1989 PLP 1017 (CLC)

SAJJAD ALI SHAH, J.‑‑In this High Court Appeal is impugned Judgment dated 30‑3‑1980 passed by learned Single Judge, whereby preliminary decree is passed to the effect that a sum of Rs.2,54,243.21 is due and payable to the plaintiff with 9$ simple interest thereon from the date of the suit and costs. Briefly stated the relevant facts giving rise to this appeal are that National Bank of Pakistan ailed a suit for recovery of Rs.2,54,243.21 under Order 34, C.P.C. against five persons who are partners in the partnership firm, who took loan from the Bank under an agreement dated 26‑6‑1967. Limit of cash credit was then enhanced. Prayer was made in the plaint for declaration that mortgaged property is charged to the Plaintiff's dues with future interest and for decree for sale of mortgaged property. It was also prayed that the defendants are jointly and severally liable to pay the amounts due with interest. Defendants contested the suit and as many as seven issues were framed. Subsequently preliminary decree was passed as stated above against which defendants in the suit filed appeal which was admitted by Division Bench of the High Court vide order dated 31‑8‑1980. Appeal was admitted on the ground, inter alia that in the impugned judgment there is observation to the effect that Mr. Mansoorul Arfeen, learned counsel for the plaintiff in the suit had agreed before the learned Single Judge in the suit proceedings that if there was any calculation error in the statement of account and if, that error is substantiated by defendants, he would readily agree to have it rectified. During the hearing of appeal before us Mr. Abdur Rauf counsel for the appellant submitted that he has very short point to argue which is to the effect that most important document is statement of account Exh.5/54, which is basis of the suit and there are calculation errors in it. Mr. Mansoorul Arfeen had undertaken rectification if such errors were discovered and substantiated. It was suggested by Mr. Abdur Rauf that either National Bank of Pakistan be directed to re-verify statement of account Exh.5/54 in presence of appellants and their counsel so that rectification be made in all calculation errors if " the same are discovered and substantiated. If this suggestion is not acceptable then second suggestion made is that Nazir of the High Court be appointed as Commissioner and he be directed to scrutinise the statement of accounts in presence of the parties and their counsel to discover error‑s so that they should be rectified. Mr. Mansoorul Arfeen counsel for the respondent submitted that High Court Appeal under consideration now is against preliminary decree, which has been merged into final decree and against the final decree no appeal is filed. He has further pointed out that during the pendency of appeal in the High Court proceedings were going on before the learned Single Judge as the appeal was against preliminary decree and the parties arrived at compromise before the learned Single Judge and in the compromise defendants in the suit accepted their liability without any reservation on the basis of which final decree is passed. In the circumstances since no appeal is filed against the final decree, appeal against preliminary decree has become infructuous and undertaking given by the counsel for rectification of errors in the statement of accounts also gets absorbed into compromise which is accepted on the basis of which final decree is passed. It is C also noteworthy that in the compromise in writing there is no mention of the fact about undertaking of Mr. Mansoorul Arfeen during the pendency of appeal against preliminary decree about rectification of mistakes in the statement of account if they are discovered and substantiated. This clearly shows that the intention of the parties was that compromise was arrived at between the parties without going into the question of mistakes in the statement of account or their subsequent rectification. Since compromise has put seal of finality on the dispute between the parties on the basis of which final decree is passed against which no appeal is filed, we dismiss this appeal one the grounds that it has become infructuous as well as there is no merit in it. M.Y.H./S‑276/K Appeal dismissed.