P L D 1965 Dacca 122 (PLP)

So far as the position of creditor Abdul Aziz is concerned he has urged that the compromise embodied in the judgment of the appellate Court was not binding upon him and the said compromise is mala fide and detrimental to his interest and that of the other creditors and prayed that the said compromise should be rejected and the Official Liquidator be further directed to act in accordance with the order dated 8‑1‑

64. So far as the lessee' Hamidur Rahman is concerned he has contended that the compromise was legal and binding and highly beneficial to the Company and the creditors and submitted that the order dated 8‑1‑64 having merged in the appellate Courts' decision could not independently be enforced and it was the appellate order which is binding upon the parties and further that the new amendments suggested by the Official Liquidator were not called for and were not permissible. The plea taken by the creditor Abdul Aziz is that the order of the appellate Court was an ex pane order and as such was not binding on him. It appears from the memorandum of appeal filed before the appellate Court, Abdul Aziz was shown as respondent No.

2. It is stated in paragraph 5 of the affidavit‑in-?opposition by Abdul Aziz that at the time of hearing of the appeal his lawyer argued the case with the permission of the Hon'ble Judges and opposed the appeal. Subsequently in another paragraph the said Abdul Aziz states that the lessee's lawyer prayed for the withdrawal of the appeal and the creditor was not a party to the compromise and as such the said compromise was not binding on the creditor. The fact that he was shown as a party in the memorandum and the admission in paragraph 5 that his lawyer argued on his behalf before the appellate Court conclusively proves that he participated in the hearing of the appeal and as such now cannot take up the position that the order of the appellate Court is not binding upon him. As stated above, the terms of compromise have been embodied in the judgment of the appellate Court itself. It is only the appellate Court which can modify or review the order passed by it. It is not for me to amend the order of the appellate Court in any way. The position therefore is that the creditor Abdul Aziz is bound by the order of the appellate Court till the same is set aside. This being the position, the said creditor cannot be allowed to contest that the judgment of the appellate Court is not binding upon him. The terms as embodied in the judgment of the appellate Court is not merely those of a compromise between the lessee and the Official Liquidator they are a part of the judgment pronounced by the Court. Therefore, I hold that the creditor Abdul Aziz is bound by the compromise embodied in the judgment of the appellate Court. Now taking up the position of the lessee to the suggested amendments of the Official Liquidator, I find that the objections of the lessee are well founded. So far as the suggested amendments in prayer 2 of the petition dated 16‑2‑65, I find that the words "other articles" is ejusdem generis of the word "machineries" and the lessee will not be allowed to take away at the end of the period of his lease articles other than those relating to machineries and as such no further direction is necessary on this point. So far as the suggested amendments in 3(i) of the supplementary position dated 29‑4‑65, is concerned the appellate order clearly provided for the period 1‑2‑63 till 31‑1‑68, presuming that the incidents of the lease referring to the period 1‑2‑58 to 31‑1‑63 bad already been fulfilled in terms of the lease itself. The appellate order was passed in August 1764 and their Lordships approved the terms for the second period with retrospective effect from 1‑2‑

63. In these circumstances the Official Liquidator is to conform to the terms of the lease obtainable for the period. The debts of realisation for that period will be in accordance with the terms of the lease otherwise any order contrary to that will operate as an amendment of the appellate Court's order which is beyond my jurisdiction. With regard to the suggested amendment in paragraph 3(ii), there is no necessity for any further direction inasmuch as the lessee will not be reimbursed of any sum more than Rs. 30,000 (thirty thousand) for repair in terms of the original lease. So far as the amendment suggested in paragraph 3(iii), as there is no provision in the appellate Court's order, it is to be presumed that the Official Liquidator will himself take steps to take possession of the Rehana Hotel and to realise the dues from the person holding the premises and who are in possession as tenants of the said Hotel and to take all other legal steps in the matter. So far as the amendment suggested in 3(I)(v) is concerned it is superfluous inasmuch as the lessee knows his rights and limitations. If he exceeds the same the ordinary law of the land sufficiently provides the Official Liquidator with the necessary remedy. ' The same observation holds good for the amendment suggested in 3(v) as the suggested conditions relate to the incidence of the tendency itself. In these circumstances, the prayer No. 1 in the first petition dated 16th of February 1965, is allowed. The terms of compromise as embodied in the judgment allowed by the appellate Court on 3‑8‑65 is to be carried out. The lessee is directed to comply with the same immediately and the Official Liquidator is directed to take possession of the Rehana Hotel and to take legal steps to realise the dues of the Company from the persons who are in possession of the premises. Costs of and incidental to this application will come out of the assets of the Company. K. B. A.?????????????????????????????????????????????????????????????????????????????????? Order accordingly.