PAKISTAN Law and Practice Contributed by: Abdul Muqtadir Khan, Syed Absar Rahat Rizvi, Hammad Saleem and Zair Zaman Khan, Khan & Arshad
recalcitrant debtor with visible means often produces a faster settlement than a full attachment-and-sale process. Likewise, a winding-up petition against a defaulting company often paves the way for a faster settlement.
a point of law by a second appeal under Section 100, and the appellate court can grant a stay of execution under Order XLI Rule 5 pending the outcome of the appeal. A court may also stay proceedings during the pendency of such an appeal subject to provision of an appropriate security. A determination made by the executing court under Section 47 is deemed a decree, and is therefore itself open to appeal. 2.6 Unenforceable Domestic Judgments Certain decrees cannot be enforced, or can be enforced only with modification. • A decree obtained by fraud is liable to be set aside rather than executed. • A decree that is a nullity for want of jurisdiction cannot be executed, and the executing court may refuse to execute it. • A purely declaratory decree, such as a declaration under Section 42 of the Specific Relief Act, 1877 that carries no consequential relief, has no execut - able content and operates by declaration alone. • A decree for specific performance of a contract of a personal nature (for example, personal service) will not be compelled by the court. • Property that falls within the Section 60 CPC exemptions, such as a debtor’s only residential house, basic tools of trade, and a portion of salary, cannot be attached. • Execution applications are also subject to a limita - tion: the first application must ordinarily be filed within three years of the decree under Article 182 of the Limitation Act, 1908 (six years where certi - fied copy of the decree has been registered), and Section 48 CPC bars fresh applications presented more than six years after the date of the decree. A decree that is not pursued in time therefore becomes unenforceable. • Decrees against the government require a manda - tory notice period under Section 82 CPC before execution can proceed, and are subject to addi - tional procedural safeguards. 2.7 Register of Domestic Judgments Court Registers There is no single, publicly searchable national register of civil judgments or decrees in Pakistan, unlike some other jurisdictions. However, judgments, decrees
2.4 Post-Judgment Procedures for Determining Defendants’ Assets
Oral Examination Under Order XXI Rule 41 CPC Under Order XXI Rule 41 CPC, a decree-holder can apply for the judgment-debtor (or, for a company, an officer) to be orally examined in court about debts owed to them and what property or means they pos - sess to satisfy the decree. The court is empowered to make an order for the attendance and examination of such judgment-debtor, or officer or other person, and for production of any books or documents. Under Rule 41, not only the judgment-debtor but also any other person (for instance, a garnishee or mortgagee in possession) may be orally examined by the court. There is no independent state agency that traces assets on the decree-holder’s behalf, so these court-compelled disclosures, combined with land and company record searches, are the practical legal tools available. 2.5 Challenging Enforcement of Domestic Judgments Objections Before the Executing Court A judgment-debtor can raise objections directly before the executing court under Section 47 CPC, which channels most execution disputes there rather than through a fresh suit. Common grounds include: • defective service of the original suit; • the decree being void or passed without jurisdic - tion; • the decree having already been satisfied; • the attached property being exempt under Section 60 CPC (which protects, among other things, a debtor’s only dwelling house and tools of trade); or • a third party asserting ownership of attached prop -
erty under Order XXI Rule 58. Appeals and Stay of Execution
Separately, the underlying decree itself can be chal - lenged by a first appeal under Section 96 CPC, or on
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