1. ' ARSHAD NOOR KHAN, J.-By this Revision Application under section 115, C.P.C. The applicants have assailed the legality and validity of the judgment dated 14-9-2007 passed by learned District Judge, Hyderabad in Civil Appeal No,7/2007 (Abdul Ghaffar-Khan v. Zonal Head, National Bank of Pakistan and another), whereby the order dated 22-1-2007 passed by learned VHth Civil Judge & Judicial Magistrate, Hyderabad in Execution Application No,2/1999 in Civil Suit No,227/1983, has been set aside and execution application has been remanded for fresh adjudication according to law.
2. ' The facts leading rise to the present revision application in brief are that respondent filed a suit for declaration and permanent injunction against the applicants, stating therein that he was appointed as officer Grade-Ill in National Bank of' Pakistan and was posted at Qazi Ahmed Branch.
3. It is further stated in the plaint by respondent that after joining his new assignment as OG-III at Qazi Ahmed, the respondent on or before 24-9-1981 due to his private urgent work was obliged to proceed on casual leave and he went to his home town Tando Allahyar where he found his minor daughter suffering from attack of polio as a result of which the respondent rushed to Hyderabad Civil Hospital for treatment which compelled him to request for extension of leave as such he sent telegram on 28-5-1981. As per medical advise, the daughter of respondent needed the treatment of physiotherapy therefore, respondent on 26-10-1981 submitted another application to the Bank for extension of leave. It is mentioned that said practice of extension of leave continued for a long time. On 19-2-1982 when he submitted an application for extension of leave, no response was made by the applicants and finally the respondent was removed from the services because of his unwarranted leaves which constrained the respondent to file the above suit. The applicants were served with the notice of the suit and after service of the notice, the suit was amicably disposed of in shape of compromise and decree to that effect was drawn on 26-9-1987.
4. ' Since the applicants did not abide the terms and conditions of the consent decree as such respondent filed execution application before the learned trial Court which was dismissed being time barred. It is also pointed out that prior to filing of the execution application, the applicants sought amendment in the decree which was allowed vide order by learned trial Court dated 24-11- 1991 but still the execution application was dismissed by the learned trial Court being barred by limitation and the appeal Bled against the said order was dismissed by learned District Judge, Hyderabad vide judgment dated 28-1-1993. The respondent preferred revision application before this Court which was accepted by judgment dated 10-5-2005 by this Court, whereby the execution application was remanded to the trial Court for fresh adjudication in the light of observation made by this Court.
5. ' After remand of the case, the learned Executing Court was of the view that since the respondent did not submit joining report and he had already attained the age of superannuation as such he is entitled only for the pensionery benefits. The respondent being aggrieved and dissatisfied with the .Order 'passed by Executing Court preferred Civil Appeal before the learned District Judge, Hyderabad who vide order impugned herein allowed the said appeal and remanded the matter to the Executing Court to dispose of the same within two weeks from the date of receipt of R&Ps, hence this Revision Application.
6. ' I have heard Mr. Chaudhry Muhammad Ashraf Khan, Advocate for the applicants and Mr. Aftab Ahmed Shaikh, Advocate for respondent.
7. ' Mr. Chaudhry Muhammad Ashraf Khan, Advocate for applicants vehemently contended that in view of the consent decree originally passed by the trial Court, it was incumbent upon the respondent to submit his joining report before the applicants which will be accepted by the applicants but the respondent did not submit any joining report till today therefore respondent is not entitled to claim any benefit in pursuance of clause 1 of the consent decree and at the most he can claim pensionary benefits which too is subject to furnishing of his joining report and since the respondent himself did not follow the terms and conditions of the consent decree, as such the applicant could not be blamed for having violated the terms and conditions of the consent decree.
8. It is further contended that observation made by this Court while remanded the case to the Executing Court is clear and speaks about the submitting of joining report by respondent but inspite of clear and unambiguous wording of the consent decree, the respondent failed to submit any joining report before the applicants therefore, the claim of the respondent could only be treated from the date of his submitting joining report in view of the terms and conditions of the consent decree as well as observation made by this Court in the revision application filed by respondent and since no joining report has been submitted by respondent therefore, the respondent could not be allowed any benefit of the said consent decree.
9. ' Mr. Aftab Ahmed Shaikh, learned counsel for respondent has vehemently contended that this revision application is not maintainable for the reason that judgment passed by learned District Judge is not covered with the term "case decided" as such revision application is not competent. It is further contended that after passing of the consent decree, the applicants did not issue any notification for reinstatement of the respondent therefore, the applicants have wilfully and deliberately violated the terms and conditions of the consent decree as well as direction of this Court. It is further contended that applicants did not respond to the legal notice served upon them regarding their default for not issuing the notification regarding reinstatement of the respondent but the applicants did not pay any heed to the said legal notice. As such respondent was not at fault and the applicants wilfully and deliberately avoided to Issue notification of respondent therefore, order passed by learned District Judge impugned herein is legal and perfect and could not be assailed by the applicants. I ' I have considered the arguments advanced on behalf of the parties and have gone through the material available before me.
10. ' It is not disputed that suit filed by respondent was decreed vide consent decree dated 26-9-1987 by terms of compromise which is usefully quoted here for the sake of convenience: ~
(1) That the plaintiff will be re-instated into the service of Bank from the date of his reporting the duty in the same pay and grade with seniority.
(2) That the plaintiff neither claims nor shall claim any other back benefit excepting the seniority in service for die period intervening between the date of his dismissal and his reinstatement into service.
(3) That plaintiff has no other claim against the National Bank of Pakistan or/and any of its official/ officer excepting mentioned in the Para. No,l supra. He shall therefore, make no claim accordingly.
(4) That the parties shall bear their own costs."
11. ' A perusal of contents of clause 1 of the consent decree shows that respondent will be reinstated into service of the Bank from the date of his reporting the duty in same pay and grade with seniority. The clause 1 of the decree which is sought to be executed by respondent in clear and unambiguous manner speaks about reinstatement of the respondent into service from the date of his report to the duty. The wording employed in clause 1 of the consent decree in any way does not show that the applicants will firstly issue any notification regarding reinstatement of the respondent and in pursuance of the said notification the respondent will submit his joining report but the said contents of the consent decree speaks direct submission of joining report before the Bank authorities without any circular or notification. The clause No,l has been emphatically pressed in the execution application filed by the respondent before the learned lower Court and the said execution application was dismissed on the point of limitation by Executing Court vide order, dated 31-10-1992 and the appeal preferred by respondent against the dismissal of his execution application, before the learned District Judge, Hyderabad also met with same fate vide judgment passed by learned District Judge, Hyderabad on 28-1-1993. Admittedly the respondent preferred Civil Revision Application No,24 of 1993 before this Court which was allowed and the Execution Application was remanded to the trial Court with following observation:-- "I am persuaded to agree with the submission of learned counsel for the applicant. It is held that the learned two Courts below have fallen in error in taking the date of decree as 26-9-1987 instead of 24-11-1991 when the decree was amended and period of one month was fixed for reinstatement of the applicant. The ratio of the judgment of Honourable Supreme Court was not attracted.
12. Consequently, the orders of the learned two Courts below are hereby set aside. The execution application is restored and the case is remanded to the Court of learned Vth Extra Joint Civil Judge, Hyderabad with the direction to proceed with the execution applications in accordance with the law. Since the matter' is very old, therefore, the learned trial Court is directed to pass the appropriate order within one month. The applicant Abdul Ghaffar Khan has already crossed the age of superannuation and now he will merely get the benefits from the date he approached the respondent for reinstatement in service till the date of attaining the age of superannuation. The revision application is allowed accordingly."
13. ' A perusal of the order passed by this Court shows that respondent was already entitled to get the benefit from the date he "approached" the (applicants) for reinstatement in service till the date of attaining the age of superannuation. The observation made by this Court, leaves no room of doubt regarding the approach of the respondent before the applicants for his reinstatement as such, in any way, it could not be stated that the applicants were obliged to issue notification for reinstatement of the respondent but the respondent himself was made responsible for his approach to the applicants by submitting his joining report, which is also the spirit of consent decree. Neither in the consent decree nor in the observation made by this Court in the Revision Application filed by the respondent, it has been observed that the applicants will issue notification for reinstatement of the respondent and the said plea has been raised by learned counsel for respondent for certain motive to shift the burden of respondent upon the applicants because of his non-submission of any joining report before the applicants in pursuance of the consent decree as well as order passed by this Court in revision application filed by respondent. It is therefore, not the matter of any doubt that the respondent was responsible for submitting his joining report before the applicants which admittedly he has not submitted before the applicants as such he himself has violated the terms and conditions of the consent decree as well as observation made by this Court in his revision application.
14. The learned counsel for respondent has stressed that the order impugned herein is not a "case decided" therefore, revision application is not competent. The contention of learned counsel for respondent in my humble opinion is not correct as expression "case decided" is necessarily confined to final order rather it may, in the peculiar facts and circumstances of the case related to any interlocutory order passed at any stage of the proceedings including an interim order requiring application of mind. The said observation has been made by Honourable Supreme Court in a case reported in 2006 SCM R 21. The order impugned herein, in my humble opinion is not hit under section 115,C.P.C.
15. ' After appraisal of the whole material available on record, I am of the opinion that by virtue of consent decree, it was incumbent upon the respondent to submit his joining report before the applicants which admittedly he failed to submit and in view of the observation made by this Court in revision application filed by respondent, again he was directed to approach to the applicants for reinstatement but he again did not approach to the applicants by submitting joining report as such the respondent did not abide the terms and conditions of the consent decree as well as order passed by this Court. The judgment passed by learned District Judge, Hyderabad therefore, suffers from material illegality and infirmity and could not be sustained.
16. ' For the reasons discussed above, the Revision Application is therefore allowed and the judgment passed by learned District Judge is hereby set aside. The respondent will only be entitled to the pensionery benefit from the date of his submission of joining report, which if he desires, may submit within one month from the date of announcement of this order, failing which the matter will be deemed as past and closed chapter.