--S. 13--Execution petition--Surety of judgment debtor--Respondents approached learned Family Court for recovery of maintenance allowance which was ultimately decreed and attained status of finality--

 PLJ 2022 Lahore 70

Family Court Act, 1964 (XXXV of 1964)--

----S. 13--Execution petition--Surety of judgment debtor--Respondents approached learned Family Court for recovery of maintenance allowance which was ultimately decreed and attained status of finality--Formers approached learned Executing Court for execution of said decree, but in spite of adopting due course of proceedings, respondent failed to realize decree, who was arrested and put behind civil prison--Petitioner appeared on scene for rescue of her son (judgment debtor) and voluntarily submitted surety bond--Judgment-debtor failed to satisfy decree and learned Executing Court was compelled to attach immoveable property of petitioner/surety--Surety under law has no right to restrain an action against her, rather having stood guarantor, she had been substituted for her principal--Crux of contract of guarantee is that it binds surety--Executing Court was quite justified to adopt measures against petitioner/surety--Petition dismissed.                                             

                                                          [Pp. 70, 71, 72 & 73] A, B, C & D

1989 CLC 2441; 2006 CLD 687; PLD 2014 Lahore 429; 2005 SCMR 72; PLD 1953 Lahore 22; 2000 CLC 85; 2000 CLC 451 ref.

Mr. Muhammad Qadir Asif Toor, Advocate for Petitioner.

Date of hearing: 14.7.2021.

 PLJ 2022 Lahore 70
[Multan Bench, Multan]
Present: Ch. Muhammad Masood Jahangir, J.
Mst. MANZOOR ELAHI--Petitioner
versus
ADDITIONAL DISTRICT JUDGE, MAILSI, etc.--Respondents
W.P. No. 10915 of 2021, decided on 14.7.2021.

Order

Shorn of unnecessary details apart, Fazal Hassan Respondent No. 5 (the real son of present petitioner) wedded Mst. Kausar Perveen, Respondent No. 3 and out of their wedlock, Shabana Zartaj, Respondent No. 4/minor girl was born. The Respondents No. 3 & 4 approached learned Family Court for recovery of maintenance allowance etc. against Respondent No. 5, which was ultimately decreed on 10.06.2012 and attained status of finality. The formers approached the learned Executing Court for the execution of said decree, but in spite of adopting due course of proceedings, Respondent No. 5/ judgment-debtor failed to realize the decree, who was arrested and put behind the civil prison. Thereafter, the petitioner appeared on the scene for the rescue of her son (judgment-debtor) and voluntarily submitted surety bond on 14.09.2017 while giving assurance to the following effect:

منکہ منظور الہی زوجہ احمد بخش ذات بھٹی سکنہ میلسی ضلع وہاڑی کی ہوں۔ بقائمی ہوش و حواس خمسہ بلا جبر اکراہ اقرار کرت ہے کہ ایک دعویٰ بعنوان کوثر پروین وغیرہ بنام فضل حسن جو کہ فضل حسن کے خلاف ڈگری ہوا ہے۔ اور مدعا علیہ زیر حراست ہے۔ جس میں مبلغ 20000/- روپے زر ڈگری میں سے ادا کر رہی ہوں اور بقیہ زر ڈگری ادا کرنے کی پابند رہے گی۔ ضمانت نامہ بعنوان کوثر پروین وغیرہ بنام فضل حسن بحق سرکار تحریر کر دیا ہے تاکہ سند رہے اور بوقت ضرورت کام آو۔۔

In consequence of the above situation, Respondent No. 5 was conditionally released, but subsequently the petitioner tabled two applications; one for withdrawal of her surety and the other for stoppage of warrant of attachment of her property avowing therein that she being advance aged and heart patient lady wanted to sell out the property for her treatment, which were dismissed on 10.05.2019. Thereafter she filed application for production of new surety, which was not only dismissed on 10.11.2020, but also directed by the learned Executing Court to produce judgment-debtor within three days for satisfaction of the decree, but despite specific directions, none appeared even on behalf of the surety, thus proceedings against her were initiated on 13.11.2020. Being dejected, the petitioner preferred appeal before the learned Appellate Court below, which dismissed on 09.06.2021, thus petition in hand.

2. Arguments heard and record scanned.

3. It is an admitted fact that Respondent No. 5/judgment-debtor being defaulter was arrested, but thereafter released on furnishing of surety bond by the petitioner with afore-noted undertaking and recording her statement to the following effect:

بیان کیا کہ ضمانت نامہ سن و سمجھ لیا ہے ضمنانت ضمانت نامہ درست و صحیح ہیں۔ ضمنات ضمانت نامہ کی مکمل پابندی کروں گا اگر کوئی کوتاہی کروں گا تو عدالت حضور کو اختیار حاصل ہو گا کہ وہ میری جائیداد قرق/نیلام کرکے ضمانت وصول کر سکتی ہے۔

thus indeed bound down herself thereby to satisfy the upcoming decree. Again the judgment-debtor failed to satisfy the decree and learned Executing Court was compelled to attach the immoveable property of the petitioner/surety. It was a matter of fact and record that neither she ever assailed her statement nor denied the same, which left no panorama for her to wriggle out of it. Thus prior to discharging her liability, the petitioner could not dictate terms to the creditors to pursue their remedy against the principal in the first instance. The surety under the law has no right to restrain an action against her, rather having stood guarantor, she had been substituted for her principal and afterwards it was the choice of the decree holder(s) to proceed any of them severally or both of them jointly. The crux of the contract of guarantee is that it binds the surety in a co-extensive manner, whereas on the fulfillment of condition, the principal was released from the jail without execution of the decree and now it was tried to be avoided for the afore-noted objection(s). The petitioner at her own accord had stepped into the shoes of the judgment debtor, as such she was equally responsible for the realization of his liability. Reliance is placed on the judgments reported as Mirza Anwar Ahmad vs. Habib Bank Ltd., Faisalabad end others (1989 CLC 2441), Messrs State Engineering Corporation Ltd. vs. National Development Finance Corporation and others (2006 CLD 687), Muhammad Bashir through Legal Heir vs. Zarina Bibi and others (PLD 2014 Lahore 429), Rafique Hazquel Masih vs. Bank Alfalah Ltd. and other (2005 SCMR 72). In the case of M/s. State Engineering (supra) it was held as under:

“Section 128 is applicable in the given circumstances. The liability of the guarantor/surety is co-extensive with that of the principal debtor, unless it is otherwise provided by the contract as envisaged in Section 128 of the Contract Act, 1872. They are jointly and severally liable to pay the outstanding amount to the creditor. A guarantor cannot shirk from the liabilities incurred by him through the execution of documents.”

Almost similar view was adopted in Rafique’s case (supra) and for ready reference its relevant extract is reproduced hereunder:

The liability of the surety under Section 128 of the Contract Act is co-extensive with that of the principal debtor, unless it is otherwise provided by the contract…….In absence of any specific stipulation in the contract, a guarantor cannot take up the plea that the Bank should enforce the liability against the principal debtor before proceedings against the guarantor. The reason being that the Bank grants loan only on the guarantee and in absence of letter/contract of guarantee the Bank may not have sanctioned the loan.

Besides, Section 145 of the Code, 1908 is more than clear on this point.

4. The next grouse of the petitioner that she was not party to the original lis, as such decree was not executable against her, has also been dealt with by this Court in cases reported as Khan Muhammad Ishaq Khan vs. The Azad Sharma Transport Co. Ltd. and others (PLD 1953 Lahore 22), Mrs. Muhammad Shafi through Agent vs. Sultan Ahmed (2000 CLC 85) and Habib Bank Limited vs. Malik Atta Muhammad and 4 others (2000 CLC 451). In latter case it was held as under:

“As far the objection that the petitioner Bank being surety was not a party to the original suit or appeal, therefore, the execution of the decree passed against Agent Domez Borie could not be taken out against them, suffice it to refer to Section 145, C.P.C. whereby it is provided that even though a surety is not arrayed as a party to the suit or appeal, the decree against the judgment debtor can also be executed against the surety and rightly so because it is well accepted that the liability of the surety is co-extensive with the judgment debtor and continues till such time that the decree is either satisfied by the judgment debtor or by the surety. The provision of Section 145, C.P.C. eminently makes it clear that such surety shall, for the purpose of appeal, be deemed to be a party within the meaning of Section 47, C.P.C. The expression “deemed to be” manifestly refers to the my whereby a thing is presumed to be in existence while in fact it is riot in existence. A surety need not be made a party to the proceedings until execution is sought against him. If any authority is needed, reference may be made to Khan Muhammad Ishaq Khan v. The Azad Sharma Transport Co. Ltd. and others PLD 1953 Lah. 22, Cholappa Gattina Sanna and another v. Rachandra Anna Pai AIR 1920 Bom. 331 and Parkash Chand Mahajan v. Madan Theatres, Ltd. AIR 1936 Lah. 463.”

Hence, learned Executing Court was quite justified to adopt measures against the petitioner/surety.

5. Mr. Muhammad Qadir Asif Toor, Advocate for the petitioner although argued the case to the test of his ability, but failed to persuade that either the impugned unanimous orders are coram non-judice or ultra vires, rather were passed by learned lower fora while exercising its lawful authority, hence are approved and instant Constitutional Petition having no merit is dismissed in limine.

(K.Q.B.)          Petition dismissed