1969 PLP 225 (SCMR)

ABDUS SATTAR, J.‑The respondent obtained a decree for money against the petitioner firm in the High Court of West Pakistan at Karachi and in execution of the decree three Textile Mills of the firm were attached. During the pendency of the execution proceedings, an agreement was entered into between the parties on the 25th October 1962 (Exh. 8). The important terms of the said agreement are as follows : ‑ (1) That the value of these three factories together with all the movable and immovable properties thereon has been mutually agreed upon to be Rs. 1,65,000.00 free from all kinds of incumbrances, income‑tax, debts and dues and liabilities. (2) That as against the claim of the party of the first part which originally stood at Rs. 1,00,000 and to which cost and interest has been added thereafter, the party of the second part has agreed to pay to the party of the first part Rs. 75,000.00 in full and final settlement of the claim stated herein and the party of the first part has agreed to accept the same. It is further agreed between the parties that this amount of Rs. 75,000.00 shall be adjusted towards the price of the three factories aforementioned, namely Rs. 1,65,000.00. (3) That after adjustment of the price there shall remain with the party of the first part a sum of Rs. 90,000.00 which the party of the first part shall pay at the request of the party of the second part to the other creditors of the party of the second part, the balance, if any, to the party of the second part. The parties then, on the 6th of November 1962, filed two applications in respect of two of the attached Mills in which it was said that tae parties had now settled their dispute out of Court as a result of which judgment‑debtor had sold, transferred and assigned all the movable and immovable properties of the two Textile Mills to the decree‑holder towards the payment of the decretal amount. 1 hey prayed that the two Mills be desealed and the Nazir be directed to hand over actual possession of the said properties to the decree‑holder. by an order dated the 12th November 1962, a learned Single Judge before whom these applications came up for hearing directed that the parties should disclose the amount of the decree which was satisfied and paid of by the adjustment alleged in these applications. The parties then, on the 19th November 1.962, filed two more applications in which it was prayed that a total sum of Rs. 50,000 be adjusted towards the decretal amount "on the decree‑holder getting possession" of the two factories. A learned Single Judge dismissed these applications mainly on the ground that the applications for adjustment were barred by limitation. He accordingly directed that the execution of the decree should proceed. The Letters Patent Appeal filed against that order was also dismissed. It is contended that since the parties had entered into an agreement on the 25th October 1962, in respect of the decretal amount, the remedy of the decree‑holder was under the said agreement and the execution case could not proceed. The learned counsel for the petitioner has also argued that since the applications for adjustment of the decree were made by the decree‑holder and the judgment‑debtor jointly, no question of limitation arises. The points raised merit consideration. Leave is accordingly granted. Security in the sum of Rs. 1,

000. Execution proceedings will remain stayed during the pendency of the appeal in this Court but if the decree‑holder firm wants possession of the Mills in question in terms of the agreement and the two applications for adjustment of the decree the same should be given to it. Leave granted.