1984 PLP 874 (CLC)

(a) Civil Procedure Code (V of 1908)‑ ‑‑S. 47 & O. XXIII, r. 3‑Compromise decree‑Execution‑Property or right forming consideration for subject‑matter of litigation as per terms of compromise, held, would be considered as subject of litigation resulting in compromise for ail intents and purposes, and such subject‑matter of consideration would not be treated as extraneous property for purpose of execution proceedings. Muhammad 1dris Mia v. Abdul Matleb Mia and others P L D 1966 Dacca 234 and Hemanta Kumari Debi v. Midnapur Zamindari Co, A I R 1919PC79ref. Nooruddin Hussain and another v. Diamond Vacuum Bottle Manufactur ing Company Ltd., Karachi and another P L D 1981 Kar. 720 and M/s. Country Products Export Ltd. v. MI s. Bawany Sugar Mills Ltd. P L D 1968 Kar. 115 rel. (b) West Pakistan Urban Rent Restriction Ordinance (VI of 1959)‑ ‑‑ S. 13 ‑ Civil Procedure Code (V of 1908), S. 47 & O. XXIII, r. 3‑Predecessors‑in‑interest of respondents delivering possession of portion of property in question to petitioner as consideration for his having relinquished his possession. from another portion which was under mortgage ‑ Agreement between petitioner and predecessors‑in‑interest of respondent about portion in question, held, cannot be treated as an independent transaction to be regarded as transaction of tenancy requiring institution of eviction applica tion under provisions of West Pakistan Urban Rent Restriction Ordinance, 1959. (c) Civil Procedure Code (V of 1908)‑ ‑‑ S. 47 & O. XXIII, r. 3 read with S. 115 ‑Revision ‑ Order of Court neither suffering from any jurisdictional defect nor from any illegality or a material irregularity‑Interference declined‑ Held, finding arrived at by a Court of competent jurisdiction on question ‑of fact or law however erroneous, cannot be called in question by invoking revisional jurisdiction of High Court. This petition for Civil Revision calls in question the order, dated 17th January, 1981 and the judgment and decree, dated 23rd September, 1981 passed respectively by the learned Civil Judge, Narowal and the learned Additional District Judge, Sialkot.

2. Muhammad Siddiq, the predecessor‑in‑interest of the respondents herein mortgaged with possession a specified portion of his shop bearing No. 7/185 situate at Railway Road, Narowal in favour of one Mohammad Anwer for a sum of Rs.5,000 for a period of five years vide mortgage deed, dated 8th May, 1967. The mortgagee in his turn rented out the mortgaged portion to Ghulam Muhammad, the present petitioner at the rate of Rs.65 p.m. After the expiry of the period of mortgage, the predecessor‑in‑interest of the respondents filed a suit for redemption of mortgage against Muhammad Anwer aforesaid and Ghulam Muhammad petitioner.

3. During the pendency of the suit, the parties came to terms and effected a compromise. According to the terms of the compromise, the mortgagee received his mortgage debt while the petitioner also agreed to surrender the possession of the mortgaged property to the predecessor -in‑interest of the respondents in lieu of another portion of the same shop measuring eight feet in length at the rate of Rs.65 p.m. as rent. He further agreed to surrender the possession of the said other portion without any further proceedings after the expiry of a period of 3‑1/2 years. The parties and their counsel made statements before the Court in terms of the agreement and the Court passed a decree accordingly on 23rd November, 1976.

4. It appears that after the expiry of the aforesaid period of 3‑1/2 years, the petitioner failed to surrender possession of the portion in his possession and thereupon the respondents I.e. the successors‑in‑interest of Muhammad Siddiq took out execution proceedings on the basis of decree, dated 23rd November, 1976 against the petitioner for obtaining the possession of the portion in his occupation. The petitioner filed an Objection Application under section 47, C.P.C. contending that the portion in his possession was not the subject‑matter of the suit in which the decree dated 23rd November, 1976 was passed and, therefore, he could not be deprived of the possession of the portion in execution of the said decree. The learned executing Court viz. the Civil Judge, Narowal dismissed the Objection Application vide order, dated 17th January, 1981. The petitioner preferred an appeal before the learned Additional District Judge but the same also failed and was dismissed through the impugned order dated 23rd. September, 1981. Hence the present petition for Civil Revision.

5. It has been argued on behalf of the petitioner that the impugned order and judgment suffer from material irregularity inasmuch as, the portion 9f the shop from which the petitioner is sought to be dispossessed in execution of the aforesaid decree was not the subject‑matter of the suit which resulted in the said decree. It has been urged that the suit culminating into the decree, dated 23rd November, 1976 was for the redemption of a mortgage in respect of another portion of the shop which was actually mortgaged by the predecessor‑in‑interest of the respondents in favour of Muhammad Anwer who had rented out portion to the petitioner. At the time of the passing of the decree, the possession of the said portion was surrendered by the petitioner to the predecessor-in‑interest of the respondents. The portion from which the petitioner is now sought to be dispossessed was neither mortgaged by the predecessor‑in‑interest of the respondents to Mohammad Anwer nor the suit related to this portion. Reliance has been placed on Muhammad Idris Mia v. Abdul Matleb Mia and others (P L D 1966 .Dacca 234) wherein it was held: i‑The correct position is that under Order XXIII, rule 3, a compromise decree may contain matters extraneous to the suit or relating to properties other than the subject‑matter of the suit. A decree passed in accordance with a compromise petition which contains matters not related to the suit properties is not invalid ; terms which go beyond the subject‑matter of the suit may be incorporated in the decree which is passed in the suit. The decree can only be enforced by way of execution insofar as it appertains to the subject‑matter of the suit. A compromise decree care, however, be enforced in a manner other than by way of execution." Hemanta Kumari Debi v. Midnapur Zamindari Co. (AIR 1919 P C 79) has also been cited. In this case the Judicial Committee of Privy Council was pleased to observe that a perfectly proper and effectual method of carrying out the terms of section 375 would be for the decree to recite the whole of the agreement and then to conclude with an order relative to that part that was the subject of the suit, or it could introduce the agreement in a schedule to the decree ; but in either case, although the operative par! of the decree would be properly confined to the actual subject‑matter of the then existing litigation, the decree taken as a whole would include the agreement. The ratio decidendi of the aforequoted authorities would appear to be that a compromise decree under Order XXIII, rule 3, C.P.C. may include matters other than the subject‑matter of the suit resulting in the decree but the execution would be confined to the extent of the subject matter.

6. In the circumstances of the instant case, however, the portion from which dispossession of the petitioner is sought by the respondents was given to the petitioner in accordance with the terms of the compro mise by the predecessor‑in‑interest of the respondents in consideration for his (petitioner's) having relinquished the possession of the portion which was under mortgage with Muhammad Anwer but in actual posses sion of the petitioner as licensee or the tenant under Mohammad Anwer. Obviously, the relationship of mortgagee and mortgagor existed between Mohammad Anwer and the predecessor‑in‑interest of the respondents There.was no such relation between the said predecessor and the petitioner property or right forming consideration for the subject‑matter 0'j litigation as per terms of a compromise would be considered as the subject of litigation resulting in the compromise for all intents and purpose, and such subject‑matter of consideration would not be treated as of extraneous property for purposes of execution proceedings. In Nooruddir.: Hussain and another v. Diamond Vacuum Bottle Manufacturing Company Ltd., Karachi and another (P L D 1981 Kar. 720) it was held : "In the circumstances, the question whether a particular term of a compromise relates to the subject matter of the suit has to be answered as the frame of the suit, the relief claimed and the matters which arose for decision in the case on the pleadings of the parties. If the compromise relates to all those matters which fell to be decided in the case, it cannot be stated that any part of compromise was beyond the subject‑matter of the suit. Where a compromise relating to the matter outside the scope of the suit is a part of the consideration for the agreement as to matter in suit, the entire compromise as an integral whole must be recorded and decreed as relating to the suit whether they otherwise relate to the suit or not." Similarly, in M/s. Country Products Export Ltd. v. M/s. Bawany Sugar Mills Ltd. (P L D 1968 Kar. 115), it was ruled : "The words `that relates to suit' in Order XXIII, rule 3 C.P.C. are sufficiently wide to embrace the terms and conditions which constitute consideration of the compromise, and in all such cases the Court cannot refuse to record the compromise merely on the ground that certain terms are not strictly within the scope of the suit. It is not the policy of the Code of Civil Procedure to discourage compromises of litigation. The Courts are under duty to record lawful compromises and a decree based on compromise, though it includes terms which were not initially within the scope of the suit but are considerations for compromise, would, nevertheless, be the decree of the Court, and unless there is express legal prohibition, such a decree would be executable under Order XXI, C. P. C.'' The manner in which possession of the portion in question was entrusted to the petitioner by the predecessor‑in‑interest of the respondents at the rate of Rs.657 p.m. for a period of 3‑1/2 years cannot be regarded as a transaction of tenancy requiring institution of eviction application under the provisions of Urban Rent Restriction Ordinance, 1959. As already observed, as a term of compromise arrived at between the parties, the predecessor‑in‑interest of the respondents delivered possession of the portion in question to the petitioner as consideration for his having relinquished his possession from the portion which was under mortgage with Mohammad Anwer. In these circumstances, the agreement between the petitioner and the predecessor‑in‑interest of the respondents about the portion in question cannot be regarded as an independent transaction from the subject‑matter of the suit.

7. Apart from what has been held above, it may also be observed that the impugned order and judgment do not suffer from any jurisdic tional defect and it is an established proposition of law that a finding arrived at by a Court of competent jurisdiction on a question of fact or law howsoever erroneous it may be regarded, cannot be called in question by invoking the revisional jurisdiction of the High Court under section 115; C.P.C. unless such finding suffers from illegality ,or a material irregularity. No such illegality or a material irregularity has been pointed out.

8. In the light of above discussion, no exception can be taken to the findings arrived at by the learned Courts below through the impugned orders whereby they have held that in execution of the decree, dated 23rd November, 1976, the petitioner is liable to be dispossessed from the portion in dispute. The petition for Civil Revision is accordingly dismissed with no order as to costs. M. Y. H. Petition dismissed.