SAYED ZAHID HUSSAIN, J. In a suit for rendition of account instituted by the respondent against the petitioner, a compromise was arrived at between the parties out of the Court, which was produced in Court on 30.3.2002 Mark-C/1 and the suit was disposed of in terms thereof. For the execution of the said order execution proceedings were taken out by the respondent, which petition was, however, dismissed by the executing Court on 5.6.2002 taking the view that since there existed no decree execution proceedings were incompetent. That order was assailed by the respondent by instituting a revision petition which was later converted into appeal and decided by the learned Additional District, Judge, Lahore on 2.12.2002 who took the view that such an order was executable and the execution proceedings were competent. Setting aside order of the executing Court the matter was remanded by him "to proceed with the execution proceedings in accordance with law".
This order has now been assailed through this revision petition by the defendant in the suit.
2. It is contended by the learned counsel that since no decree was prepared by the Trial Court while dismissing the suit in terms of the compromise, no executable decree was in existence nor any execution proceedings were maintainable under the law. It is contended that the Appellate Court has acted erroneously and illegally in reversing the order passed by the executing Court. Reliance in this context has been placed upon Sindh Road Transport Corporation vs. Major (Rtd.) S.M. Ali Zaheer Khan (1991 SCM R 425), (Babu) Sheonandan Prasad Singh and others vs. Hakim Abdul Fateh Muhammad Raza and another (AIR 1935 Privy Council 119) and Laraiti Devi vs. Sia Ram (AIR 1957 Allahabad 820). Contrarily, the learned counsel for the respondent in his endeavour to support the order of the learned Appellate Court has contended that even such an order which is in the nature of an undertaking can be enforced by the executing Court and dismissal of the execution petition by the executing Court was unwarranted by law. Hassan Masud Malik vs. Dr. Muhammad lqbal and others (1995 SCM R 766), Mehar Zulfiqar Ali Babu and 3 others vs. Government of Punjab through Secretary, Local Government and Rural Development, Lahore and others (1997 SCM R 117), West Pakistan Paints Mills (Pvt.) Ltd. Vs. Muhammad Ashraf Shagufta, Additional District Judge, Lahore and others (1998 SCM R 380) and an unreported judgment of the Honourable Supreme Court in Muhammad Ibrahim vs. Muhammad Munir Bhutta (C.P.L.A. No. 1985 of 1996) have been relied upon by him to support his contention.
3. The material on the record has been perused with the assistance of the learned counsel for the parties and considered.
4. There is no denial of the fact that compromise Mark-C/1 was arrived at between the parties which was produced before the Court and the suit was disposed of in terms thereof dismissing the same on 30.3.2002. The terms of the compromise are clearly stated in Mark-C/1. Whereas certain payment had to be made by the petitioner according to the time schedule mentioned therein, the respondent/plaintiff had to perform his part. Whether any decree was drawn by the Trial Court in terms of the compromise Mark-C/1 is not the point. Compromise is admitted which became part of the order, which stipulated the.Withdrawal of the suit by the respondent. Under section 36 of Civil Procedure Code, 1908, the provisions of the Code relating to the execution of decree are also applicable to orders. Even if there was not decree in existence an order disposing of the suit in terms of the compromise is very much there, binding upon and operative qua the parties. In Kilachand Devchand and Co. Vs. Ajodhyaprasad Sukhanand and others (AIR 1934 Bombay 452), it was observed that if the Court had jurisdiction to make the order it had necessarily the power and jurisdiction to enforce the same and the law does not allow its machinery to be clogged in this respect. Likewise in Ranjit Singh Hazari and others vs. Juman Meah and another (PLD 1961 Dacca 842) secticn 36 of the Civil Procedure Code was considered by the learned Division Bench of the then High Court of Dacca (East Pakistan) and it was observed that the provisions regarding execution of decree were applicable to orders as well. Thus, besides the reasoning advanced by the learned Additional District Judge on the strength of the precedents referred to oy him in his order, the above-mentioned precedents also support the view of the Appellate Court. Reliance of the learned counsel upon Sindh Road Transport case (supra) is not apt inasmuch as decree passed in the precedent case was admittedly beyond the scope of the suit and was held to be in executable, whereas in the instant case it is not so, rather the terms of compromise Mark-C/1 are admitted and even some suit has also been filed by the petitioner on that basis. There are, however, allegations and counter-allegations by the parties attributing breach of the terms of the compromise to the other. According to the learned counsel for the petitioner a sum of Rs.
4,00,000/- had already been paid by the petitioner and despite that the respondent failed to honour his part of the agreement and commitment. On the other hand the learned counsel for the respondent vehemently controverts such an assertion and states that not a single penny has so far been paid by the petitioner in pursuance of the compromise. Even this disputed issue can be raised before the executing Court which shall resolve the same in accordance with law after affording. Due opportunity to both of them.
As a result of the above the judgment of the learned Additional District Judge, Lahore does not call for any interference by this Court. The revision petition is accordingly dismissed. Let the parties cause their representation before the executing Court on 18.3.2002, who will then proceed in the matter in accordance with law.