2021 M L D 556[Peshawar (Abbottabad Bench)]Before Shakeel Ahmad, JSOHAIL MAQBOOL AWAN---PetitionerVersusFAHAD IDREES---RespondentCivil Revision No.284-A of 2014, decided on 15th July, 2020.
Civil Procedure Code (V of 1908)---
----Ss. 148 & 151---Decree, issuance of---Enlargement of time---Subject to deposit of court fee within stipulated time---Scope---Non-compliance of condition attached with the decree---Effect---Decree issued in favour of petitioner/plaintiff was subject to depositing balance court fee within fifteen(15) days, failing which the suit would be deemed to have been dismissed---Executing Court dismissed the execution petition of the petitioner because he had failed to deposit balance court-fee within stipulated time ---Held, that the Trial Court once having passed a conditional decree, the suit would stand automatically dismissed for non-deposit of court fee within the stipulated time incorporated in the judgment and decree---Court issuing the decree would become functus officio and the time could not be enlarged by the Executing Court not only because non-compliance had operated into automatic dismissal of suit but also because a valuable right had also accrued to the respondent/defendant---Court could not extend the time under S.148, C.P.C., where the period was fixed/granted by the decree/final order---Decree could be altered by review or appeal or revision; but neither S.148 nor S.151, C.P.C., could be utilized for the purpose of altering a decree---No illegality or irregularity was found in the impugned order passed by the Executing Court---Revision petition was dismissed, in circumstances.
Mst Lal Rain v. Durga Das Narain AIR 1924 Pat 387 and Himmurs v. Fauja AIR 1921 Lah. 06 ref.
Muhammad Jehangir Khan for Petitioner.
Qazi Obaid-ur-Rehman for Respondent.
Date of hearing: 15th July, 2020.
JUDGMENT
SHAKEEL AHMAD, J.---The instant revision petition is directed against the order dated 27th of June 2014 rendered by the learned Civil Judge-V, Haripur, dismissing the petitioner's execution petition on account of non-deposit of court fee within the stipulated period, incorporated in the judgment and decree dated 19th of March 2012.
2. The relevant facts for disposal of the present revision petition are that petitioner was granted a decree for cancellation of agreement dated 04.10.2010, declaration to the effect that he and proforma defendants Nos.3 to 5 are owners of the suit factory, along with all its affixtures, inclusive of land, building, vehicles, furniture and supply contracts etc, recovery of rupees five crore along with profits earned by the respondent / defendant No.1, permanent injunction restraining the respondent from alienating the suit property by way of sale etc. On 19.03.2012 ex-parte decree was granted in favour of the petitioner subject to deposit of balance court fee within fifteen (15) days, failing which the suit would be deemed to have been dismissed. The petitioner / decree holder filed execution petition on 16.04.2012, however, he failed to deposit the requisite court fee within the stipulated time. Such petition for execution of decree was dismissed vide judgment / order dated 27.06.2014, hence, this revision.
3. It was contended by the learned counsel for the petitioner that petitioner was not in the knowledge of conditional decree passed by the learned trial court on 19.03.2012. He next contended that petitioner had deposited the balance court fee on 07.04.2012, which is well within time but the court below has failed to take into consideration the date of receipt of the court fee mentioned in the court fee, which resulted in gross-miscarriage of justice, thus, warrants interference.
4. Conversely, learned counsel appearing on behalf of the respondent argued that the petitioner failed to deposit the court fee within the stipulated period incorporated in the judgment and decree dated 19.03.2012, therefore, the execution petition was rightly dismissed by the learned executing court. He added that the impugned judgment passed by the learned executing court does not suffer from jurisdictional defect or result of misreading and non-reading of relevant law, therefore, needs no interference.
5. I have heard the learned counsel for the parties at length and gone through the record with their valuable assistance.
6. It is evident from the record that vide judgment dated 19.03.2012, the suit of the petitioner was decreed ex-parte against the respondent / defendant No.1 subject to deposit of balance court fee within fifteen (15) days, failing which the suit shall be treated as dismissed. A perusal of the record reflects that court fee of Rs.12,000/- was placed on record without any judicial order and without the signatures of the learned Presiding Officer bearing the date as 07.04.2012, however, the court fee / stamp paper issued by the District Accounts Treasury Haripur reveals that it was issued on 6th of April 2013. Though it was contended by the learned counsel for the petitioner that the year of issuance of court fee was mistakenly written as 2013 instead of 2012. If this argument of the learned counsel for the petitioner is accepted even then the court fee was deposited in the court beyond the stipulated period incorporated in the judgment and decree dated 19.03.2012.
7. Furthermore, the order sheet No. 16 dated 19.03.2012 reveals that the conditional decree was announced in presence of the petitioner / plaintiff and not in his absence, therefore, his plea that he was not aware of the conditional decree passed on 19.03.2012 does not carry weight.
8. It is by now settled that the learned trial court once having passed a conditional decree, the suit stood automatically dismissed for non-deposit of court fee within the stipulated time incorporated in the judgment and decree, the court passing the decree would become functus officio and the time could not be enlarged by the learned executing court not only because noncompliance had operated into automatic dismissal of suit, but also because a valuable right had thereby accrued to the respondent. In this behalf reliance can be placed on the judgment reported as Mst. Lal Rain v. Durga Das Narain (AIR 1924 Pat 387) wherein it was held that the court cannot extend the time under Section 148, C.P.C. where the period is fixed or granted by the decree or final order.
9. In this context reference may also be made to the case reported as Himmurs v. Fauja (AIR 1921 Lah. 06). In this case it was observed by the Full Bench that a decree can be altered by review or appeal or revision, but neither section 148 nor Section 151, C.P.C. can be utilized for the purpose of altering a decree.
10. I, for the aforesaid reasons, dismiss this revision petition and hold that the impugned judgment / order dated 27th June of 2014 of the learned Executing Court, dismissing the execution petition holding it to be not maintainable is in conformity with law and does not warrant interference by this court. Resultantly, this petition is dismissed with no order as to costs.
MQ/284/P Revision dismissed.
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