Form No:HCJD/C-121

JUDGMENT SHEET
IN THE LAHORE HIGH COURT,
MULTAN BENCH, MULTAN
(JUDICIAL DEPARTMENT)
[Link]. 16168 of 2021

Muhammad Abdul Rehman

Versus

Additional District Judge and 2 Others

JUDGMENT
Date of hearing: 24.11.2021
Petitioners by: Ms. Sittara Naeem Abbas,
Advocate
Respondent by: Mr. Muhammad Asif Manzoor,
Advocate –Respondent No.3

Sultan Tanvir Ahmad, J:– Through this

Petition filed under Article 199 of the Constitution of the
Islamic Republic of Pakistan, 1973, Petitioner has
assailed the order dated 06.10.2021 passed by learned
Additional District Judge, Multan, whereby orders dated
14.07.2021 and 18.09.2021 passed by learned trial Court
have been upheld and the Appeal has been dismissed.
2. Facts, necessary for the disposal of the
present petition, are that on 29.04.2017 consolidated
Judgment and Decree was passed by the learned Judge
Family Court, Multan whereby following relief was
granted to the Respondent No.3:-
“---the suit of the plaintiff for recovery of
dower is hereby partially decreed in a way that
the claim of the plaintiff to the extent of 8-tolas
gold ornaments is hereby refused while she is
held entitled to get godown or its alternate i.e.
Rs.30,00,000/- from the defendant. The suit of
the plaintiff for recovery of dowry articles is
Writ Petition No.16168 of 2021 2

hereby dismissed and the suit of the defendant

for restitution of conjugal rights is hereby
dismissed being infructuous”.

3. During the pendency of the execution of the

aforesaid Judgment and Decree, Petitioner filed objection
petition, pleading that Rs.851,000/- has already been paid
out of the Court, for the satisfaction of the decree and the
matter has been settled. Respondent No. 3 contested the
said objection while denying any payment for the
satisfaction of the decree as well as any settlement out of
the Court. This objection petition was rejected vide order
dated 14.07.2021 by the learned executing Court while
observing as follows:-
‫ث ث‬
‫…وکلسنڈرگیدارہےناسووصیلوکااکنرایکےہ۔یسکثالےکرقترےسااکنر‬.”
‫ت‬
‫دروخاس دموین ثا ل‬
‫اقب شیپ رتف ےہ ہک ڈرگیدارہ وک‬ ‫ایک ےہ۔ ان احالت ںیم‬
َ
‫ت‬
‫یسکایسی ووصیل ےس ااکنر ےہ۔ اعمہلم دعال ںیم ِزیر ر‬
‫وجتی ےہ۔ اس ےئیلادایگیئ‬
‫ت ت‬
‫سح اضہطب رکوایئ اجوے۔دروخاس ثل ل ت‬
‫اب دموین البوجاز ےہ۔ اخرجیک اجیت‬ ‫ِل‬

‫… ت‬..‫ےہ‬

4. The aforementioned order as well as order

dated 18.09.2021 whereby warrant of arrest of the
Petitioner was issued, were assailed before the learned
Appellate Court through the Civil Appeal dated
06.10.2021 and the said Civil Appeal was dismissed in
limine. Aggrieved from the same present petition has
been filed.
5. Ms. Sittara Naeem Abbas, learned counsel
for the Petitioner has argued that orders dated
14.07.2021, 18.09.2021 and 06.10.2021 are against the
law and the compromise between the parties before the
arbitrator has been ignored. It is contended by the learned
Writ Petition No.16168 of 2021 3

counsel for the Petitioner that the payment out of the

Court is in accord with the Rule XXI (2) of the Civil
Procedure Code, 1908 (the ‘Code’) and in this regard, the
learned counsel for the Petitioner has relied upon the
affidavits of Sheikh Muhammad Awais, Muhammad
Khubaib Khan Khakwani and Muhammad Saleem dated
11.02.2021, 12.02.2021 and 11.02.2021, respectively as
well as a receipt purportedly issued by Faisal Allah Ditta
s/o Shehzad Saleem, the brother of Respondent No.3.
6. Mr. Muhammad Asif Manzoor, Advocate,
the learned counsel for the Respondent has opposed the
present petition as well as denied accepting any out of
Court payment or settlement and the execution of the
aforesaid receipt by the brother of Respondent No.3.
7. It is settled law that the rights of the parties
are crystallised on passing the decree by a competent
Court. Unless the Appellate Court intervenes, decree
attains finality and the executing Court cannot go behind
this decree subject to very limited circumstances
permissible under Section 47 of the Code. Nevertheless,
this does not preclude the parties to enter into
compromise or settle or make payment out of the Court,
however, this has to be in accordance with Order XXI
Rule 1 and 2 of the Code. Here it will be beneficial to
reproduce the relevant provision of the Code with respect
to the out of Court payment for the satisfaction of the
decree:-
Order XXI Rule (1). Modes of paying money
under decree. – (1) All money payable under a
decree shall be paid as follows, namely;--
(a) XXXXX
(b) out of Court to the decree-holder
1[through a bank or by postal money order or
evidenced by writing signed by the decree-
holder or his authorized agent];or
Writ Petition No.16168 of 2021 4

(c) otherwise as the Court which made the

decree directs.
2 XXXXX
Order XXI Rule (2). Payment out of Court to
decree-holder.—(1) Where any money payable
under a decree of any kind is paid out of Court,
or the decree is otherwise adjusted in whole or
in part to the satisfaction of the decree-holder,
the decree-holder shall certify such payment
or adjustment to the Court whose duty it is to
execute the decree, and the Court shall record
the same accordingly.
(2). The judgment-debtor also may inform the
Court of such payment or adjustment, and apply
to the Court to issue a notice to the decree-
holder to show cause, on a day to be fixed by
the Court, why such payment or adjustment
should not be recorded as certified; and if after
service of such notice, the decree-holder fails to
show cause why the payment or adjustment
should not be recorded as certified, the Court
shall record the same accordingly.
(3) 1[Any payment not made in the manner
provided in rule 1 or any adjustment not made
in writing shall not be recognized by the Court
executing the decree.]

8. The aforesaid provisions are plainly worded

and contain hardly any ambiguity. As per Order XXI Rule
1(b) of the Code, plea of out of Court payment is not
acceptable unless payment is made through bank or by
postal money-order or it is evidenced in writing and
signed by the decree-holder or his duly authorized agent.
9. Rule 2(1) of Order XXI of the Code further
clarifies that where the payment is made out of the Court,
in whole or in part to the satisfaction of the decree-holder,
the same has to be certified by the decree-holder. The
judgment debtor can also apply to Court under Rule 2(2)
of the Order XXI of the Code for recording of adjustment
or payment made. Rule 2(3) of Order XXI of the Code
contains the word shall making it obligatory, with express
prohibition to accept contention of any out of Court
payment which does not fulfil the criteria of Rule 2(1) or
Writ Petition No.16168 of 2021 5

the adjustment which is not in writing. The said

provisions, at the same time, have also imposed a duty
upon the judgment-debtor to ensure securing the signed
documents from no one else but the decree-holder or his
properly authorised agent.
10. Combined reading of the above reproduce
provisions does not leave a lurking doubt that plea of out
of Court payment, if not supported by proof of payment
through banking instrument, postal money-order or
clearly evidenced in writing carrying signatures of the
decree-holder or his authorised agent, the executing Court
cannot accept such an out of Court payment, unless it is
confirmed by the decree-holder to the executing Court.
Order XXI Rule 1 and 2 while requiring a decree to be
satisfied before the Court or the payment through
irrefutable instrument or supported by unquestionable
evidence, contains clear wisdom to avoid another round of
litigation with respect to the satisfaction of decree and
multiplicity of litigation.
11. In this regard, Supreme Court of India in
case titled “M.P. Shreevastava vs Mrs. Veena” (1967 AIR
1193) has observed as follows:-
“Similarly an application under cl. (1) or cl.
(2) of r.2 O.21 for recording payment of money
under or adjustment of a decree has to be
made to the Court whose duty it is to execute
the decree, whereas prohibition against
recognition of an uncertified payment or
adjustment is imposed upon the Court
executing the decree by sub-rule (3). There is
no doubt that the expression “Court whose
duty it is to execute the decree” means a Court
which is under the law competent to, and when
requested bound to, execute the decree which
is in law enforceable, and where an
application is made under O. 21 r. 1(1)(a) or
under O. 21 r.2 (1) or (2) there need be no
substantive application for execution pending.
It also appears, from the terms of cl. (3) of O.
Writ Petition No.16168 of 2021 6

21 r.2, that the prohibition is against the Court

executing the decree.
(Emphasis supplied)
12. This Court in case titled “Muhammad Jamil and
Others versus Haji Muhammad Din & Sons”(PLD 1995
Lahore 107) has also observed that any payment contrary to
the Rule 1 or adjustment not in writing cannot be recognized
by the executing Court. The relevant part of paragraph No.
06 of the judgment case titled “Muhammad Jamil” case
(Supra) is as follows:-
“6. Any payment made in the manner not
provided in rule 1 or adjustment not made in
writing cannot be recognized by the executing
Court. Now, in the present case, the first
instalment was allegedly paid on 31-03-1992,
but the appellants did not move the executing
Court under rule 2 of Order XXI, C.P.C. It was
only on 14-12-1992 after receiving notice in
the execution proceedings initiated by the
respondent, when the appellants proceeded to
file the objection petition. The same was not
competent”.
(Emphasis supplied)

13. The dicta laid down in above referred case

and the law discussed above, setting-forth the basic and
essential requirements to be establish that the decree has
been satisfied out of the Court, takes this Court to
examine the documents relied by the petitioner to show
the payment and genuineness of his claim, which are as
follows:-
(i). Affidavit of Sheikh Muhammad Awais, dated
11.02.2021,
(ii). Affidavit of Muhammad Khubaib Khan Khakwani,
dated 12.02.2021.
(iii). Affidavit of Muhammad Saleem, dated 11.02.2021
and,
(iv). A receipt purportedly issued by Faisal Allah
Ditta s/o Shehzad Saleem, the brother of Respondent
No.3.
 Writ Petition No.16168 of 2021 7

14. The aforementioned affidavits are given by

the strangers to the lis or the decree in question. As far as
the receipt is concerned, the same does not contain the
signatures of the decree-holder and it is purportedly
issued by the brother of the decree-holder, without any
proof of the fact that he was recognized and authorised
agent of the decree-holder. The signature, of the brother
of the decree-holder, on the said receipt is, even
otherwise, disputed and the Decree-holder has never
certified the payment in the Court responsible to execute
the decree. Such documents cannot satisfy the
requirements laid down by Order XXI Rule 1 and 2 of
the Code.
15. Learned counsel for the Petitioner has
miserably failed to convince this Court to exercise its
jurisdiction under Article 199 of the Constitution of
Islamic Republic of Pakistan, 1973. The orders passed by
learned Courts below contain no illegality or defect,
hence the same are upheld and the present petition is
dismissed, with no order as to costs.

(SULTAN TANVIR AHMAD)

JUDGE
APPROVED FOR REPORTING

Hashmi/* JUDGE