' Through this appeal, appellant impugns the order, dated 27-2-1998, passed by the Additional District Judge, Lahore, whereby the objection petition under Order XXI, rule 23(2) read with section 151, C.P.C., filed by the judgment-debtors and respondent No,10 Messrs "Star Rugs", to the extent of respondent No,10 "Star Rugs" was accepted and the name of respondent No,10 was ordered to be deleted from the proceedings of the execution of the decree and to its extent injunction order was also withdrawn.
2. Brief facts of the case are that appellant Saeed Ahmad Chaudhry filed a suit under Order XXXVII, rules 1 and 2, C.P.C. Against BISCO Knit-wear (Pvt.) Limited (proposed to be called Landmark Pvt.
Limited) and 9 others, for recovery of 10 million advanced to the defendants-respondents as loan.
A compromise deed was executed, which was placed on the record and exhibited as C.1. On the basis of the said compromise the Court decreed the suit vide judgment and decree, dated 24-3- 1997 by the learned Additional District Judge. Thereafter the execution petition of the decree was filed by the decree-holder. During the pendency of the said execution petition, application under Order XXI, rule 46 and Order 39, rules 1 and 2, C.P.0 was moved with a prayer that the quota of category 338 of Messrs BISCO Knitwear (Pvt.) Limited (proposed to be called Landmark Knitwear (Pvt.) Limited) for the year 1998 and the performance, if any, to be allocated to them for the year 1997 through Pakistan Hosiery Manufacturers Association North Zone, Lahore, and quota of category 338 of Messrs Star Rugs as member of Pak Sea Association, New Garden Town, Lahore, as quota in existence on their books of more than 4100 dozen and performance of 1997, if any, be ordered that the aforesaid firms shall not be allowed to sell or transfer their quota of 338 to the extent of 5500 dozen which is balance of the appellant towards them as per judgment and decree, dated 24-3-1997. It was further prayed that Export Promotion Bureau, Garden Town, Lahore be directed that the quota of 338 of textile of the aforesaid firms shall not be transferred to anybody except to the appellant or his nominee in writing in view of the aforesaid judgment and decree of the Court by Messrs Star Rugs, Landmark and BISCO Knit.
3. By order, dated 17-1-1998, the Additional District Judge (Duty Judge) issued the notice to the respondents for 21-1-1998 and till then it was ordered that status quo with regard to the quota in question shall be maintained subject to notice.
4. The judgment-debtor (Messrs Star Rugs) filed the objection petition to the effect that Messrs Star Rugs has no concern with the decree nor were they party to the compromise hence the impleading of "Star Rugs" and issuance of stay order with regard to its quota is uncalled for as well as illegal; the stay has been obtained by misstatement of facts. Further, it was contended that as per terms of the compromise the completion of decree requires some reciprocal undertakings which the decree-holder has failed to fulfil on his part. Lastly, it was contended that time for fuilfilment of some conditions had not come because 30-6-1998 was still awaited.
5. The objection petition was resisted on behalf of the decree-holder with the assertion that the judgment-debtor was required to deposit the decretal amount in compliance to the provisions of Order XXIII, C.P.C.; that Sh. Shahzad Ilyas, Proprietor of Star Rugs Company is one of the judgment- debtors and he is, therefore, responsible for satisfaction of the decree and the disputed quota has been transferred to "Star Rugs" just to frustrate the compliance of the decree by BISCO Knitwear with mala fide intention. It was further added by the decree-holder that under Order XXI, rule 46, C.P.C. The property of the judgment-debtor lying in possession of a third person can also be attached for the satisfaction of the decree.
6. After hearing the parties, the learned trial Court passed the impugned order. Hence this appeal.
7. During the pendency of the present appeal, this Court passed the order, dated 2-3-1998, through which the respondents were restrained from selling/disposing of the textile quota Category-338, transferred from the name of Messrs Landmark Knitwear to Messrs Star Rugs. This order was modified vide order, dated 13-7-1998 and it was observed that respondents Nos.1 to 10 to furnish the security bond in the sum of Rs,1,00,00,000 (One crore rupees) to the satisfaction of the Executing Court by 20th July, 1998.
8. At the outset, the learned counsel for the respondents contends that no question arising between the parties in the suit in which the decree passed or their representatives relating to the execution, discharge or satisfaction of the decree, has been determined by the Executing Court under section 47, C.P.C. As Messrs Star Rugs was not a party to the suit, compromise decree and the execution petition, therefore, the present appeal is not maintainable under the law. Further contends that the order has been passed on the application of the appellant under Order XXI, rule 46, C.P.C.; in this view of the matter also the appeal is not competent. On merits, it is contended that the decree was awarded against the BISCO Knitwear (Pvt.) Limited (now Landmark Knitwear) and 9 others, therefore, no order could have been passed against Messrs Star Rugs who was not a party to the suit or consent decree. Further contends that the respondents Nos.1 to 10 in compliance with the order of this Court, dated 13-7-1998 furnished the security bond in the sum of Rs,1 crore to the satisfaction of the Executing Court, therefore, the appeal has become infructuous. The learned counsel further argued that the execution petition has been dismissed.
9. On the other hand, the learned counsel for the appellant contends that the objection petition was filed under Order XXI, rule 23(2), C.P.C. In pursuance of the notice issued by the Executing Court, therefore, the impugned order is appealable as some question relating to the execution of the decree has been decided under section 47 of the C.P.C. Reliance has been placed on the cases reported as R.M.A.R.A. Adaikappa Chettiar and another v. R. Chandrasekhara Thevar PLD 1947 PC 279, M. Desikachariar v. Ramachandra Reddiar AIR 1951 Mad. 56, Lachhoo v. (Firm) Munnilal Babu Lal AIR 1935 All. 183 and Gopal Das and another v. Ishar Das and others AIR 1932 Lah.
376. Further contends that the order of the trial Court is not warranted because the decree was passed on the basis of compromise but it later on transpired that appearing on Form No,40594 of 2500 dozen of category 338 was found fictitious and proof thereof from the concerned quarter has been produced, but the respondent later on sold -Jut 1000 dozen quota to somebody else, whereas the remaining 4100 dozen quota was transferred in favour of his son i.e, respondent No,3 and in the name of new company Star Rugs and this is tantamount to frustrate the compromise decree.
10. I have heard the learned counsel for the parties and perused the record with their assistance.
First question for determination by this Court is whether the impugned order; dated 27-2-1998 was passed by the learned Additional District Judge between the parties to the suit in which the decree was passed, or their representative, relating to the execution, discharge or satisfaction of the decree as contemplated under section 47 of the C.P.C. And, therefore, the same is appealable. The admitted position on the record is that the respondents have filed the objection petition on the execution petition filed by the appellant under Order XXI, rule 23(2), C.P.C. In pursuance of the notice issued to them under Order XXI, rule 22, C.P.C. There was no determination of the objection petition filed by the respondents. Had this objection petition been taken up and decided by the Additional District Judge, the order could have been subjected to appeal. The position on the record is that the decree was obtained against BISCO Knitwear (Pvt.) Limited and others and not against Messrs Star Rugs. The order has been passed by A the Court on the application of the decree-holder under Order XXI, rule 46, C.P.C. Through which order the objection petition to the extent of Messrs Star Rugs has been accepted and the name of Star Rugs has been deleted from the proceedings of the execution of the decree. This being so, the order under Order XXI, rule 46, C.P.C. On the application of the decree-holder is not appealable. The judgments cited by the learned counsel for the appellant are not applicable to the facts and circumstances of the present case. In case of Lachhoo AIR 1935 All. 183 it was observed that the order was on an, application under section 47, C.P.C. And not under Order XXI, rule 58 and in that eventuality it was held that the order was appealable. In the case of Gopal Das and another AIR 1932 Lah. 376 (supra) the same principle was reiterated and it was observed that the objection was really coming under section 47, C.P.C. And the same was appealable and therefore, the appeal was competent. In the case of R.M.A.R.A. Adaikappa Chettiar and another PLD 1947 PC 279 (supra) it was held that the order related to the execution, discharge or satisfaction of the decree within the meaning of section 47, C.P.C. And, therefore, was appealable.
11. For all intent and purposes the impugned order, dated 27-2-1998 was not passed under section 47, C.P.C., therefore, I am constrained to hold that the same is not appealable.
12. Even otherwise, the suit was filed against BISCO Knitwear (Pvt.) Limited (proposed to be called the Landmark Knitwear (Pvt.) Limited) and 9 others. Simply because Sheikh Shehzad Ilyas, respondent No,3, was a share-holder in the Star Rugs was no ground to implead him in the execution petition and obtain the order dated 17-1-1998. The impugned order, dated 27-2-1998 to the extent of acceptance of the objection petition of Messrs Star Rugs and deletion of the name of Messrs Star Rugs from the execution of the decree and issuance of injunction order, is fair and justified. As far as the remaining judgment-debtor BISCO Knitwear and other respondents are concerned, they are bound by the compromise decree, dated 24-3-1997. Even otherwise, the interest of the appellant has been safe-guarded by this Court vide order, dated 13-7-1998 wherein the respondents Nos.1 to 10 have been directed to furnish security bond in the sum of Rs,1 crore to the satisfaction of the Executing Court, which order has been complied with. In this view of the matter, there is no force in this appeal, which is dismissed.