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Revision Application No. 113 of 1972, decided on 8th February, 1982.

‑‑S. 64 (d)‑Decree against ship‑owner‑Liability of ship's agent. For Custodies declaration under S. 64 (d) of Sea Customs Act, 1878 signed by ship's agent‑Not a statutory guarantee taken in interest of consignee nor could there be any guarantee in absence of principal debtor‑Consignee not being a party to declaration, there could be no question of same being a contract under which agent presumed to be personally bound to him under S. 230 of Contract Act, 1872‑Submission of counsel regarding liability of applicant to pay decretal amount in view of liability undertaken by them under S. 64 (d) to be answerable for discharge of all claims for damages of short delivery as may be established by owners of any goods comprising imported cargo in respect of such goods, held, in view of law and also because execution Court cannot go behind decree, not acceptable.

Sajedul Haque v. Sultan Hassan P L D 1959 Dacca 903 and Burjorjee Cowasjee & Company v. Habib Insurance Company 1 id. P L D '1975 Kar. 194 rel.

Muhammad Hanif Khan for Petitioner.

S. M. Sadiq for Respondents.

Date of hearing : 4th February, 1982.

The brief facts of the case are that respondent No. 1 filed Civil Suit No. 930 of 1968 in the Court of Small Causes Karachi for recovery of Rs. 2,265.76 against respondent No. 2 and Messrs Ameejee Valeejee and Sons. In the plaint it was. stated that Respondent No. 2 are the owners of the vessel "Paraskevi" and Messrs Ameejee Valeejee and Sons are their agents for Pakistan and had given a declaration to the Customs Collector under section 64 (d) of the Sea Customs Act. In the said suit the plaintiffs claimed the abovementioned amount as damages cost of goods short landed.

2. The learned trial Court by judgment given on 31‑8‑1970 decreed the suit against respondent No. 2 but dismissed the suit against Messrs Ameejee Valeejee and Sons on the ground that respondent No. I/plaintiff failed to show that Messrs Ameejee Valeejee and Sons were the agents of defendant No. I/present respondent No. 2.

3. After the passing of the decree as mentioned above the plaintiff moved an application for execution of the decree against the present applicants on the plea that the applicants are the agents of the judgment. debtor Vd that the decree could be executed against them in view of the declaration filed by them under section 64 of the Sea Customs Act. The applicants against whom the decree was thus sought to be executed filed their objections, where after the decree holder examined one Mr. Muhammad Abid Siddiqui a Clerk from the Customs Department. The said witness produced declaration filed by the applicants under Section 64 (d) of the Sea Customs Act. The learned Execution Court after hearing the parties' counsel by order passed on 30‑3‑1972 dismissed the objections holding that they are responsible for the payment of the decretal amount in view of the declaration filed by them under section 64 of the Sea Customs Act. Accordingly writ of attachment was ordered to be issued. Against the aforesaid order, the present revision application has been filed under section 25 of the Provincial Small Causes Court Act, 1887.

4. The learned counsel for the applicants submitted that the applicants cannot be held liable to pay any amount under the decree passed in the Civil Suit in which they were not parties and against whom there was no allegation in the plaint that they were the agents of the respondent No. 2/Defendant No. 1. The learned counsel submitted that the Executing Court could not go behind the decree and give relief to the plaintiff which was not warranted by the terms of the judgment and decree passed in the suit. Reliance was placed on the case of Sqjedul Haque v. Sultan Hassan (P L D 1959 Dacca 903). The facts of that case briefly stated are, that a decree was passed against Ust. Saleha Khatun. As the said judgment‑debtor failed to pay the outstanding .decretal amount, an application for execution of the decree against the judgment‑debtor was filed. The decree holder also filed a separate application before the Execution Court praying that Sajedul Haque who had by an agreement between himself and Mst. Saleha Khatun, the judgment‑debtor, agreed to pay the decretal dues of the decree holder, be added as judgment debtor No. 2 in the said execution case and the balance of the decretal amount be recovered from the said Sajed‑al Haque in the said execution proceedings. The learned Execution Court granted the prayer of the decree holder by bringing on record Sajedul Haque as a judgment‑debtor end ordered the decree to be executed against hint in the same way as if it had been obtained against him. The above order was challenged before the High Court where it was held that on the facts and circumst ances of the case the petitioner Sajedul Haque was not a legal representative of the judgment‑debtor in respect of the decree passed in the suit and that the decree holder could not enforce the alleged right which arose out of a contract between the judgment‑debtor and a person who was not a party to the suit. The learned counsel for the petitioner also relied upon the case of Burjor fee Cowasjee and Company v. Habib Insurance Company Ltd. (P L D 1975 Kar. 194) wherein the learned Single Judge of this Court while repelling the contention raised that the Customs declaration signed by ships agent is statutory. guarantee taken in the interest of the consignee who:4s beneficiaries may sue the agent personally under section 230 of the Contract Act, held that the declaration in terms neither a guarantee nor there can be a guarantee in the absence of a Principal debtor. It was also held that as the consignee is not a party, to the declaration there can be no question of it being a contract under which the agent is presumed to be personally bound to him under Section 230 of the Contract Act.

5. In view of the above law laid down by this Court and keeping A in view the principle that . the execution Court cannot go behind the decree the submission made by the learned counsel for the respondent No. I that the applicants are liable to pay the decretal amount in view of the liability undertaken by them under section 64 (d), Sea Customs Act to be answerable for the discharge of all claims for damages of short delivery which may be established by owners of any goods comprising imported cargo in respect of such goods, cannot be accepted.

6. For the reasons stated above this petition succeeds. The order passed against the applicants in Suit No. 930 of 1968 on 30‑3‑1972 by the learned Court of Small Causes, Karachi, is set aside. The decretal amount already deposited by the applicants (Messrs Eastern Shipping Company) shall be allowed to be withdrawn by them.

In the circumstances of the case there shall however, be no order its to costs.

K.M.A, Petition accepted,

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