P L D 1968 Karachi 115 (PLP)

7. The second point in issue No. 2 is whether the decree as varied by the subsequent private arrangements is executable. In cases of such variations, it has first to be determined as to what is the variation affected in the decree by the agreement between the parties. In the instant case, the decree provided for delivery of 2,00,000 maunds of molasses to the decree‑holders in three stages 50,000 maunds, 1,40,000 maunda and 10,000 maunds. The changes effected in this arrangement by Exh. 11 and Exhs. 6, 7 and 28 were these:‑‑ (i) 29,343 maunds, being the remaining quantity out of the first lot of 50,000 was agreed to be lifted after the completion pf delivery, of the second and third lots. (ii) The true for commencement of the delivery of 1,40,000 maunds was postponed to 1st December 1966. The question for determination is whether these changes are such that the decree should be deemed to have been adjusted and substituted by a new agreement between the parties, which would be enforceable by a separate suit, and not through execution proceedings. On this question, we have a decision of the Privy Council in oudh Commissioner Bank Ltd. v. Thakurain Bind Basni Kuer and others (A I R 1939 P C 80) in which, referring .to a term by which the judgment‑debtor was allowed to pay the decretal amount by instalments, it was observed that the compromise did not introduce any liability extraneous to the decrees. Their Lordships further held that they were not prepared to hold "a fair and ordinary bargain for time in consideration of a reason able rate of interest as an attempt to give jurisdiction to a Court to amend or vary the decree ,"and that 'such a bargain has its effect upon the parties' rights under the decree and the executing Court under section 47 bas jurisdiction to ascertain its legal effect and to order accordingly." It was further observed that "if it appears to the Court, acting under section 47, that the true effect of the agreement was to discharge the decree forthwith in con sideration of certain promises by the debtor, then no doubt the Court will not have occasion to enforce the agreement in execution proceedings, but will leave the creditor to bring a separate suit upon the contract. If on the other hand, the agreement is intended to govern the liability of the debtor under the decree and to have effect upon the time or manner of its enforcement, it is a matter to be dealt with under section 47,. In such a case to say that the creditor may perhaps have a separate suit is to misread the Code, which by requiring all such matters to be dealt with in execution discloses a broader view of the scope and functions of an executing Court." Their Lordships after approving the statement in Cobardhan Das v. Dau Dayal (I L R 54 All. 573) that in "numerous cases a compromise between the decree‑holder and the judgment‑debtor entered into in the course of execution, proceedings, which was duly recorded, has been enforced", held that they were not of the opinion that this practice, which is both widespread and inveterate, is contrary to the Code.

8. This decision of the Judicial Committee of the Privy Council came up for consideration in a case decided by the Sind Judicial Commissioner's Court, Lachhumal Norumal v. Atta Muhammad Khan Nabibakhsh Khan and others (A I R 1939 Sind 343), Davis, J. C., observed' in this case that a compromise agreement varying the time or manner of enforcement of a decree may be a partial adjustment of a decree and can, therefore, be enforced in execu tion proceedings in satisfaction of that part of the decree which remains yet unsatisfied, but if the compromise agreement is a total adjustment of a decree though that agreement may be the subject matter of a suit; it cannot be enforced in execution of a decree which is totally adjusted or satisfied. Lobo, J., in a separate judgment, stated the legal position in these words:‑-- "If the contract between the parties leaves the liability of the judgment‑debtor under the decree in substance unaffected and is confined to variation merely of subsidiary matters such as the time and mode of payment, the contract between the parties whether or not it amounts to an adjustment within the meaning of Order XXI, rule 2, C. P. C. may be enforced by the Court in execution of the original decree at the instance of the judgment‑creditor. If on the other hand, the contract between the parties introduces terms which are foreign to the decree and introduces into the decree a liability extraneous thereto the Court in execution proceedings at the instance of judgment- creditor will not enforce the contract but leave the judgment -creditor 'to a separate suit. If in spite of such a contract the judgment‑creditor seeks to execute the original decree the judgment‑debtor may successfully plead the contract as a bar to such execution."

9. Thus, the real testis whether the agreement introduces a term or a liability extraneous to a decree, or whether it affects merely subsidiary matters, such as the time and mode of 'performance. On this test it cannot be said that Exh..11, or Exhs. 6, 7 and 28, introduced any foreign term or liability into the decree. Under Exh. 11, only the time for the delivery of the balance quantity out of the first lot of 50,000 maunds was postponed" Under Exhs. 6, 7 and 28, the date for commencement of the delivery of 1,40,000 maunds was postponed from 1st November to 1st December 1966. These are subsidiary matters relating to the mode and time of performance of the obligations under the decree. No extraneous liability was imposed on the judgment‑debtors No did these agreements result in a complete adjustment of the decree by substitution of new obligations to be performed by the judgment‑debtors. I would, therefore, hold that the consent decree granted by the Court on 15‑9‑1966 remained in substance; unaffected by the subsequent variations agreed to between the parties under Exh. 11 and Exhs. 6, 7 and 28 and that this decree remains executable.

10. Issue No. 3.‑‑The next issue is issue No. 3, under which the question is as to which of the two parties, i.e. the decree- holders or the judgment‑debtors, committed breach of the terms of the consent decree. But before discussing the evidence led by the parties on this point, the legal position with regard to execution of a decree for specific performance, which imposes reciprocal obliga tions on the seller and the purchaser may be stated. Execution of such a decree will not be ordered unless the party seeking the execution offers to perform his part and, further, satisfies the executing Court that he is in a position to do so. A party is precluded from seeking execution of such a decree if he is not capable of performing the part imposed on him by the decree. The executing Court will have to determine whether or not the party seek in execution has rendered himself incapable of doing his part under the decree. Now the decree of which execution is sought in these proceedings imposed reciprocal obligations on the decree‑holders and the judgment‑debtors. These obligations, so far as relevant to the controversy in these proceedings, were that the judgment‑debtors shall give, and the decree‑holders shall take, delivery of following 200,000 maunds of molasses strictly in accordance with the Schedule:, (i) 50,000 maunds shall be lifted by the decree‑holders between 5‑9‑1966 and 7‑11‑1966. (ii) 1,40,000 maunds will be delivered in instalment of 20,000 maunds per month' commencing from the 1st or 8th of November 1966, whichever was earlier, after the decree‑holders' had lifted 50,000 maunds. (iii) Upon completion of the delivery of these quantities the judgment‑debtors would deliver a further quantity of 10,000 maunds to the decree‑holders.

11. The decree further provided, in clause 3, that if the first lot of 50,000 mds. was not lifted by 7th November 1966, then this quantity as well as the second lot of 1,40,000 mds. would be sold by the judgment‑debtors to third parties. Clause 5 provided that if the decree‑holders failed to lift 20,000 rods per month out of the second lot, the judgment‑debtors would treat this failure as breach of contract by the decree‑holders, in which event the judgment‑debtors would be relieved of the responsibility for supplying the remaining quantity of this lot to the decree-holders.

12. Thus, both the parties were under obligation to adhere to the time Schedule with regard to the delivery' of the first and second lots. It is not disputed that the decree‑Solders lifted only 20,657 maunds out of the first lot by 7th November 1966. This would, in the normal course, have put an end to the judgment debtors' obligations under the decree. But by Exh. 11, the judgment‑debtors agreed to waive this default and to allow the decree‑holders to lift the remaining quantity of 29,343 maunds after delivery of the second and the third lots. There is, therefore, no dispute with regard to the delivery of the first lot. The contest between the parties has proceeded on the question. Whether the time Schedule with regard to the delivery of the second lot was adhered to, and if nor; who is responsible for breach in this respect. As noted above, commencement of the delivery of this second lot was postponed from 1st November 1966, to 1st December 1966, from which last date the decree‑holders had to lift 20,000 maunds per month. But the decree‑holders lifte3 only 14,680 maunds 36 seers during December 1966, and have attributed the failure to lift the balance quantity to breaches of the agreement on the judgment‑debtors' part. These breaches have been enumerated under the following headings:‑‑ (i) wilful dislocation of the delivery pump at the judgment debtors' sugar mills; (ii) varying the delivery hours to the decree‑holders' dis advantage; (iii) detaining the decree‑holders' trucks at the Mills for long and indefinite periods; (iv) varying the routes by which the decree‑holders had to take delivery of the molasses, which resulted in delays (v) preferential deliveries to third parties; (vi) intimidation of the decree‑holders' representatives at the judgment‑debtors' Mills at Talhar.

13. With regard to the allegation of wilful dislocation of the delivery pump, the evidence consist of the deposition of decree -holders' witnesses Chand, Abdus‑Sattar and Shamsuddin. No reliance, however, can be placed, on these witnesses. Chand stated that he visited the mills on 30‑11‑1966, when he was informed by the judgment‑debtors' representatives, Foujdar and Saudagar, that the delivery pump was out of order and its repair would take a day or two. According to him the pump was also out of order on 16th and 17th December 1966 and accordingly, the decree‑holders did not take their trucks to the mills on these dates for lifting molasses. But in cross‑examination this witness was shown six gate‑passes, Exhs. 96/8 to, 96/ 12, whereupon he admitted that these gate passes were issued to the decree‑holders' trucks on the 16th and 17th December 1966. Mr. Saudagar, who gave evidence on behalf of the judgment‑debtors, denied that Chand visited him at the Mill on 30‑11‑1966 or that the molasses pump was out of order on this date. Decree‑holders' witness Abdus Sattar stated that the molasses pump was out of order on 5‑12‑1966, so that only one truck‑toad was delivered on this date at about 3 or 4 p.m. But the molasses delivery register (Eah. 105/8), produced by the judgment‑debtors, shows that on 5‑12‑1966 the decree‑holders' truck left the mills premises with full load at 9‑30 a m. Abdus Sattar then stated that the delivery pump also failed on 21‑12‑1966 and the decree- holders' trucks were kept waiting throughout that day without obtaining deliveries. But on being shown Exh. 108/1, which is the statement of deliveries made at the Mills, he admitted that the decree‑holders took delivery of one truck‑load on this date. The decree‑holders' witness Shamsuddin also admitted that one struck‑load was delivered on 21‑12‑1966. Thus, these witnesses have made contradictory and incorrect statements on the question of the working conditions of the delivery pump and deliveries on the dates the pump was alleged to be out of order. I would, therefore, not attach any Height to their evidence. On the other hand, the judgment‑debtors examined Haroon and Arif, employees at their sugar mills. Both of them stated that the molasses pump went out of order only once, on 22‑12‑1966, and was immediately replaced by the extra pump which was kept in reserve. According to them delivery was delayed by one hour only on this date, but to compensate for this delay, delivery time was extended by one hour. On this evidence, I am of the view that the decree‑holders have failed to prove that there was any dislocation, wilful or otherwise, of the delivery pump or that any delay in delivery was thereby caused to the decree- holders.

13. The compromise application under Order XXIII, rule 3, C. P. C. provided in clause 2, that the delivery timings shall be from 7 a.m. to 5 p.m. and that no delivery will be given on Sundays and Bank holidays. The witness Chand stated that the actual delivery timings observed by the judgment‑debtors during December were from 8‑30 a.m. to 1 in the noon, and 3 p.m. to 5 p.m. But he is contradicted in this respect by the judgment- debtors' witnesses Haroon, Muhammad Arif and Muhammad Amin, who stated that during the whole of the month of December 1966, the judgment‑debtors observed delivery timings from 7 a.m. to 5 p.m., with one hour's break for lunch, I am not inclined to believe the decree‑holders' witness Chand on this point. This witness contradicted his own allegations with regard to dislocation of the delivery pump. He did not appear to me to be a truthful witness.

14. It is alleged that the judgment‑debtors wilfully kept the decree‑holders' trucks waiting for long hours, and this caused delay in deliveries. The version given by Chand and Hassanali is that one of the trucks belonging to the decree‑holders was obstructed by the truck' of S. A. Transport Company; and that the decree‑holders' truck was then detained by the police at the judgment‑debtors' instance. The judgment‑debtors' witnesses Saudagar and Foujdar denied this allegation and stated that the Talhar police visited the mills on 17‑12‑1966 to check the fitness of the trucks; the decree‑holders' truck, which had already been loaded with molasses, was found to be defective and was detained by the police, but was released on 19th December 1966. Sher; Muhammad, the employee of S. A. Transport Company, was examined by the decree‑holders. He stated that on 17th December 1967, S. A. Transport Company was engaged in lifting molasses for the decree‑holders from the judgment‑debtors mills. Thus, the obstruction alleged by Chand was by the decree‑holders' own agents, namely, S. A. Transport Company. Nor was any effort made by the decree‑holders to summon police record, which would have shown whether or not the detention of the truck was at the judgment‑debtors' instance. The witness Shamsuddin is stated that the judgment‑debtors did not allow entry to the decree‑holders trucks on 23‑12‑1966. But then their next witness, Abdus Sattar, stated that actually three trucks of the decree‑holders were detained within the mills on this date. Mr. Nasim Farooqi, the learned Advocate for the decree‑holders, was unable to give any guidance as to which of these two witnesses should be believed. The allegation of detention of the trucks made by Abdus Sattar is clearly false. When shown counter‑foils of delivery slips Exh. 97/7 to 97/10, showing delivery of molasses to the decree‑holders on this date, this witness admitted that the trucks were detained in the mills after 5 p.m. The delivery timings being between 7 a.m. to 5 p.m., the decree‑holders themselves must have allowed their trucks to remain inside the mills after 5 p.m. The judgment debtors witness, Haroon, denied the allegation that entry .was refused to the decree‑holders' trucks on 23rd or‑ 24th December 1966. Their witness Muhammad Arif denied that any of the decree‑holders' trucks were detained in the mills after 5 p.m. on 23rd December 1966. This witness also produced the molasses delivery register, Exh. 105/8, which showed that 1,024.24 mds. were delivered to the judgment‑debtors on this date. The decree -holders' witness Abdus Sattar also alleged that two of their trucks were detained in the mills on 25th December 1966, but it being a Sunday, I cannot believe that any trucks were taken by the decree‑holders for delivery on 25th December 1966, though this witness asserted falsely, in my opinion, that deliveries were given on Sundays also. Thus, the decree‑holders have failed to prove that deliveries to them used to be delayed by refusal of entry to their trucks of detention of the trucks within the mills.

15. The next allegation is that the judgment‑debtors varied the route for the exit of the trucks in a manner which constituted harassment of the decree‑holders and caused delay in deliveries, and, further, that the judgment‑debtors intentionally adopted procedure which lengthened the time for deliveries. Neither this allegation, nor the evidence to substantiate it, suffers from clarity. The allegation, however, has been denied by the judgment‑debtors witnesses, Haroon, Muhammad Amin and Saudagar, who stated that the judgment‑debtors' observed uniform procedure throughout 'for effecting deliveries, except in September, which was' off‑season period, when the purchasers' trucks were allowed exit through the rear gate which is usually used during the crushing seasons for bringing sugar‑cane into the mills. I cannot understand what legitimate grievance the decree‑holders could have in being required to take their trucks through the front gate. It was also alleged that delay in delivery was also caused by the requirement that trucks, after loading, could not be taken out of the mills except with the permission of either Mr. Foujdar or Mr. Saudagar, who were frequently absent from the mills. But judgment‑debtors' witness Muhammad Arif stated that during the absence of these offcers, he used to give deliveries himself and. obtained signatures of these officers later on. The decree‑holders then made a grievance of the long ‑time consumed in filling up. the trucks with molasses. Their witnesses Chand and Abdus Sattar, stated that during September, 12 minutes used to be sufficient for loading one truck, but in. December one truck could not be loaded in less than 45 minutes. But this difference has been properly explained by P. D. Kapadia and Muhammad Arif, who stated that it usually take: longer in winter to pump molasses info the trucks. An allegation was then made that the judgment‑debtors adopted the practice of attaching two pumps to the decree‑holders' trucks, one of which was used to pour the molasses into the trucks, but the other pump would take the molasses back into the tank. This allegation has been denied by the judgment‑debtors. It appear to me to be an absurd and false allegation. On this evidence, it cannot be said that there is any truth in the allegation that the judgment‑debtors caused delays in deliveries either by changing the routes or in any other manner.

16. The next allegation of breach is of preferential deliveries to third parties to the detriment of the decree‑holders. This allegation was made by the decree‑holders' witnesses Chand, Shamsuddin and Muzaffar. But their other witness, Sher Muhammad, contradicted this allegation by stating that deliveries were given by the judgment‑debtors on the basis of "first come first served". He also stated that on 19th December 1966, he was the first to take two trucks into the mills and was given delivery first, and the trucks of Kapadia Transport Co. and Union Transport Co., which comes later, were kept waiting. The judgment‑debtors' witnesses Kapadia, Muhammad Amin and Rashid, this last person being from Union Transport Co. to whom preferential treatment is alleged to have been given, confirmed that deliveries were strictly given in accordance with "first come first served" basis. It was lastly alleged that the judgment‑debtors intimidated the decree‑holders representatives, which in some mysterious way caused delay in deliveries. The witness Abdus Satter stated that the decree‑holders' men were threatened with being shot down if they attempted to use the main road of the mills. This allegation is also denied by the judgment‑debtors witness Mr. Saudagar. I cannot place any reliance on the evidence in support of this allegation, because there could not be any occasion for holding out such threats. The witness Shamsuddin admitted that there was a metalled road in front of the mills which is freely used by the trucks taking deliveries from the mills.

17. Thus, the review of the evidence led by the parties does not show that there was any breach on the judgment‑debtors' part to give deliveries to .the decree‑holders according to the arrange ments contained in the consent decree. The witnesses produced by the decree‑holders in proof of the allegations of breach did not appear to me as truthful witnesses. Their statements are full of contradictions. I, cannot, therefore, believe the story set up by these witnesses with regard to the conduct of the judgment debtors in giving deliveries. The real reason for the decree holders' failure to lift the full quantity of 20,000 mds. during December 1966, appears to be that they had no storage capacity to store all the molasses which they had to lift from the judgment debtors, and, further, they also had no transport arrangements to take delivery from the judgment‑debtors. The accepted position is that the molasses lifted from the mills were stored in a pit made by the decree‑holders adjacent to the Talhar railway station. Different versions of this pit's sagacity were given by the decree -holders' witnesses. According to Chand, the capacity was 80,0(10 to 90,000 mds. Hassanali stated that the capacity was 90,000 mds. Shamsuddin stated that the capacity was 70,000 mds. The surveyor examined by the decree‑holders, namely, Usman Ghafoor, failed to mention the total storage capacity‑ of the pit. The measurements of the pit also are different according to these witnesses: Chand gave the measurements as 20' x 40' x 35' x 35'. According to Sher Muhammad the pit is 50' x 50' x 25'. Usman Ghafoor (Exh. 101/1) stated that the measurements of the pit were 185' x 150' x 130'. But the measurements of this last witness are only of the three sides of the pit. This witness did not measure the depth of the pit. Shamsuddin stated that the pit was empty in December 1966 by 1 feet and could take 25,000 mds. of molasses more. But Sher Muhammad stated that the pit was empty by half and could take. 80,000 mds. more. Hassanali, on6the other hand, stated that the, pit could take on 19‑12‑1966, .30,C00 mds. more molasses. According to Usman Ghafoor, only 22,000 mds. more could be stored in the pit in December 1966. Thus, these witnesses have given varying versions with regard to the capacity and measurements of the pit. On the other hand, the judgment‑debtors' surveyor, George Lobo, stated that the pit's total capacity was 42,000 mds. and that it was already full when he carried out its survey. I thinly the statement given by. Mr. Lobo gives the correct position on this question. It further appears that the decree‑holder did not also have any satisfactory transport arrangements for taking delivery of the molasses. Mr. Rashid, representative of the Union Transport Co., was examined in this connection on the judgment‑debtors' behalf. He stated that his company was approached by the decree‑holders to lift molasses on their behalf from the judgment-debtors' mills, but that no arrangement in this connection could be concluded between the parties. I am satisfied on this evidence that the real reason for the decree‑holders' failure to lift the instalment of 20.000 mds. during December 1966, was that they had no satisfactory transport arrangements to take deliveries, nor any storage capacity. The judgment‑debtors cannot, therefore, be said to have committed any breach of the terms. of the consent decree. Under' the consent decree, the judgment‑debtors were entitled to put an end to the contract between the parties for delivery of molasses if the decree‑holders failed to lift the second lot of 1,40,000 mds. according to the time schedule given in the consent decree, that is, in monthly instalments of 20,000 mds. The decree‑holders lifted only 14,680 mds: 36 seers during December 1966, and, therefore, the judgment‑debtors validly 'determined the contract by their notice dated 1‑1‑1967 (Exh. 20). In these circumstances, the decree‑holders have precluded them selves from performing their part of the contract and no order for specific performance of the consent decree can therefore, be given in these execution proceedings.

18. For these reasons the execution applications and the application for transfer of the decree to Hyderabad, made by the decree‑holders fail and. are hereby dismissed with costs in favour of the judgment debtors. K.M. A. Petition dismissed.