1983S83 (PLP)

S. A. NUSRAT, J.-This appeal, by special leave of this Court, has been brought to challenge the judgment and order dated 28-7-1977 passed in Execution proceedings by a learned Company Judge and appellate judgment arising therefrom dated 29-1-1978 passed by a learned Division Bench of the Peshawar High Court, Peshawar. 2. This case has a chequered history and has been brought to this Court in the fourth round of litigation.. The appellant No. 1 is a public limited company which was incorporated in 1938 under the Companies Act, 1913 with small holding of preferential shares of Rs. 2 lacs by the Provincial Government, which involves no Government control in the internal management of the Company. The appellant No 2 was appointed Managing Director of the Company and continued to hold the said position up to January 15, 1970 - when on the promulgation of the Companies (Managing Agency and Election of Directors) Order, 1972 (President's Order No. 2 of 1972) (hereinalter referred to as . President's Order), he ceased to hold the said office. He was again appointed Managing Director of the Company on the same terms and conditions with effect from 24-1-1972 after the promulgation of President's Order. By resolution of the Board of Directors dated 10-3-1972, the number of the Directors of. the Company was increased to nine and in -a general meeting of the shareholders held on 31-3-1972, the appellants Nos. 2 to 6, and respondents Nos. 1 and 3, alongwith Fida 1V4uhammad Khan and Ddst Muhammad Khan Sherpao were elected as Directors. 3. On April 15, 1972, the Board of Directors appointed Taj Muhammad Khanzada as the Resident Director, Mr. Salahuddin.Khan as Chief Executive and Mr. Fida Muhammad Khan, as. Chairman for a period of three years with effect from 15-4-1972. 4, In an extraordinary meeting of the, shareholders which was held on 15-6-1972, consequent upon the death of te Chairman Fida Muhammad Khan, the decisions taken by the Board of Directors on 15-4-1972 were annulled on the assumption that the appointment of directors made on 31-3-1972 was not in accordance with the President's Order and Mr. Taj Muhammad Khanzada was appointed as Managing Director/Chief Executive, Saadullah Khan as Chairman, Mr. Abdul Hamid was taken as a Director in place of his father Fida Muhammad Khan and Mr. Sarwar Jan Khan, Ghulam Hyder Khan and Muhammad Ayub Khanzada were elected as Directors. The respondents, however, could not be returned as Directors. 5. Tae respondents Nos. I and 2 and Dost Muhammad Khan Sherpao, who is not a party to the proceedings, filed Writ Petition No. 116 of 1972 in the Peshawar High Court challenging the decisions taken in the extraordinary meeting of the shareholders dated 15-6-1972. The said writ petition was dismissed in limine on 13-12-1972 on the view taken by the High Court that the Frontier Sugar Mills and Distillery Limited was not a person performing funbtionb in connection with the affairs of the Province and, accordingly 'not amenable to issuance of a writ under clause (2) (a) (i) of Article 201 of the 1972 Interim Constitution, which was then in force. 6. Aggrieved by the said judgment, the respondents No. 1 and others filed appeals by leave of this Court, being Civil Appeals Nos. 7-P and 8-P of 1974, which were decided. on 11-4-1975 as per judgment recorded as Salahuddin v. Frontier Sugar Mills and Distillery Limited (1). By the said judgment it was held that the directors appointed on 31-3-1972 were validly elected and the consequent decisions of the Board of Directors taken on 15-4-1972 were confirmed. By virtue of said decision, the nine Directors appointed on 31-3-1972 regained their ofces. Thereafter, a meeting of the' Board of Directors was held on 21-4-1975 and Taj Muhammad Khan was appointed as Chairman for three years and was allowed same benefits as were available to him prior to 24-1-1972. 7. In June, 1975, Salahuddin Khan was dismissed from the post of Chief Executive. Sairab Hayat Khan, respondent No. 3, filed Writ Petition No. 475 of 1975 on 9-5-1975 in the Peshawar High Court, Peshawar, praying that he may be declared to have been validly elected Chairman as against Taj Muhammad Khanzada, the person named therein as respondents Nos. 2 to 5 .be declared as disqualified, and, the proceedings of the meeting on 21-4-1975, 26-4-1975, 29-4-1975 and 3-5-1975 be declared void. This writ petition was disposed of on 16-3-1976 on the basis of a compromise arrived at in the Governor House on 4-1-1976 and confirmed by the Board of Directors on 7-1-1976. According to the terms of the said compromise, Jehanzeb was co-opted as Director ; Sairab Hayat Khan resigned from Chairmanship and. was appointed as General Manager ; Salahuddin Khan was appointed as Chief Executive ; Taj Muhammad Khanzada was appointed as Chairman ; and Abdul Hamid Khan was also co-opted as Director. 8. On 5-5-1976, Salahuddin Khan was suspended from the post of Chief Executive and Sairab Hayat Khan was removed from the post of General Manager by the Board of Directors, whereupon Salahuddin Khan alone filed Writ Petition No. 109 of 1976 on 24-5-1976, not against the decision of his suspension from the post of Chief Executive, but challenging the authority of the present. appellants Nos. 2 to 6 to hold offices which they were holding and taking of various actions as such. This vvrit petition was dismissed on (1)PLD1975SC24,I 16-7-1976. Salahuddin Khan being aggrieved by the said order of the High Court filed Civil Appeal No. 81 of 1976 in this Court which was disposed of on 24-11-1976 (hereinafter referred to as the consent order) on the basis of a compromise in the following terms : "(1) Both the parties accept that the agreement, dated 4th January, 1976, arrived at in a meeting held at the Governor's House, Peshawar and later incorporated in the minutes of the Directors' meeting held on the 7th January, 1976, is binding on the parties ; (2) In accordance with the aforementioned agreement, the following shall continue as Directors of the respondent-Company ~ (1) Tai Muhammad Khanzada (2) Salahuddin Khan (3) Sairab Hayat Khan (4) Dost Muhammad Khan _ (5) Saadullah Khan .;: (6) Asad Khanzada (7) Begum S. Khanzada - (8) Abdul Hameed Khan _ (9) Muhammad Yaqoob Khan (10) Major.-Gea. (Retd.) Jebanzeb Khan These directors shall hold office until 31st January, 1978, unless they or any of them was sooner removed or ceases to hold office in accordance with law. (3) The respondents (therein) undertake to withdraw the orders dated 5-5-1976 and 16-8-1976 by which the appellant (Salabuddin Khan) was suspended and later removed from the office of the Chief Executive of the respondent-Company. A resolution to this effect will be passed within a week. (4) The appellant (therein) shall continue to hold office of the Chief Executive of the respondent-Company till 31st January, 1978 unless sooner removed or he ceases to hold ofce fn accordance with law. He will perform his duties and functions as Chief Executive of the Company in accordance with law and the decisions taken by the Board of Directors in accordance with law. (5) The books of the Company shall be returned to the registered office of the Company by the appellant and they shall not be removed from there except in accordance with law." 9. The orders of suspension and removal of the first respondent dated 5-5-1976 and 16-8-1976 respectively were withdrawn by the appellants in terms of the above order, and Salahuddin Khan assumed his duties as Chief Executive of the Company with effect from 7-12-1976. Respondent Salahuddin Khan, however, felt that although he was re-instated as such but he was not allowed to perform his functions or to discharge his duties appurtenant to the office of the Chief Executive effectively. He, therefore, filed a contempt application, Civil Miscellaneous No. 5 of 1977, in this Court against the appellant No. 2 herein on 16-2-1977 listing . a number of instances to show that the latter had committed wilful breach of the undertakings given by him as per aforesaid consent order. The allegations made in the application were denied by the appellant No. 2 in his written statement. The two main grievances of the first respondents, as noticed by this Court, were : (a) That he was not allowed to function effectively as the Chief Executive of the Company, and the appellant No. 2 encouraged the subordinate officials of the Company to disregard his orders from time to time, for running the affairs of the Company ; and (b) That the appellant No. 2 had refused to vacate the residence occupied by him in the premises of the Company for the purpose of converting it into the Director's Guest House as previously agreed. Considering that the controversy raised in the application could not be gone into without examination of facts and documents, the application was dismissed on 11-4-1977 with the observation that it was more appropriate if such matters were agitated by the first respondent before "the learned Company Judge in the Peshawar High Court, who may issue necessary direction for the implementation of the mutual settlement between the parties as embodied in the order of this Court" dated 24-11-1976, and .it was left to the first respondent to agitate the matter before the High Court. 10. The respondents thereafter filed an application under Order X, rule 10 of the Pakistan Supreme Court Rules read with Order XLV, rule 15, sections 36, 37, 38, 42 and Order XXI, rule 10 read with section 151 of the Civil Proceedure Code for the'execution/implementation of the consent order dated 24-11-1976. In para. 7 of the application it was stated that, "after the pronouncement of the judgment by the Supreme Court of Pakistan on 24th November, 1976 petitioner No. 1 (Mr. Salabuddin Khan) was formally reinstated as the Chief Executive of the Company. He was, however, not allowed to perform his functions or discharge his duties appurtenant to the office of the Chief Executive. He passed a number of office orders which were duly communicated to the officials of the Company including its Secretary, but each one of them was ignored and none of them was complied with. The grievance of the second respondent was that according to the agreement, dated 4-1-1976 he was appointed as Director, but he has since been removed through the decision taken in a meeting of the Board of Directors held on 11-4-1977, while it was stated by the respondent No. 3 that he was not allowed to function as General Manager of the Company. It was further stated that no salary, allowances, etc., of any kind were paid to any of them. 111. The application was opposed by the appellants who in their written statement stated that the application was neither competent under the law under which it was made, nor on the basis of the facts exiting at the time of the filing of the application. It was asserted that the consent order of this Court had been duly complied with. The first respondent was, however, removed subsequently from the office - of the Chief Executive by the Board of Directors on 31-3-1977 which majority decision of the Board of Directors was confirmed in the general meeting of the shareholders and as such the removal of the said respondent from the office of the Chief Executive had no nexus with .the consent order which bad already been complied with. His'- removal on. 31-3-1977 in any case, was a fresh cause of action, relief. in rest whereof, could .not be obtained on the strength of the consent order. As% gards, the second respondent, it was stated that he was removed from the office of the Director on 11-4-1977 on, the ground that his cooption was in contravention of Article 11: of the Presidential Order of 1972. The third respondent bad already been removed from the office of the General Manager on 5-5-1976, long before the passing of the consent order. It was urged that in any case the respondent No. 2 and had no locus standi to be a party to the execution proceedings based on the consent order because nether of them was a party in Civil Appeal No. 81 of 1976. It was further asserted that in any case relief in the nature of re-instatement could not be claimed in the execution proceedings. Lastly it was contended that the judgment/order of this Court dated 24-11-1976 was of a declaratory nature and in any case did not preclude the appellants from taking any action against the respondents on fresh grounds. 12. The learned Company Judge by his order dated 28-7-1977 allowed the application only in the case of respondent Salahuddin Khan, with the result that the order of his removal by the Board of Directors of the Company was set aside and it was directed that he would continue to function as the Chief Executive of the Company till January 31, 1978 unless sooner removed or ceased ,to hold office in accordance with law. It was conceded before the learned Judge that the respondents Nos. 2 and 3 were not party to in any capacity either in the Petition No. 109 of 1976 before the High Court or in Civil Appeal No. 81 of 1976 before this Court nor any of them was a party in Civil Miscellaneous Petition No. 5 of 1977 brought to this Court by the first respondent. The learned Judge, in these circumstances, observed that none of them had even cared to apply to be made party in any of the said proceedings and, therefore, all of them were strangers and had no locus standi to seek any relief through execution proceedings, and thus no relief was granted to them. 13. Aggrieved by the above judgment of the learned Company Judge, the respondent filed an 1-ntra-Court Appeal whereas the appellants filed cross-objections against it. The said appeal was heard by a learned Division Bench of the High Court on 29th January, 1978, whereby the cross-objections of the appellants were dismissed and the appeal of the respondents was allowed granting them following reliefs : (i) The Company shall ,proceed to recognise Salahuddin Khan as Chief. Executive of the Company ; Sairab Hayat Khan as General Manager and Maj.-Gen. (Retd.) Jehanzeb Khan as Director, who were to be installed in their respective offices with immediate effect. (ii) Salahuddin Khan shall continue to hold the office of Chief Executive of the Company and shall perform his duties and functions as such in _ accordance with law. ' (iii) The salaries of Salahuddin. Khan as Chief Executive of the Company fro riz 1-5-1976 to 31-1-1978 and also up to the date when he would, relinquish the charge according to law shall be deposited in this Court at the rate at which it was fixed when he was elected as Chief Executive of the Company. (iv) No hinderance shall be placed in the implementation of this order either by the respondents or any body else. The officials of the Company shall pay due respect to and obey the order-of the Supreme Court as regards the recognition of Salahuddin Khan as Chief Executive of the Company. (v) In so far as the tenure of the offices of the District and Chief ExecutiWe is concerned, it was held that. the period for which the tenure of office bas been interrupted shall not be counted. 14. On appeal from the above=mentioned judgment of- the learned High Court dated 29-1-1978, leave was granted by this Court on 27-7-1978 to consider the following questions : (1) that respondents Maj.-Gen. (Retd.) Jehanzeb Khan and Sairab Hayat Khan were not parties to the proceedings in this Court which were concluded by the order, dated November 24, 1976, and consequently they had no locus standi to claim any relief from the High Court in the execution proceedings covered by Execution Application No. 132/1977 ; (2) that in the order of this Court, dated November 24, 1976, there was -no mention of the names of respondents Jehanzeb Khan and Sairab Hayat Khan and sb the High Court had no jurisdiction to grant them any relief whatever ; (3) that the said order of this Court was essentially of a declaratory nature and thus not executable in any manner, much less through an order in the nature of mandamus which the High Court has erroneously issued in this case ; (4) that the High Court has erred to allow to respondent Salahuddin Khan his salary at a fixed rate, for in the type of proceedings of wcich the High Court was seized no such order could be properly passed ; (5).that the High Court has failed to notice that the Board of Directors of the Company had removed Salahuddin Khan as Chief Executive on the basis of a new cause of action to which no exception -could be taken even under the order of this Court dated November 24, 1976 ; and (6) that the High Court has erred to extend in favour of Salabuddin Khan the period beyond 31-1-1978 which a view to bridging the period during which his tenure as Chief Executive had been interrupted, as the said date viz., 31-1-1978 had been agreed to by the parties herein and the same could not be extended without their consent. ' In fact the only remedy, if any, of Salahuddin Khan would be a suit . for damages and not to grant to him the relief in species. 15. We have heard Mr. S. M. Zafar, learned counsel for the appellants in support of his contentions noted in the leave granting order at length. On the other hand, the case on behalf of the respondents was argued by Mr. Mumtaz Hussain their learned counsel. The contention of Mr. Mumtaz Hussain was that the consent order in question was bound to be implemented by the High Court under Order X, rule 10 of the Supreme Court Rules and Article 187(2) of the Constitution. He referred to several cases under the Company Law relating the procedure for calling and holding of General Body Meetings powers of removal of directors and on the question of locus standi of the respondents Nos. 2 and 3 for the purpose of seeking execution of the consent order to which, however, reference is not considered necessary on account of the view taken and the conclusions reached in this judgment appearing hereinafter. 16. The impugned judgment is to be examined in the light of the consent order of this Court dated 24-11-1976 and the law laid down in the case of Salahuddin Khan because in any case the executing Court could not grant any relief which othe. Wise could not have been granted in the exercise of the constitutional jurisdiction under Article 199 of the Constitution of 1973 beyond the rule laid down in the abovementioned case. It is for further consideration whether the rarnoval of the first respondent from the office of the Chief Executive on 31-3-1977, respondent No. 2 as co-opted Director on 11-7-1977 and the respondent . No. 3 from the office of the General Manager on 5-5-1976 by the Board of Directors could have been declared void and set aside in the execution proceedings. 17. A reference to the consent order dated 24-11-1976 would indicate that it was not meant to perpetuate the respondents in their respective offices maintaining status quo as on the date of passing of the order for all times to come. It was clearly laid down in the order that the Directors, and the first respondent were to hold their offices as Directors and Chief Executive of the Company respectively until 31st January, 1978 "unless they were sooner removed or ceased to hold office in accordance with law." The power of the Board of Directors, therefore, to remove any of the Directors of the Company or the first respondent as Chief Executive thus remained unfettered. Tht only unequivocal condition was contained in para. 3 of the order according to which the appellants had to withdraw the orders dated 5-5-1976 and 16-8-1976 by which the first respondent was suspended and later removed from the office of the Chief Executive of the Company. The learned Company Judge found that the orders dated 5-5-1976 and 18-6-1976 concerning the first respondent from the office of the Chief Executive of the Company had been duly withdrawn by the Company on 7-12-1976 and the decision of this Court vide para. 3 of the consent order "was implemented to the satisfaction of both the parties" and that the respondent Salahuddin Khan had assumed his duties as the Chief Executive of the Company with effect from 7-12-1976. 18. According to the appellants, the first respondent soon after his re-instatement on 7-12-1976 to the office of the Chief Executive of the Company had started *acting unreasonably and made the things so difficult for the working of the Company that he had to be removed by a resolution of the Board of Directors, dated 31-3-1977, which decision was confirmed in a General Body Meeting of the shareholders. 19. The learned Company Judge on examining the facts of the case found that on the very first day of the assumption of the charge of the Chief Executive on 7-12-1976, the first respondent had started issuing certain office orders which "displayed his conduct in a way which could in the least be considered to be in the interest of smooth functioning of the Company or to be a step towards the fulfilment of the undertakings given to the Court to abide by the agreement both in letter and spirit and in a spirit of accommodation." Having noted thus, the learned Judge went on to observe as under : "Mr. Salabuddin Khan was re-instated as Chief Executive of the respondent Company but he had not been able to exercise his functions and perform his duties as effectively as envisaged in the said order of the Supreme Court. I have already stated and do not feel shy to repeat that the office orders passed by Mr. Salahuddin Khan soon after his reinstatement could by no stretch of imagination be considered as rational and at any rate these were neither issued in the spirit of accom. moelation nor with the intention of abiding by the terms of the agreement or the order of the Supreme Court in letter and spirit hence-the same were, in excess of his authority. The judgment/order of the Supreme Court of Pakistan dated 24-11-1976, which was passed as a result of the :agreement between the parties is equally binding on the petitioner, who besides other matters was also supposed to return the books of the Company to the Registered office of the Company, which according to the respondents, he has not done so far." 20. As regards the functions which the respondent No. 1 as Chiel Executive of the Company was required to perform, it was observed by the learned Company Judge as under : "It follows that Mr. Salahuddin Khan as Chief Executive of the respondent Company, as per the decision of the Board of Directors, to which Mr. Salahuddin Khan was also a party as mentioned in Annexure, P-3 was to perform his duties and functions as entrusted to him by the Board of Directors from time to time. In President Order No. 11 of 1972 in Article 4, the Chief Executive appointed under clause (2) is to hold office on such terms as the Directors may determine and the powers and functions vested in him in relation to the management of the affairs of the Company are to be exercised and performed subject to the general supervision and control of the Directors. Thus, keeping in view the provisions of Article 4 of the President Order No. II of 1972 read with the decisions taken in the meeting of the Board of Directors held on 7th January, 1976 as embodied in the judgment dated .24-11-1976, it cannot be stated, muchless with any propriety, that Mr. ' Salahuddln Khan petitioner as Chief Executive of the respondent Company was invested with unrestricted powers in relation to the management of the affairs of the respondent Company. His assuming as such, would not, therefore, be justifiable. The above findings, prima facie, supported the ground shown by the appellants for . the removal of the first respondent. However, notwithstanding the said findings, the learned Company Judge held that as Executing Court, he, could not at that stage determine whether the consent order dated 24-11-1976 was declaratory or executable, because, according to him, the observations made in the order dated 11-4-1977 were in the nature of direction which required implementation. These observations of the learned Judge go to show that he was acting under the constraint of the remarks contained in the order dated 11-4-1977. By the said order the first respondent's application was dismissed and the matter was left to be examined in appropriate proceedings before the learned Company Judge on proper facts brought before him with the observations that he "may issue necessary directions for the implementation of the mutual settlement between the parties as embodied in the aforesaid order of this Court". In this view of the matter, neither the learned Company Judge nor the learned Judge, who passed the impugned judgment in the Intra-Court Appeal, were under airy mandate from this Court to implement and execute the consent order dated 24-11-1976 in disregard of the facts and the law laid down by this Court m Salahuddin Khan's case referred to above. 21. The numerous office orders issued by the first respondent, referred to by the learned Company Judge, which are on the record, fully support his findings quoted above. The . appellants had filed their written statement supported by copies of the minutes of the General Body Meeting held on 31-3-1977 (R/1), the data of omissions and commissions of Mr. Salahuddin Khan (R/2), the charge-sheet leading to his suspension (R/3), and the list of notices, e , regarding the meeting of the Board of Directors and General Meeting (R/~4), A rejoinder to the same was filed by the respondent Mr. Salahuddin Khan in which several objections, both factual and legal, were taken against the decision of the Board of Directors dated 31-3-1977 challenging it as void ab initio. The allegations and counter-allegations and the controversy so raised by the parxies. clearly gave rise to 4 now dispute and. 4 fresh cause of action. The disputed questions of fact and law arising out of such controversy could only be resolved by means of independent adjudication and were beyond the scope of execution proceedings. Besides, the complaint of the respondent No. 1 that he was not allowed to perform his functions or to discharge his duties appurtenant to the office of the Chief Executive of the Company and his office orders were not obeyed, was not only vague but related to the day-to-day working, internal management and affairs of the Company for which no direction could be issued in constitutional jurisdiction much less in the execution proceedings. 22. The second respondent too was removed from co-directorship on .11-4-1977 by the Board of Directors, who, as earlier noticed, were not debarred from taking any action against him in terms of the consent order. The decision with regard to his removal, according to the appellants, was taken because President Order No. 2 of 1972 required the Board of Directors to fix the number of Directors which was so fixed by the Company on 10-3-1972 as nine. As . a result of co-option of the said respondent, the number of Directors was increased from 9 to 10 which was contrary to the memorandum and articles of association of the Company. This decision of the Board of Directors like the one taken in the case of the first respondent, also gave rise to a fresh cause of action and required adjudication by independent proceedings on the basis of facts and legal position and was beyond the scope of enquiry in the execution proceedings. 23. In so far as the removal of the third respondent from the office of the General Manager.on 5-5-1976 is concerned, the said decision was taken much before the passing of the consent order. In the consent order itself, while in paragraph 3 thereof, pointed reference was made with regard to the withdrawal of the orders dated 5-5-1976 and 16-8-1976, pertaining to the suspension and removal of the first. respondent, but nothing was said about the order of the removal *of the third respondent from the office of the General.Manager of the Company, and, therefore, no direction for his benefit was issued. Additionally, the fact cannot be lost sight of that Writ Petition No. 109 of 1976 was filed by the first respondent alone and so was the appeal to this Court bearing No. 81 of 1976. Civil Miscellaneous Petition No. 5 of 1977 which was dismissed on 11-4-1977, was also filed by the first - respondent alone in relation to his personal grievances. It can well be presumed that the second respondent was aware of such proceedings, but although he stood removed from the office of the General Manager on 5-5-1976, .he never came forward - to make any grievance of the same, and in the circumstances, he'is deemed to have acquiesced in .the order of his removal and, therefore, was otherwise also not entitled to join hands with the first respondent in the execution proceedings. 24. It is further to be seen as to what extent and within what liqlts any relief in the execution proceedings could be granted to the respondents in view of the law laid down by this Court in the case of Salahuddin Khan. Having _ dealt with the question of jurisdiction with regard to grant of relief under Article 201 of the Interim Constitution and Article 199 of the Constitution of 1973, it was laid down in the said judgment as follows : "It is also clear that, while acting under clause (2) (b) (li), the High Court would only grant a . declaration as to the authority of the respondent - to hold the office in question, but it could not grant a mandamus to restore or re-instate the applicant to that office in case comes to the conclusion that the incumbent had no authority to hold the same. The High Court would in such a case only declare the office to be vacant, leaving the rightful claimant, if any, to take whatever steps may be open to him to occupy the same." The reliefs asked for in the execution application were as under:- . "(1) that this learned Court may execute the judgment of the Supreme Court of Pakistan dated 24th November, 1976 in letter and spirit and ensure that the affairs of the Company are managed in accordance with law declared by the Supreme Court of Pakistan ; (2) that all actions taken by the respondents in violation of the aforesaid judgment of the Supreme Court and of law be treated as nullity and being of no legal effect whatever ; and (3) that, in accordance with the law laid down by the Supreme Court of Pakistan, the tenure of the petitioner be directed to be increased by the period/periods during which they have been denied the right to perform their functions by the respondents." In the first place, the first prayer that the consent order dated 24-11-1976 be executed in letter and spirit and it be ensured that the affairs of the Company are managed in accordance with law declared by this Court was itself vague. The questions as to what would amount to the execution of the judgment of the Court in letter and spirit and in what manner-it may be ensured that the affairs of the Company are managed according to the law declared by this Court were questions which could not be ascertained with precision and enforced by way of any direction issued in the execution proceedings. Therefore, the first prayer, as framed, on the face of it, was vague. As respects the second prayer, it has already been ' held that the orders for the removal of the first and third respondents were passed after 24-11-1976, the same furnished independent cause of action and required investigation into facts and law for the purpose of deciding as to whether the same were passed correctly in the background of new facts in accordance with law. These were matters which could not be decided in the forum of execution proceedings. Similarly, the third prayer, as rightly contended by the learned counsel for the appellants, was also vague and the introduction of the formula of extending the term of office for the interrupted period amounted to modification of the consent order itself. 25. Looked in the light of the judgment in Salahuddin Khan's case, therefore, it is clear that the directions given in the impugned judgments are not declaratory but are in the nature of mandamus which could not be issued under Article 199 of the Constitution of 1973 much less in the execution proceedings. The. direction for deposit of salaries of the first respondent, as mentioned in the order of the learned Division Bench, was also beyond the scope of execution proceedings because no order for the payment of emoluments could have been passed in the nature of jurisdiction exercised by th learned Court. 26. For the reasons mentioned above, I would hold that the orders, as passed by the learned Executing Court and the learned Division Bench, cannot be sustained. The only direction, which can be issued in the facts and circumstances of the case and which would meet the ends of justice, in my opinion, would be that the first two respondents are declared to be entitled to their salaries and emoluments, if not already paid, which they were to receive up to the date of their removal from their respective offices. 27. In the result, I would allow the appeal and set aside the impugned judgments dated 28-7-1977 and 29-1-1978 subject to the modification as indicated above. There will, however, be no order as to costs. NASIM HASAN SHAH, J.-I have had the advantage of perusing the judgment prepared by my learned brother S. A. Nusrat, J. but regret that I do not entirely share his views. In my opinion the appeal should be allowed as against the order of the learned Division Bench dated 29-1-1978 but that the order of the learned Company Judge dated 28-7-1977 does not require any interference and requires to be restored. The reason for entertaining this view may be stated shortly thus : According to Mr. S. M. Zaffar, learned counsel for the appellants the order dated 31-3-1977 passed by the Board of Directors removing Salahuddin Khan from the post of Chief Executive of the Company was an independent order having no nexus with the consent order passed by this Court and binding on both the parties. Accordingly, the order of the Board of Directors dated 31-3-1977 furnished a fresh cause of action and could not be regarded as a violation of the settlement arrived at by the parties before this Court and incorporated in the order of this Court dated 24-11-1976 disposing of Civil Appeal No. 81 of 1976. I do not think that this submission is correct. According to para. 4 of the terms of settelment incorporated in the order dated 24-11-1976 it was agreed that "the appellant (Salahuddin Khan) shall continue to hold office of the Chief Executive of the respondent-Company till 31st January, 1978, unless sooner removed or he ceases to hold office in accordance with law": The complaint of Salahuddin Khan (Respondent herein) in the application for contempt submitted to this Court (C. M. P. :Nq. 5 of 1977) was that appellant No. 2 had committed a "wilful breach of certain undertakings given by him to this Court during the proceedings relating to Civil Appeal No. 81 of 1976". It was pointed out that while disposing of this application the Court had observed that "the petitioner (Salahuddin Khan) was entitled to enjoy the full term of his office as Chief Executive, excluding the period of interrupion therein". The Court also had referredto certain other matters including the terms of the agreement dated 4-1-1976 arrived at between the parties at the Governor's House, Peshawar, which provided that "Salahuddin Khan shall with immedate effect be made the effective Chief Executive of the Takht Bhai Sugar Mills and will be given full powers, authority and privileges commensurate with the position of Chief Executive". However, instead of passing any final order in the matter, the Court thought that in so far as for a proper resolution of the controversy now brought to its notice by the petitioner before them (Salahuddin Khan-who is respondent No. 2 herein) it would be necessary to examine the facts and documents supporting the allegations made by him and it would be more appropriate that these matters be agitated by him (Salahuddin Khan) before the learned Company Judge in the Peshawar High Court, who may issue necessary, directions for the implementation of the mutual settlement between the parties as embodied in the aforesaid order of this Court. In this view of the matter, this Court passed the order dated I1-4-1977, although the actual hearing of the matter before it took place on 17-3-1977. It is clear from the observations made by this Court in its order dated 11-4-1977 that the question whether Satahuddin Khan had been allowed to function effectively as Chief Executive of the Comany was the main question to be examined by the Company Judge. But as pointed out above these observations were premised on the situation existing on 17-3-1977, the date on which this matter was actually heard, although the written order of this Court was issued on 11-4-1977. 1n the meanwhile, a new development had occurred viz. that on 31-3-1977 respondent No. 2 (Salahuddin Khan) was removed from the. office 'of the Chief Executive. In these circumstances, the question to be considered by the learned Single Judge (acting as Company Judge) was how to implement the order of this Court in letter and spirit, namely, should the order of the Board of the Directors, dated 31-3-1977 be treated as a continuation of the acts of breach of its undertakings by the appellants as alleged by Salahuddin Khan or as an independent order giving rise to a fresh cause of action, as was being contended for by Mr. S. M. Zafar. The learned Judge reached the conclusion that the action of the Board of Directors was really a continuation of the series of the breaches of the settlement committed by the appellants. According to S: M. Zafar no doubt, the learned Judge was in error in thinking so. I do not share this view. In my opinion, the contention of Mt. S. M. Zafar that since Salahuddin Khan had been re-instated as Chief Executive, the order of this Court, dated 24-11-1976 stood complied with and consequently, the action taken subsequently on 31-3-1977 was something totally new and had no nexus with the consent order passed by this Court, is not sound. This Court in its order, dated 11-4-1977, in fact, noticed the allegations and counter-allegations of both sides at a point of time after respondent No. 2 had been reinstated as Chief Executive, pursuant to its order, dated 24-11-1976 and expressed the view that prima facie these acts amounted to prejudicing the terms of the settlement arrived at before this Court and incorporated in its order dated 24-11-1976. When this view was expressed, the grievance of respondent No. 2 only was that he was not being permitted to function effectively as a Chief Executive and the actual order of his removal from that office was not before the. Court and the observations made by this Court were made in relation to acts which fell short of that. The learned Company Judge, therefore, appears to have been right in thinking that in this background if the order of removal itself had been brought before the Court it would have regarded it. to be a violation of the undertaking given to this Court by the parties, which were incorporated as terms of the order dated 24-11-1976. In these circumstances, I consider that the order of the learned Company Judge dated 28-7-1977 directing appellants Nos. 2 to 6 herein to allow Salahuddin Khan (Respondent No. 2 herein) to perform his duties and functions as Chief Executive of the respondent Company in terms of the agreement dated 4-1-1976 adopted and confirmed in the meeting of the Board of Directors held on 7th January, 1976 and embodied in the judgment and order dated 24-11-1976 of the Supreme Court in Civil Appeal No. 81 of 1976, was the correct order. I would, accordingly, allow the appeal to the extent that the order of the Division Bench dated 29-1-1978 be set aside but the order of the Company Judge dated 28-7-1977 should be restored. The parties should bear' their own costs, ' ORDER OF THE COURT In accordance with the view of the majority this appeal is allowed There will, however, be no order as to costs. S. Q. Appeal allowed.