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(a) Civil Procedure Code (V of 1908)----

---O. XXI, R. 32--File of suit lost after announcement of judgment-Execution of decree granted by Executing Court-Objection of loss of file not taken by defendant before Executing Court-Duty of Court to reconstruct record before granting execution of decree -Where execution application was filed, despite the fact that objection had not been taken specifically, by the defendants, notice of such loss, held, was to have been taken by Court and attempt ought to have been made to reconstruct record of original suit-Without such reconstruction of record, order passed on execution application for execution of decree and affirmation of such order by Appellate Court were erroneous.

Mst. Khudija Begum v. The State P L D 1971 B J 19 ; Venkatamma v. Manikkam Nayani Varu and others A I R 1915 Mad. 407 and A I R 1915 Mad. 1038 rel.

(b) Civil Procedure Code (V of 1908)--

-- O. XXI, R. 32 and S. 115-Revisional jurisdiction, exercise of--- Where order for execution of decree was granted by executing Court and affirmed by Appellate Court and file of case had been lost after, announcement of judgment, such order for execution of decree without first reconstruction of record by Court, being erroneous was set aside by High Court in revisional jurisdiction--Trial Court was ordered first to reconstruct record of original suit before execution thereof.

M. Shah for Applicants.

Muhammad Yaseen Azad for Respondent.

Date of hearing : 12th November, 1986.

This revision application is directed against the appellate judgment passed by the learned First Additional District Judge (West), Karachi dated 11-11-1985, upholding the order passed by the learned Civil Judge, Karachi dated, 22-7-1984.

2. The facts of the case, briefly, are that a Suit No. 1951/71 was filed by the respondent against the appellants for specific performance and recovery of Rs. 7,252 and also mandatory injunction. This suit was decided against the appellants, and as is alleged by the respondent, a decree had also been prepared by the learned Judge. It so happened, thereafter, that the file of the aforesaid suit got lost. However, the respondent filed an execution application before the learned Civil Judge for execution of the decree. The appellants filed objections which were dismissed by the learned Civil Judge vide order dated 22-7-1984 and execution of the decree was ordered.

3. Being aggrieved by this order the appellants preferred an appeal before the District Court, inter alia, contending that since the record of the original side Court had been lost, there was neither the judgment nor the decree in existence, on the basis of which execution could be sought by the respondent. The learned Appellate Court however, brushed aside the objections and decided the appeal against the applicants, holding, that sine the objection had not been originally taken by the applicants before the executing Court, the same could not be taken before the appellate Court, and hence this revision.

4. I have heard Mr. M. Shah, learned counsel for the applicant and Mr. Muhammad Yasin Azad learned counsel for the respondent.

5. The contention of Mr. M. Shah before this Court has been that the order passed by the learned Civil Court was a nullity in law since the same was based neither on the judgment nor the decree, since the record of the case has been lost. Reliance has been placed by the learned counsel on the case of Mst. Khudija Begum v. The State (P L D 1971 B J 19). In this case the judicial record of the case before the subordinate Court had got lost and M. A. Zullah, J. (as he then was) while hearing the appeal, made the following observations :-

"The principle thus is found to have been established in our system of law and in almost every other system of jurisprudence, that the reconstruction of lost record is within the inherent power of the authority of Court, concerned with that record, in original, appellate or supervisory capacity. Therefore, I repel the extreme contention of the learned counsel for the State that reconstruction of record is, in no case, permissible by law".

The learned Judge after referring to the relevant provisions of the West Pakistan High Court Rules further held that whenever judicial record or file etc. is found to have been seriously damaged, tampered with, destroyed, lost or misplaced, every effort should be made to, replace the missing or damaged papers from all available sources. Similar view also appears to have found favour with the Madras High Court in Venkatamma v. Manikkam Nayani Varu and others (A I R 1915 Mad. 407) as it was held therein that the Court has inherent power to construct records which have disappeared from its custody and the documents lost could be reconstructed on the evidence and affidavits adduced and filed by the parties. In another case decided by the Madras High Court and reported as A I R 1915 Mad. 1038, the learned Judge who gave the judgment, went to the extent of holding that the Additional Sessions Judge, under such circumstances, could re-write the judgment from memory.

6. There appears to be lot of force in Mr. Shah's contention. As is indicated by the facts of the instant there is no judgment or decree on record of the case, therefore, when the execution application was filed before the learned Civil Judge, despite the fact that the objection had no been specifically taken by the applicants before the learned Civil Judge, notice should still have been taken by the learned Judge himself and an attempt should have been first made by him to reconstruct the record of the original suit. But as the facts indicate, he failed to act accordingly and proceeded to pass order on the execution application, without there being any decree on the record. However, when the appellant filed appeal in the case the facts were brought to the notice of the appellate Court, but the appellate Court, it seems, failed to take notice and instead upheld the order passed by the learned Civil Judge. I think at least the appellant Court should have taken proper steps for reconstruction of the record.