1989 PLP 1073 (CLC)

‑‑‑.12(2) & XXIII, R.3‑‑Execution of decree‑‑Objections‑‑Maintain ability‑‑Jurisdiction‑‑Plea of non‑receipt of consideration for the disputed land‑‑Decree passed in terms of compromise entered into between the parties‑‑Judgment‑debtor objecting to execution of decree and jurisdiction of Court to execute same‑‑Compromise application and other record revealing no mistake‑‑Application for setting aside the decree being misconceived was dismissed by High Court in circumstances. G.A. Brohi for Applicant. Mumtaz Ahmed Sheikh for Respondents. Date of hearing: 16th February, 1988. The judgment‑debtor filed this petition under section 12(2) C . P. C . to set aside the decree passed in Suit No.361 of 1979. It has been alleged that according to the terms of compromise the respondent No.l (plaintiff in Suit No.361/1979) is entitled to 25 acres and 24 ghuntas only but not 100 acres as mentioned in the decree. It is, therefore, contended that the respondent No.l without payment of any consideration wants to get transfer of 75 acres of land of the applicant. The particulars of the land have, not been mentioned but on query Mr. Brohi Advocate for the applicant has stated that the survey numbers of these lands are mentioned in paragraphs 1 (iii) and para 5 at page 2 of the compromise deed dated 24‑7‑1985 filed with the application under Order XXIII, Rule 3 C . P. C . It is also stated that 25 acres returned to the applicant by the Land Reform Authorities which have been included in the compromise deed is unwarranted. These allegations do not make out a case for fraud or misrepresentation. The learned counsel for the applicant however contends that he relies on section 12(2) C.P.C. as the decree is without jurisdiction. In the present case the parties had filed consent application under Order XXIII, Rule 3 C.P.C. in which terms of settlement between the parties were mentioned. The compromise deed was also attached which had formed basis of the application under Order XXIII, Rule 3 C.P.C. The compromise application was signed by the parties and their Advocates and accordingly the consent decree was passed. The decree prepared by the office is exactly in the terms of application under Order XXIII, Rule 3 C.P.C. ‑ The question of jurisdiction, therefore, does not arise. Mr. Brohi the learned counsel has mainly contended that the respondent No. l by virtue of sale‑deed which is sought to be executed by the Nazir is attempting to include such properties to which he is not entitled under the compromise deed or the application under Order XXIII, Rule 3 C .P. C. The main apprehension seems to be that the respondent No.l is not entitled to 100 acres as mentioned in para. 1 of the application under Order XXIII, Rule 3 C.P.C. Mr. Mumtaz the learned counsel for the respondent has produced photo copy of the sale‑deed which is sought to be executed by the Nazir in which the entire background and history of the case has been given. It has clearly been specified that the petitioner had executed a sale‑deed on 7‑7‑1983 for 48 Acres 1 ghunta 12 sq. yds. in respect of land at Deh Thaming and it has further been stated that the petitioner/J.D. is further required to execute sale‑deed in respect of 48 acres 09 ghuntas 72 sq. yds in respect of which the price has already been paid. These two figures make a total of less than 100 acres. The learned counsel for the respondent No.l contends that after execution of this sale‑deed the respondent's decree will be satisfied. He further states that there is some mistake in the compromise application and for that purpose the respondent will make necessary application for correction and rectification. Claim for such additional land can only be considered after the decree has been amended. For the time being the respondent No.l is bound by the terms of the decree. The learned counsel for the petitioner then pointed out that in para 14 of the sale‑deed survey numbers 112(15‑36), 113 (14‑17), 109 (21‑19) and 110 (105‑18) have wrongly been mentioned which do not find place in the decree. Mr. Mumtaz Advocate admits that these survey numbers are not included in the decree and further states A that these survey numbers will be deleted from the sale‑deed before execution. The Nazir is directed to delete these four survey numbers from the sale‑deed. Considering the facts and circumstances of the case that decree is in conformity with the application under Order XXIII, Rule 3 C.P.C. the prayer for setting aside the decree is misconceived. The learned counsel for the petitioner has made grievance about the mistake in the compromise application but merely because there is an alleged mistake which does not seem to be prima facie correct does not entitle the petitioner to file an application under section 12(2) C.P.C. The application is dismissed with costs. The Nazir to proceed with the registration of the sale‑deed with amendment as ordered. M.Z.S.lA‑460/K Application dismissed.