P L D 2008 Quetta 33 (PLP)

MEHTA KAILASH NATH KOHLI, J.

This petition is directed against judgment and decree, dated 24th April, 2006, passed by learned Majlis-e-Shoora Mekran at Turbat in Civil Appeal No.66 of 2005, whereby; appeal filed against order, dated 16th June, 2005 passed by learned Qazi Pasni, in execution application has been directed to be dismissed. Facts of the case, in brief, are that predecessor-in-interest of private respondents filed application for execution of decree, dated 2nd October, 2003, passed by learned Qazi Pasni in a civil suit seeking declaration and permanent injunction, which was stated to have been decreed on the basis of some compromise arrived at between the parties. Contents of order, dated 2nd October, 2003 passed by the trial Court are reproduced herein below: Rejoinder/Objection petition was filed by present petitioners, wherein; objections were raised that; (a) application is not maintainable under section 23, C.P.C.; (b) the decree, dated 12th October, 2003, is not an executable decree, as the suit was disposed of having been made consigned to record. On merits claim of the respondents was refuted and denied. It has been stated that clause (1) of agreement, lands of respondents were specifically mentioned, in which the petitioners have no right or concern, and they have no claim over the same, and thus, no violation of agreement has been made. Learned trial Court vide order, dated 16th June, 2005, allowed the application of respondents. Against aforementioned order, appeal was filed before Majlis-e-Shoora Mekran at Turbat, Learned Majlis-e-Shoora vide judgment and decree, dated 24th April, 2006 accepted the appeal and directed that the application relating to relief was related to some other decrees and petitioners are at liberty to file execution pursuant to agreement arrived at on 2nd October, 2003. Syed Ayaz Zahoor, learned counsel for petitioners has outrightly submitted that suit was virtually decreed and was an executable decree within the purview of Order XXI, C.P.C. It was further contended that the decree as claimed in the application filed on 12th June, 2004, the prayer made was admissible in law, as such; there was subsisting executable decree made pursuant to agreement, dated 2nd October, 2003. It was prayed that execution of above decree was made. Mr. Basharatullah Advocate assisted by Mr. Muhammad Noor Miskanzai, Advocate appearing on behalf of respondents had also referred to order of the Court, whereby; the application for execution was withdrawn unilaterally without any reservation of right vide order, dated 12th June, 2004. He has though admitted that in Appeal No.114 of 2004 decided on 28th December, 2004, Majlis-e-Shoora, Mekran instead of `dismissal' directed `return' of the execution application, and thus; within the purview of Order XXIII, C.P.C., a decree cannot be executed in view of the principle contained in Order XXIII, rule 1, C.P.C. Reference to AIR 1948 Patna 113 has also been made. It was further contended that there was no decree passed which could be executed as the file was consigned to record, lastly; submitted that the prayer made in the application for execution, is beyond the sphere of order passed. I have considered the arguments advanced by learned counsel for the parties and perused the record. The first question for consideration before me is as to whether the order referred to above is a decree within the purview of law and if so, whether it is executable order or otherwise. Decree has been defined by section 2 subsection (2) of the Code of Civil Procedure, 1908, which conclusively decides the rights of the parties. Section 2 subsection (2), is reproduced hereinbelow:- "

2. Definitions.

(2) "decree" means the formal expression of an adjudication which, so far as regards the Court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit and may be either preliminary or final. It shall be deemed to include the rejection of a plaint [the determination of any question within section 114, and an order under Rules 60, 98, 99, 101 or 103 of Order XXI] but shall not include

(a) any adjudication from which an appeal lies as an appeal from an order, or (b) any order of dismissal for default. Explanation.

A decree is preliminary when further proceedings have to be taken before the suit can be completely disposed of. It is final when such adjudication completely disposes of the suit. It may be partly preliminary and partly final." From the perusal of above provision, it appears that the parties had filed a compromise that they have settled the dispute outside the Court though they were not interested in pursuing with the matter, but; has been observed by the learned trial Court that the matter be consigned to record, but parties will be bound by compromise, dated 2nd October, 2003. Learned trial Court while consigning the case to record directed the parties to maintain and abide the compromise in its letter and, spirit, simultaneously; order was made to prepare the decree-sheet. Section 2(2), C.P.C., reproduced hereinabove clearly contemplates that final adjudication in the matter has been made. From the above reading of record, it is abundantly clear that while consigning the file to record, the learned Qazi had decreed the suit by holding that parties should abide by the terms of compromise, dated 2nd October, 2003, which was produced. Para Number 3 of the order, dated 2nd October, 2003 cannot be read in isolation and is to be read in conjunction of para Numbers 1 and 2, which reflect that final adjudication had been made and parties have restricted themselves to the compromise deed, dated 2nd October, 2003. Thereafter execution application was filed was requested to be withdrawn and the executing Court dismissed the same vide order, dated 12th June, 2004. It would not be out of place to mention that the learned Appellate Court disposed of the appeal vide judgment and decree, dated 28th December, 2004; the learned executing Court instead of dismissal has directed that the application be returned without there being any limitation. Now question arises that as to whether second .execution application could be filed. Learned counsel for respondents has referred to a full Court judgment delivered in the case of Kishun Dutt and others v. Gulabchand Prasad and others (AIR 1948 Patna 113), wherein on account of conflict of opinion a full bench was constituted and the full Court was pleased to hold that withdrawal of proceedings under Order, XXIII, rule 1, C.P.C. could not have been made, however; the Honourable Full. Bench had observed the questions referred to in the following terms:

3. Question referred to the Full Bench Answer to the referred questions

16. In consideration of what we have said before, we answer the questions referred to us in the following manner: (1) Has decree-holder an absolute right to withdraw an execution case with or without the permission of the Court? Question No.1 is divisible into two parties. One part is whether the decree-holder has the absolute right of withdrawal without leave of Court and the answer to this will be in the negative. The answer to the other part, namely, whether he has such right with leave of the Court will be in the affirmative. (2) If so, has he the right, with or without the permission of the Court, to take out fresh execution of the same decree? Question No.2 Yes, he has such a right but subject to the orders, if any, passed by the Court in the previous proceeding at the time of dismissal or withdrawal, as the case may be. (3) Is the answer to question (1), or question (2), affected by the fact that a sale has begun before the decree-holder applies to withdraw the execution case, and Question No.3 The decree-holder will have no such right to withdraw the execution case after commencement of the sale except under orders of Court. (4) Does the fact that the decree under execution is mortgage decree for sale affect the answer to the previous questions? Question No.4. Answer to this question will be in the negative. From the thorough scrutiny of above judgment, it is abundantly clear that withdrawal of execution proceedings could not be made without leave of the Court, however, such application cannot be allowed to be withdrawn after the commencement of the sale. In my humble view, the question involved in this case, is as to whether the provisions of Order XXIII, rule 1(3), C.P.C. are attracted and a bar of estoppel is created by virtue of law on account of withdrawal of execution application or otherwise. Order XXIII, rule 4, C.P.C. has clearly mentioned that the provisions of Order XXIII, are inapplicable in proceedings relating to execution of decree. Reference is also made to the judgment reported in the case of Palaniandi Pillai and another v. Papathi Animal and others (AIR 1914 Madras 01). Their lordships in the Madras High Court were pleased to hold that the provisions of Order XXIII, rule 1(3) of Code of Civil Procedure are inapplicable to the execution proceedings. Similarly, a Division Bench of Patna High Court in the case of Bihar State Sunni Waqf Board v. Syed Bashiruddin Ashraf and others (AIR 1985 Patna 52) has held that no compromise could be recorded by the executing Court or any withdrawal could be ordered under Order, XXIII, C.P.C. It is, therefore, concluded that said provision of law is inapplicable to execution proceedings and the objection is not in accordance with law, thus; the same is over-ruled. Coming to the merits of the case, the learned Appellate Court has discussed application on the basis of some judgments arrived at in the years 1986 and 1992, which have not been produced before this Court and has no relevance. The impugned order suffers from patent illegality and has not been passed while considering the objection raised by the present respondents, as well as, relief sought in the execution application and the terms of the decree passed by the Qazi Court. The impugned order is therefore, directed to be set aside and the case is remanded to the Appellate Court to examine all the objections raised, as well as, the relief claimed and admissibility of the same within the purview of law and in view of the observations made hereinabove. Consequently, while accepting the petition, the impugned order, dated 24th April, 2006 is directed to be set aside and the case is remanded to the Majlis-e-Shoora Mekran at Turbat for decision after considering the objection raised by other side and observations made hereinabove in accordance with the provisions of law. M.B.A./9/Q Case remande