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| Special attorney & surety liability |
ضامن کی ذمہ داری اور خصوصی مختار کی قانونی حیثیت
2025 CLC 1124 — لاہور ہائی کورٹ
مقدمے کا پس منظر
ایک مقدمے میں بیوی اور نابالغ بیٹی نے شوہر کے خلاف حقِ مہر، جہیز اور نان و نفقہ کا دعویٰ کیا، جس کے نتیجے میں شوہر کے خلاف ڈگری جاری ہوئی۔ شوہر کی طرف سے ایک شخص خصوصی مختار کی حیثیت سے عدالت میں پیش ہوتا رہا۔
بعد ازاں ڈگری کی رقم ادا نہ ہونے پر خصوصی مختار کو گرفتار کرکے جیل بھیج دیا گیا۔ اس کی رہائی کے لیے درخواست گزار نے ضمانتی مچلکہ جمع کرایا۔ بعد میں درخواست گزار کی اپنی جائیداد کو ڈگری کی رقم کی وصولی کے لیے منسلک کرکے نیلامی پر لگا دیا گیا۔
لاہور ہائی کورٹ نے قرار دیا۔
لاہور ہائی کورٹ نے قرار دیا کہ خصوصی مختار صرف اپنے موکل کی نمائندگی کرتا ہے اور محض اس حیثیت سے وہ ڈگری کی رقم ادا کرنے کا ذمہ دار نہیں بنتا۔
عدالت نے واضح کیا کہ جب خصوصی مختار کے خلاف کوئی ڈگری جاری نہیں ہوئی اور وہ مقدمے میں ذاتی حیثیت سے فریق بھی نہیں تھا تو اس کی گرفتاری اور اسے جیل بھیجنے کی کارروائی قانون کے مطابق نہیں تھی۔
ضامن کی ذمہ داری
ہائی کورٹ نے قرار دیا کہ ضامن کی ذمہ داری معاہدہ قانون کی دفعہ 128 کے تحت طے ہوتی ہے اور ضامن اسی حد تک ذمہ دار ہوتا ہے جس حد تک اس نے قانونی طور پر ضمانت دی ہو۔
لیکن موجودہ مقدمے میں خصوصی مختار کی رہائی کے لیے ضمانت لینا ہی ضروری نہیں تھا۔ اس لیے ایسی ضمانت کی بنیاد پر درخواست گزار کی جائیداد کو ڈگری کی وصولی کے لیے نیلام نہیں کیا جا سکتا تھا۔
خصوصی مختار اور ضامن میں فرق
عدالت نے واضح کیا کہ خصوصی مختار کا کام اپنے موکل کی طرف سے عدالت میں پیش ہونا، درخواستیں دینا اور مقدمے میں ضروری کارروائی کرنا ہے۔ وہ صرف خصوصی مختار ہونے کی وجہ سے موکل کے قرض یا ڈگری کا ذمہ دار نہیں بنتا۔
جبکہ ضامن کی ذمہ داری اس ضمانت کے مطابق طے ہوتی ہے جو اس نے قانون کے تحت قبول کی ہو۔
فیصلہ
لاہور ہائی کورٹ نے درخواست منظور کرتے ہوئے ماتحت عدالتوں کے احکامات ختم کر دیے اور درخواست گزار کی جائیداد کی نیلامی روک دی۔
عدالت نے قرار دیا کہ ڈگری کی وصولی اصل ذمہ دار یعنی ڈگری کے خلاف فریق سے قانون کے مطابق کی جائے گی، کسی شخص کو محض خصوصی مختار ہونے کی وجہ سے اس کا ذمہ دار نہیں بنایا جا سکتا۔
حوالہ
Muhammad Naeem v. Additional District Judge, Gujranwala and others, 2025 CLC 1124 (Lahore)
Must read judgment.
2025 CLC 1124
[Lahore]
Before Abid Aziz Sheikh, J
MUHAMMAD NAEEM ---Petitioner
Versus
ADDITIONAL DISTRICT JUDGE, Gujranwala and others ---Respondents
Writ Petition No. 65675 of 2021. heard on 25th November, 2024.
(a) Civil Procedure Code (V of 1908)---
tya -O. II, Rr. 1 & 2 & S. 145-Contract Act (IX of 1872), S. 128-Constitution of Pakistan, Art. 199---Family suit for dissolution of marriage, recovery of dower, dowry articles and maintenance allowance-Decree passed against judgment-debtor-Execution initiated Attachment of property---Validity--- 'Surety' and, 'Special Attorney---Legal distinction--Scope of surety's liability---Execution of decree-Scope Special Attorney appeared on behalf of the judgment-debtor under a Special Power of Attorney-On failure to satisfy the decree, the Special Attorney was ordered to be sent to civil prison-Petitioner furnished a surety hond for release of the Special Attorney---Subsequently, the immov immovable property of the petitioner mentioned in the surety bond was attached and put to auct auction for non-satisfaction of the decree-Objection petition filed by the petitioner was dismissed by the Executing and Appellate courts---Held: The Special Attorney on behalf of judgment debtor was neither impleaded as defendant in the suit nor the suit was decreed against him rather he appeared in the Court only in the capacity of Special Attorney on behalf of judgment-debtor-In absence of any decree against the Special Attorney or specific clause to this effect in Special Power-of-Attorney, the Executing Court could satisfy the decree only against judgment debtor but not against Special Attorney, who never appeared in suit in his personal capacity but only as Special Attorney of the judgment-debtor-In these circumstances, order for arrest of Special Attorney and sending him to civil prison for execution of decree was not warranted in law Consequently, the surety bond by petitioner for release of Special Attorney was also neither required nor enforceable---No doubt the judgment debtor was bound to satisfy the decree either himself or through the attorney, however, in the present case it was not shown from the Special Power of Attorney that judgment debtor required Special Attorney to burden the liability for satisfaction of decree-There was no doubt that Special Attorney was not liable for execution of decree, consequently, the surety bond executed by petitioner for release of Special Attorney could not be made basis to attach his immoveable property for satisfaction of decree-Though the surety bond was also on behalf of judgment debtor besides the Special Attorney, however, when petitioner was not required in first place to execute the surety bond for release of Special Attorney, then whole superstructure on the basis of illegal detention order would crumble down and petitioner's property could not be auctioned property co merely because he mentioned the name of judgment debtor in his surety bond, which was not required to be executed in the first instance---Writ petition was allowed.
Muhammad Aslam v. Ayyan Ghazanffar and 2 others PLD 2012 Lah. 392; Muhammad Nawazish Ali v. Family Judge and others 2021 CLC 1841; Muhammad Mohsin Fawad v. Hina Tayyaba Khalil and another 2018 YLR 2199 and Muhammad Pervez v. Mst. Nabila Yasmeen and 2 others 2004 SCMR 1352 ref.
(b) Civil Procedure Code (V of 1908)...
S. 145 & O.II, Rr. 1 & 2-Contract Contract Act (IX of 1872), S. 128-Recognized agent---Scope of authority-Meaning of terms "Appearance", "Application", and "Act" Scope and applicability of C.P.C. principles. nciples in Family Matters Plain reading of of t Rule 1 of Order III of the C.P.C. shows that a recognized agent can appear, file applications or act in or to any court on behalf of any party: R. 2 of O. III of the C.P.C. refers to a class of persons who could be treated as recognized agents of parties, which include a person holding power-of-attorney authorizing him to make such appearance, application and act on behalf of a party---The words "appearance", "application" and "act" used in Rr. 1 and 2 ibid are not defined therein---Applying ordinary meaning to these words the word "appear" means to be present and to represent the party at various stages of litigation--The words "application" or "act" mean necessary steps, which can be taken on behalf of a party in the Court or in the offices of the Court in the course of litigation- Thus the recognized agent or Special Attorney is entitled to appear, file application and act for a party but is not liable for satisfaction of the decree passed against the judgment debtor; whereas a "surety" is governed under S. 128 of the Contract Act, 1872 and is enforceable for performance of any decree or any part thereof under S. 145, C.P.C.--Though C.P.C. does not strictly apply in family matters but its principles are applicable-Special Attorney will will only appear on behalf of a person and will not be liable as a surety unless he executes surety bond on behalf of a judgment debtor for satisfaction of decree Writ petition was allowed by the High Court and impugned orders were set aside being without lawful authority and of no legal effect.
(h) Contract Act (IX of 1872)---
-S. 128-Scope of surety's liability-A surety is governed under S. 128 of the Contract Act, 1872 and is liable to the extent expressly agreed---In this case, where the surety bond itself was not legally warranted, the petitioner (surety) could not be made liable-Writ petition allowed and impugned orders were set aside being without lawful authority and of no legal effect.
Syed Muhammad Usman Hadi Bukhari for Petitioner.
Ms. Areesha Sajid for Respondents Nos. 3 and 4.
Date of hearing: 25th November, 2024.
JUDGMENT
ABID AZIZ SHEIKH, J.---Through this Constitutional Petition the petitioner has challenged the impugned orders dated 01.03.2021, 13.09.2021 and 18.09.2021 (impugned orders) passed by the Executing Court and the Appellate Court, whereby his Objection Petition against the attachment and auction of his immovable property was dismissed and the auction schedule was announced.
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Relevant facts are that contesting-respondents Nos. 3 and 4 (wife and minor-daughter contesting respondents) filed a family Suit for Dissolution of Marriage, Recovery of Dower, Dowry Articles and Maintenance Allowance (Suit) against respondent No. 5/defendant (Muhammad Akbar). Respondent No.6 (Abdul Aziz) appeared on behalf of the defendant through Special Power-of-Attorney/Exh.D2 (hereinafter referred to as Special Attorney). He contested the Suit by filing written-statement; however, the Suit was decreed on 06.05.2015 against respondent No.5. During execution, the said decree could not be satisfied against respondent No. 5/Judgment-debtor (hereinafter referred to as Judgment-debtor), resultantly, the Special Attorney was sent to Civil Prison. The Petitioner stood Surety on behalf of Special Attorney by tendering his Surety Bond dated 31.05.2019 (Surety Bond). Subsequently, Petitioner's immovable property, mentioned on the Surety Bond, was attached on account of failure to satisfy the decree by the Judgment-debtor and the Special Attorney. The Petitioner filed Objection Petition, which was however dismissed through the impugned order dated 01.03.2021, which was assailed by the Petitioner in Appeal and his Appeal was also declined on 13.09.2024, thereafter, Petitioner's attached immovable property was put to auction while announcing the auction schedule vide impugned order 18.09.2021; hence, this Constitutional Petition.
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Learned counsel for the Petitioner submits that the decree was passed against the Judgment-debtor and not against the Special Attorney, hence; since the Petitioner stood Surety on behalf of the Special Attorney, his attached immovable property could not be put to auction for satisfaction of the decree.
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Learned counsel for contesting-respondents, on the other hand, supported the impugned orders and submits that the Petitioner executed Surety Bond on behalf of the Judgment-debtor and Special Attorney, therefore, his attached immovable property was lawfully put to a put to auction for failure to satisfy the decree. She further submits that bmits that because respondents Nos. 5 and 6 have common interest with the Petitioner and they are intentionally delaying this matter, therefore, this case may be decided on merits after hearing the contesting-respondents.
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Arguments heard. Perusal of the record transpires that the Suit was filed by contesting-respondents against respondent No.5, which was decreed by the Trial Court on 06.05.2015. The Special Attorney on behalf of respondent No. 5 was neither impleaded as defendant in the Suit nor the Suit was decreed against him, rather he appeared in the Court only in the capacity of Special Attorney on behalf of the Judgment-debtor. In absence of any decree against the Special Attorney or specific clause to this effect in Special Power-of-attorney (Exh.D2), the Executing Court could satisfy the decree only against the Judgment-debtor but not against the Special Attorney, who never appeared in the Suit in his personal capacity but only as Special Attorney of the Judgment-debtor. In the circumstances, order for arrest of the Special Attorney and sending him in Civil Prison for execution of the decree was not warranted in law. Consequently, the Surety Bond by the petitioner for release of Special Attorney was also neither required nor enforceable.
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The same view was same was also expressed by this Court in "Muhammad Aslam v. Ayyan Ghazanffar and 2 others" (PLD 2012 Lahore 392), where it is held as under:-
"12. Whenever the question of interpretation of Power of Attorney is considered, it is now a consensus on the point that deed of power of attorney is strictly to and a power has not been assigned in specific terms cannot presumed to have been given by the principal to the attorney. The attorney in this case when extended the power to defend the suit on behalf any liability to the effect that in case any possible decree defendantjudgment debtor, the same can equally be executable against the attorney. Even in Muhammad Pervez's case (Supra)
have been given by the principal to the attorney. The attorney in this case when extended the power to defend the suit on behalf of the defendant was never provided with any liability to the effect that in case of any possible decree against defendant/judgment debtor, the same can equally be executable against the attorney. Even in Muhammad Pervez's case (Supra) the Hon ble Supreme Court of Pakistan is of the view that it is the judgment debtor Fazal-e-Haq who is bound to satisfy the decree either hil decree either himself or through attorney. Keeping in view such findings of the Hon ble Supreme Court of himself or through attor orney. Keeping in view such findings of the Hon'ble Supreme Court of Pakistan, the attorney in his independent capacity cannot booked satisfaction of which was never against him."
Same opinion was expressed by this Court in "Muhammad Nawazish Ali v. Family Judge and others" (2021 CLC 1841) in ving words: following
Respondent No.3 could be realized from the Petitioner as he was pursuing the cases on behalf of Sarfraz Hussain. This "27. The counsel for Respondents Nos. 2 and 3 half-heartedly attempted to argue that the decretal amount payable to contention deserves a short shrift. The Petitioner is the special attorney of Sarfraz Hussain and never assumed any liability on his behalf He neither posted surety bond nor otherwise gave an undertaking to the Court at any point oftime for payment of any money.'
The Islamabad High Court in "Muhammad Mohsin Fawad v. Hina Tayyaba Khalil and another' (2018 YLR 2199) reiterated this view as under:-
"25. The fact remains that the petitioner is not the judgment debtor. The petitioner was not a party the suit instituted by the respondents. The petitioner happened to be pursuing the case on behalf of Dr. Qureshi before the Courts. It is not disputed that the Plot was owned by the petitioner and not by Dr. Qureshi. Therefore, the decree dated 03.10.2014 could not be satisfied by attaching or selling the property which belonged to the petitioner. The said decree is to executed against the judgment debtor ie., Dr. Qureshi, and none other."
No doubt the Hon'ble Supreme Court in "Muhammad Pervez v. Mst. Nabila Yasmeen and 2 others (2004 SCMR 1352) held that judgment debtor is bound to satisfy the decree either himself or through the attorney, however, in the present case it is not shown. from the Special Power-of-Attorney (Exh.D2) that the Judgment-debtor required the Special Attorney to burden the liability for satisfaction of decree. This legal position is also explained by this Court in the case of Muhammad Aslam, supra.
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From the above case law, there is no doubt that the Special Attorney was not liable for execution of the decree, consequently, the Surety Bond Bond executed executed by by the the Petitioner I for release of the Special Attorney cannot be made basis to attach his immoveable property for the satisfaction of decree. Though the Surety Bond is also on behalf of the Judgment-debtor besides the Special Attorney, however, when the Petitioner was not required at first place to execute the Surety Bond for release of Special Attorney, then the whole superstructure on the basis of illegal detention order will crumble down and Petitioner's property cannot be auctioned merely because he mentioned the name of Judgment-debtor in his Surety Bond, which was not required to be executed at the first instance.
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There is a clear distinction between "surety" and "special- attorney"; Rules 1 and 2 of Order III of the Code of Civil Procedure, 1908 (C.P.C.) deal with the Special Attorney. For convenience Rules 1 and 2 of Order III of the C.P.C. are reproduced hereunder:-
"1. Appearances, etc., may be in person, by recognized agent or by pleader. Any appearance, application or act in or to any Court, required or authorized by law to be made or done by a party in such Court, may, except where otherwise expressly provided by any law for the time being in force, be made or done by the party in person, or by his recognized agent, or by a pleader (appearing, applying or acting, as the case may be, on his behalf:
Provided that any such appearance shall, if the Court so directs, be made by the party in person.
- Recognized Agents. The recognized agents of parties by whom such appearances, applications and acts may be made or done are
(a) persons holding powers-of-attorney, authorizing them to make and do such appearances, applications and acts on behalf of such parties;
(b) persons ns carrying carr on trade or business for and in names of parties not resident within the local limits of the jurisdiction of the Court within which limits the appearance, application or act is made or done, in matters connected with such trade or business only, where no other agent is expressly authorized to make and do such appearances, applications and acts.'
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Plain reading of Rule 1 of Order III of the C.P.C. shows that a recognized agent can appear, file applications or act in or to any Court on behalf of any party; Rule 2 of Order III of the C.P.C. refers to a class of persons who could be treated as recognized agents of parties, which include a person holding power-of-attorney authorizing him to make and do such appearance, application and and act on of a party. The words "appearance", "application" and used in Rules 1 and 2 ibid not defined therein. However, applying ordinary meaning to these words the word "appear" means to be present and to represent the party at various stages of litigation. The words "application" or "act" mean necessary steps, which can be taken on behalf of a party in the Court or in the offices of the Court in the course of litigation. Thus, the recognized agent or Special Attorney is entitled to appear, file application and act for a party but not liable for satisfaction of the decree passed against the judgment-debtor; whereas a "surety" is governed under Section 128 of the Contract Act, 1872 (Act) and enforceable for performance of any decree or any part thereof under Section 145, C.P.C. Though C.P.C. does not strictly apply in family matters but its principles are applicable.
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From the above legal position, it is evident that the Special Attorney will only appear on behalf of a person and will not be liable as a surety unless he executes surety bond on behalf of a judgment-debtor for the satisfaction of decree.
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In view of above discussion, this Writ Petition is allowed and the impugned orders are set aside being without lawful authority. and of no legal effect. However, this judgment will not preclude the Executing Court to proceed against the Judgment-debtor through all modes available under the law for satisfaction of the decree. UN/M-20/L Petition allowed.