In “Sardar
Ahmad Yar Khan Jogezai and 2 others v Province of
Balochistan through Secretary C & W Department”
(2002 SCMR 122), it was ruled by the August
Supreme Court that:
“An in depth scrutiny of the entire record
would reveal that judgment/decree
passed by learned High Court on
04-11-1985 had attained finality and
furthermore the modification as allowed
vide said judgment/decree was free from
any ambiguity and accordingly the
question of any clarification by the
executing Court does not arise. The
learned executing Court has modified the
decree which had already attained
finality by means of order, dated
13-4-1989 … A bare perusal would reveal
that “simple interest at the rate of 6% per
annum from the date of decrees” as
awarded by the learned High Court vide
judgment/decree dated 04-11-1985 was
substituted by holding that “the decree
holders are entitled to the awarded
amount, work plus interest awarded
added thereto from 1960 to the date of
application with the rate of interest given
in the award and till the date of the
decrees dated 21-5-1977 and thereafter
till the realization of the whole decretal
amount at 6% per annum with simple
interest”. The said substitution or drastic
amendment could not have been made by
the learned Executing Court which in fact
amounts to a futile attempt to frustrate
the object of judgment and decree dated
4-11-1985 which had already attained
finality and thus the order dated
13-4-1989 passed by the learned District Judge Loralai (executing court) is
arbitrary, capricious and corum non
judice. It worth mentioning that executing
court could not go beyond the decree. It is
well-settled by now that “when decree
passed attained finality it had got to be
executed even if it was erroneously
passed. Executing Court cannot rectify
any mistake in decree which would
tantamount to going behind decree” … A
court executing a decree cannot go behind
the decree; it must take the decree as it
stands, for the decree is binding and
conclusive between the parties to the
suit…”
Part of Judgment
Lahore High court
Civil Revision
1643006.1399-14
2018 LHC 3512
0 comments:
Post a Comment