P L D 2002 Lahore 268 (PLP)

(ii) addition of 15 % compulsory charges as awarded by the Hon'ble High Court through judgment dated 13‑10‑1987. Respondent's application for amendment was opposed by the petitioner judgment‑debtor who also moved an application under Order VII, rule 11, C.P.C. for rejection of the execution petition. Through order dated 18‑6‑1995, learned Senior Civil Judge, Sheikhupura allowed the amendment as above while rejecting petitioner's application under Order VII, rule 11, C. P. C.

3. Through the present revision petition, the petitioner has challenged the abovesaid order dated 18‑6‑1995 only to the extent of permitting amendment in the execution application.

4. The learned counsel for the petitioner reiterated the contentions raised before the learned Senior Civil Judge, Sheikhupura that decree of 1986 stood amended by decree dated 15‑4‑1990 to effect reduction in rate of compensation from Rs.5,000 per Marla to Rs.4,000 per Marla, in all. The emphasis of learned counsel for the petitioner was that words "in all" also include 15 % compulsory charges, same, therefore, cannot be allowed to be incorporated by way of amendment in the execution petition.

5. Learned counsel for the respondent supported the impugned order.

6. I have considered the record annexed with the revision petition and submissions of learned counsel for the parties. I am of the opinion that subsequent decree dated 30‑6‑1990 passed in respondent's suit for perpetual injunction bearing No. 130/1 of 1998, was a compromise decree to be f executed through filing of an independent execution petition in the said suit. Decree dated 22‑7‑1986 passed by learned Senior Civil Judge, Sheikhupura enhancing the rate of compensation from Rs.2,000 per Marla to Rs.5,000 per Marla, was a decree independent of decree dated 30‑6‑1990. for having been passed upon an earlier and independent reference. On acceptance of respondent's R.F.As. by this Court through judgment dated 13‑10‑1987, decretal amount stood enhanced by 15 % for compulsory acquisition charges. As the subject‑matter of decrees dated 27‑2‑1986 and 30‑6‑1990, respectively passed in two independent proceedings, was the same i.e. compulsory acquisition of land and award of compensation thereupon, therefore, question requiring resolution in the present civil revision is qua the extent and nature of effect of decree of compromise dated 15‑4‑1990, on the earlier decree dated 27‑2‑1986. I believe that the compromise dated 15‑4‑1990 and compromise decree dated 30‑6‑1990 ipso facto cannot be treated to have amended decree dated 27‑2‑1986 by merely incorporating the words in the compromise that 1986 decree shall be deemed to have been amended to the extent of compromise. In order to amend 1986 decree, parties were legally obliged to undertake necessary proceedings for seeking amendment therein through obtaining an order of the Court passing this decree. No such proceedings were undertaken and no order was obtained from the relevant Court by the parties, therefore, the consent or compromise between the parties without an appropriate order from the Court passing the decree cannot be taken to have effected any change or amendment in 1986 decree.

7. Be that as it may, parties nevertheless entered into a compromise/agreement upon the subject‑matter of 1986 decree by inter se reducing the amount of award from Rs.5,000 per Marla to Rs.4,000 per Marla by compromise dated 15‑4‑1990 which was also incorporated into the decree dated 30‑6‑1990 by the Court seized of the respondent's suit for perpetual injunction. The law is well‑settled, on the status of a compromise decree that such a decree only amounts to an agreement between the parties, superimposed by seal of the Court, where-for, superimposition of Court's seal does not make compromise decree untouchably sacred. The parties still have the option to amend the terms thereof mutually. Such facility, however, is not available in the case of a decree passed on merits by a Court of competent jurisdiction like .the 1986 decree. The parties cannot amend the same at their own option or deem the same to have been amended by their agreement. Such decrees have to be executed by .the Executing Court in terms that the same were passed. The Executing Court has no power either to amend the decree or to deem the same to have been amended by the parties without obtaining an appropriate order/judgment from the Court that passed the decree. The question, therefore, arises that is Executing Court powerless to cater for a situation where the parties entered into an agreement, relating to the subject‑matter of the decree or as to such decree's satisfaction or adjustment? The answer should be no. It will be illogical and unreasonable to shelve an Executing Court as powerless. The Legislature in its supreme wisdom has well‑provided for such eventualities and cases, in the provisions of rule 2 of Order XXI which is reproduced hereunder:‑‑ "

2. Payment out of Court to decree‑holder.‑‑‑(1) Where any money payable under a decree of any kind is paid out of Court, or the decree is otherwise adjusted in whole or in part to the satisfaction of the decree‑holder, the decree‑holder shall certify such payment or adjustment to the Court whose duty it is to execute the decree, and the Court shall record the same accordingly. (2) The judgment‑debtor also may inform the Court of such payment or adjustment, and apply to the Court to issue a notice to the decree holder to show cause, on a day to be fixed by the Court, why such payment or adjustment should not be recorded as certified; and. if after service of such notice, the decree‑holder fails to show cause why the payment or adjustment should not be recorded as certified, the Court shall record the same accordingly. (3) Any payment not made in the manner provided in rule I or any adjustment not made in writing shall not be recognized by the Court executing the decree."

8. A bare reading of the above quoted provisions show that the parties have been allowed the option to adjust their respective rights and liabilities under a decree mutually by payment or adjustment, either wholly or partly, out of Court or in the Court to terms of sub‑rule (1) of Rule 2 of Order XXI, C.P:C. In the present case, the parties entered into compromise dated 15‑4‑1990 and mutually a4fjusted part of the decree as the decree‑holder agreed to receive compensation at Rs.4,000 per Marla "in all" instead . of Rs.5,000 per Marla, as decreed thereby effecting adjustment through waiver of Rs.1,000 per Marla. This compromise was entered in decree dated 30‑6‑1990 which can at maximum be treated to be an agreement/compromise approved by the Court seized of respondent's suit for permanent injunction Owing to this compromise or approved agreement, the Executing Court enforcing 1986 decree is bound to record decree‑holder's satisfaction to the extent of Rs.1,000 and the payments earlier received to execute the decree for the balance outstanding. The decree‑holder sought amendment to incorporate the reduced rate of Rs.4,000 per Marla in the execution petition, which in view of adjustment renders immaterial the issue as to whether the requested amendment could be granted by the executing Court or not. Decree‑holder's application for amendment, being an admission of satisfaction/adjustment/waiver of part of the decretal amount, the executing Court could only execute 1986 decree at Rs.4,000 per Marla.

9. Petitioner i.e. WAPDA appears to have supported respondent decree‑holder's request for execution of 1986 decree at RsA,000 per Marla. Petitioner, also supported respondent's amendment to this extent. Grievance of the petitioner was qua the permission granted by the Civil Judge to incorporate enhanced amount of 15 % on account of compulsory charges as allowed by this Court on 13‑10‑1987. The basis of petitioner's protest was that the compromise dated 15‑4‑1990 as approved in decree dated 30‑4‑1990 also visualised adjustment or waiver of the 15 % compulsory charges as well because of the following term agreed upon by the parties:‑‑ "but now the plaintiffs have agreed to reduce the amount of compensation from Rs.5,000 per Marla to Rs.4,000 per Marla in all." The support is being claimed by the petitioner from the expression "Rs.4,000 per Marla in all". According to the learned counsel for the petitioner "in all" comprehensively includes all other charges whatsoever including 15 % compulsory charges awarded by the High Court to the petitioner. I am afraid this game of words cannot be sanctioned. The expression "in all" suffixes the. figure of "Rs.4,000" which is relatable too amount of compensation by the terms of compromise itself. Section 23(1) of the Land Acquisition Act also employs the same expression i.e. "the amount of compensation" to be awarded for the land acquired under the Act. It cannot, therefore, be attributed any other meaning , but the amount of compensation as determined under section 23(1) and awarded under section 18 by the Court. 15 % compulsory charges are awarded by the Court under section 23(2) (ibid) "in addition to the market value of the land, as above provided "being" a sum of 15 % on such market price in consideration of the compulsory nature of the acquisition". Subsection (2) of section 23 uses the expression of "a sum of 15 % of such market price", for additional award for compulsory acqdisition. There is, thus, no confusion at all that such additional sum of 15 % cannot be inter‑mixed, equated or confused with the words "the amount of compensation". Petitioner's effort to create a confusion for wriggling out of its statutory and decretal obligations to pay the additional amount of 15 % as allowed by this Court, can only be categorized as mala fide and unwarranted. Petitioner's argument is defeated by the term‑2 of compromise as well. Under the said term a specific waiver was obtained by the petitioner from the domain of "8% interest on this amount". If the parties had intended to waive/adjust the said sum of 15% of compulsory acquisition charges as well, the same would have been specifically included in the terms of compromise. Since there was no such agreement for waiver of sum of 15 % , it can neither be read into nor presumed to have been waived by compromise dated 15‑4‑1990.

10. In view thereof, I do not find any legal infirmity in the amendment allowed by the learned Executing Court through the impugned order. This petition is, therefore, dismissed with costs. H.B.T./W‑48/L Petition dismissed.