Rs.230,000/- alongwith memo , cheque for Rs.60,000/- alongwith memo; Shah Wali and Mujahid were also examined by plaintiff / respondent and then side was closed.

6.         On the other hand, the appellant / defendant examined himself and closed his side. On conclusion of the trial, the learned trial Court judge decreed the suit vide judgment and decree dated 26.4.2010 which, the present appellant / defendant challenged as Civil appeal No.13 of 2010.

7.         It is further case of the appellant / defendant that during pendency of above appeal learned trial court judge has allowed the execution application vide impugned order which has been assailed through instant Misc. appeal.

8.         Learned counsel for the appellant / defendant No.1, inter alia, argued that order, impugned, is opposed to law as R & Ps of main suit was called in appeal, preferred by appellant before this honourable court; appellant had furnished surety in respect of claim of respondent No.1 at time of filing of written statement but this was not appreciated while allowing execution application; issuance of writ of attachment of the belonging of the surety was illegal.

9.         The respondent, present in person, while arguing his own case, asserted that mere filing of an appeal shall not operate as status-quo nor prohibits filing of execution application and process therefore, hence order of the lower court is legal one.

10.       I have heard the arguments of respective sides and have perused the available material carefully. There can be no denial to the legal position that the Code (C.P.C) recognize the right of an aggrieved person to file an appeal but all the provision (s), relating to right of appeal, by themselves never suspend the operation of the order, impugned. The procedure for getting the operation of an order, impugned, suspended is not controlled by the provision (s) of appeal but is independent and separate which, the appellate Court, if satisfied, exercise. The Code, no where, restricts a decree holder from filing of the execution application during pending proceeding of the appeal. The law recognizes two modes for staying of the execution proceedings i.e one ordered by appellate court or one ordered by the executing court itself. It cannot be legally approved that a Decree Holder shall stand deprived from his right of seeking the execution proceeding pending disposal of the appeal which, I painfully acknowledge, may take years together even more time than the one provided for filing execution application. Thus, filing of appeal, in no way, can operate as a stay order over right of D.H. to file execution application nor by itself shall term as suspension of order/ decree, impugned.  

11.       In the instant case, it is not the case of the appellant that there was stay order from the appellate court (this court in main appeal) or that operation of the impugned judgment and decree were suspended by this Court in such appeal, therefore, plea of the appellant that on filing of the appeal the learned lower court should have stayed its hands away from proceeding with execution application cannot be stamped.

12.       Further, it is not submitting of surety which matters for adjustment / satisfaction of the decree but the compliance thereof which matters. The executing court, while proceeding with the execution proceeding, can competently resort to all available legal courses, provided by the Order 21 of the Code for satisfaction of the decree which, no doubt, includes issuance of attachment warrant. Thus, issuance of attachment order was also not illegal. The appellant has failed in establishing any illegality or irregularity on part of the learned lower court and in absence thereof the appeal is not sustainable.

13.       In view of the above discussion, I find no substance in the instant appeal, which is accordingly dismissed with no order as to costs.

                                                                                                                        JUDGE

Tufail