P L D 2006 Lahore 1 (PLP)

SYED ZAHID HUSSAIN, J.

Judgment and decree dated 2-3-2000 whereby suit for possession through specific performance instituted by respondent No.1 was decreed as against defendants Nos. 1 to 5 and was dismissed as against the appellant (defendant No.6 in the suit), has been assailed through this appeal. The suit of respondent No.1 was based on an agreement to sell dated 26-6-1995 wherein initially defendants Nos.1 to 5 had only been impleaded as defendants. As the appellant had made an application under Order I rule 10 of Code of Civil Procedure, 1908 to be impleaded as party he eventually was ordered to be so impleaded and was arrayed as defendant No.6 to the suit vide order dated 20-6-1997. While the trial was in progress and evidence was being recorded by the trial Court, the plaintiff and defendants Nos.1 to 5 in the suit applied for the disposal of the suit on the basis of compromise which was marked as Mark-A. On 26-2-2000 the statements of the parties/their attorneys were recorded by the Court whereas the version/objection of the appellant/ defendant No.6 was noted by the Court to the effect that the said compromise adversely affected him. The case was, thus, adjourned to 1-3-2000 for arguments and hearing on this aspect. It was through judgment and decree dated 2-3-2000 that trial Court proceeded to decree the suit against defendants Nos.1 to 5 and to dismiss the same as withdrawn as against defendant No.6 who is appellant before us.

2. The learned counsel for the appellant has expressed his apprehension that though the judgment and decree purports to make mention that the suit as against the appellant stand dismissed yet the decree is likely to be executed against him as he is in possession of the property. The learned counsel for the decree-holder/plaintiff, on the other hand, contends that by filing written statement the appellant had sought for the dismissal of the suit which prayer of the appellant to that extent stand granted by the Court and that in case there is apprehension of the appellant about the executability of the decree, remedies under the law are available to him.

3. It stands out from the record that the appellant had undoubtedly become party to the suit on the basis of an order passed by the Court allowing his application on 20-6-1997 who thereafter had filed written statement and had been participating in the trial of the suit. He had therefore reasons to express his apprehension about the effect of compromise inter se the plaintiff and other defendants. However, while accepting the said compromise the learned trial Court appeared to be fully conscious of this aspect and it was observed that "defendant No.6 is not prejudiced by this compromise in any manner so there is no A justification to accept his version and it is rejected". It was further noted by the trial Court that "the plaintiff has got recorded his statement for the dismissal of the suit as withdrawn to the extent of defendant No.6." It was accordingly concluded that "the suit is hereby decreed in favour of the plaintiff against defendants Nos.1 to

5. The suit to the extent of defendant No.6 is dismissed as withdrawn". The decree drawn by the trial Court of the same date also is to the same effect. Section 96 of Code of Civil Procedure, 1908 precludes any appeal from a decree passed by the Court by the consent of the parties. Insofar as the decree passed in favour of the plaintiff with the consent of defendants Nos.1 to 5 is concerned, the same falls within the realm of consent decree. Although the appellant who was defendant No.6 before the trial Court was not party to such compromise yet no decree has been passed against him. It may be observed that "appeal" in its ordinary parlance and connotation is a sort of complaint to a higher forum against decision of a lower forum for the reversal of the same. In the instant case the decision in the matter and the decree is of dismissal of the suit qua the appellant. He has no right to appeal against such a decree which is not against him. We, therefore, do not find justification for the appellant to maintain an appeal against any such judgment which takes care of his apprehensions, and notes that "Defendant No.6 is not prejudiced by this compromise in any manner". The law also provides sufficient protection and adequate safeguards to such a person in possession against whom suit has been withdrawn and dismissed by the Court. The appeal is dismissed accordingly with the above observations. No order as to costs. M.B.A./A-599/L????????????????????????????????????????????????????????????????????????????????? Appeal dismissed.