' MS RUKHSANA AHMAD, J.---Through this single order I would like to dispose of an application under section 151, C.P.C. Filed in all the similar four suits. The defendants through such application have sought amendment in the decree, which was passed by this Court upon an application of compromise filed by the parties in the four suits.
2. Mr. Abdul Qayyum Abbasi Advocate appearing on behalf of the defendants argued that a settlement agreement between the parties was executed on 30-5-2006. However, an application for compromise was filed by the parties and this Court vide order dated 1-6-2006 decreed accordingly. According to defendant the NAB and plaintiff pressurized and forced the defendants to substitute the existing collateral with a high value property in Clifton opposite Park Towers Shopping Mall. However, it was agreed between NAB, the plaintiff, the defendants as well as other Banking Companies, that the property being Plot No,A-1-CF/1-5, Clifton Quarters, Karachi (hereinafter referred to as the property in question) having an area of 1 acre, should substitute all the existing properties mortgaged by defendants. The defendants further asserted that the viability of Plot No,A-1 as alternate collateral was carefully considered by the plaintiff. NAB was requested by the plaintiff to seek and obtain valuation of the said property. It was concluded by the valuer that the said property is worth Rs,2 Billions at Rs,400,000 per square yard, at commercial rates.
Subsequently, the property in question was commercialized under the supervision of NAB and with the specific consent of the plaintiff. It was further argued that the compromise and the settlement was superseded by the letter dated 7-12-2007 reference SMG/P0M/MISC/MAM/1019, which may be read as under:-- "Dear Sir, Sale of A-1 CF 1-5 Clifton Karachi for adjustment of Bank's dues.
Reference is made to the latest decision between NAB, MCB and World Group made in Supersession to the terms related to repayment schedule from 2007 to 2009 mentioned in the compromise agreement 30-5-2006 by virtue of which decision it is mutually agreed that the schedule from 2007 to 2009 mentioned in compromise agreement now stands superseded with the new schedule i,e, The entire payment will now be paid immediately in "one go" by sale of subject plot, you are as such requested to get this latest decision implemented at your earliest so that the entire amount of MCB may stand paid off at its earliest."
3. Learned counsel for the defendants further contended that in view of the fact as stated the schedule of payment from 2007 to 2009 mentioned in the compromise agreement dated 30-5- 2006 was suspended. The letter in question was emphasized that the "new schedule" is the entire payment to be made by sale of the property in question. He further argued that the default clause has, therefore, automatically ceased to have effect. It is further argued by the counsel that the plaintiff persisted in executing the decree in its original form. The defendants, therefore, filed an application under section 19(7) of Ordinance XLVI of 2001. However, the learned Single Judge dismissed the said application by observing that the decree had not been amended. Against such order, the HCAs were filed.
4. He further argued that some of the defendants, who were not party to the above appeals, also filed a suit in Islamabad, wherein, inter alia, declarations the settlement agreement dated 30-5- 2006 between the parties has been superseded, is thus null and void and that the subsequent arrangement dated 7-12-2007 was an outcome of Court consent/settlement agreement and would prevail. The plaint in the afore-said suit was rejected under Order VII, rule 11, C.P.C.
5. It was further argued by the learned counsel for the defendants that after filing of the appeals and the counter-affidavit, on 13-1-2009 by the plaintiff (respondent therein), the substituted property and its acceptance as the alternative to the properties listed in the consent decree and the execution application remained. The learned counsel for the defendants has referred to the following portion of the minutes:-- (2). DG, FCIW, who chaired the meeting, briefed the participants about the purpose of the meeting.
He reviewed the minutes held on 15-12-2008 at NAB Sindh in which it was decided that the bank would take over commercial Plot No,A-1, Clifton Quarter, Karachi opposite Park Tower in lieu of the adjustment of their respective liabilities. He further informed the NBP and MCB have already shown their consent for the proposal whereas ABL and HBL had to give their consent.
(3). The representative of NBP and MCB reaffirmed their consent to take over the property in lieu of adjustment of their liabilities on equitable basis to be decided in due course by NAB and approved by respective Bank management. The representative of ABL informed that their bank is also willing to go along with the consent given by NBP and MCB. Mr. Tariq H. Siddiqui of HBL sought further two weeks time for consideration of the arrangement by the senior management of the bank. It was further decided that payment to other stakeholders other than the bank shall also be taken care of as decided in previous arrangements finalized vide minutes at NBP Headquarters and CDGK."
6. However, learned counsel for the defendants submitted that three officers of the plaintiff/Bank namely Mr. Laqa Sarwar, Mr. Muhammad All Manjee and Ms. Shagufta Perveen attended the meeting at NAB office in Karachi. Hence in the circumstances, the defendants sought amendment in the decree to substitute the Property No,A-1-CF/1-5, Clifton Quarters, Karachi as the collateral under the Decree dated 1-6-2006. Learned counsel also annexed certain documents along with his said application.
7. On the other hand Mr. Mushtaque Memon learned counsel appearing on behalf of the plaintiffs firstly raised legal objections on such application by arguing that the instant application is barred by section 11 C.P.C. And the principles of res judicata would apply. He further argued that the matter raised in the application is the same as earlier raised by the defendants/J.Ds in Execution No,70 of 2007 through C.M.A.No,844 of 2008 wherein it was alleged as under:- `The time for payment has been changed and the entire payment will now be recovered immediately by the sale of Plot No,A-1-CF/1-5, Clifton Quarters, Karachi. Accordingly it is respectfully submitted that the compromise agreement having been superseded."
8. However, according to the learned counsel for the plaintiff the said application was dismissed vide order dated 31-10-2008.. However, the learned counsel for the plaintiff has further pointed out that through instant application the same relief has been sought i,e, "to amend the decree to substitute the property Plot No,A-1-CF/1-5, Clifton Quarters, Karachi as the collateral under the decree dated 1-6-2006."
9. Learned counsel further contended that the said application is barred by Order )0( rule 3, C.P.C.
And further that the judgment and decree passed by this Court on 1-6-2006 has attained finality and cannot be altered or amended at this stage. He further argued that the said application is not maintainable under section 27 of the Financial Institutions (Recovery of Finances) Ordinance, 2001, which provides that "no. Court or other authority shall revise or review or call or permit to be called, into question any proceeding, judgment, decree, sentence or order of a Banking Court or the legality or propriety of anything done or intended to be done by the Banking Court in exercise of jurisdiction under this Ordinance.", as such this Court has become functus officio in this suit after passing the decree.
10. He further pointed out that the owners of the Clifton Property which is sought to be substituted are not parties to the suit and thus the application is not maintainable on this score too. He further contended that the said property as per the defendants/JDs is mortgaged with some other Banks which are not parties to the proceedings.
11. Learned counsel further vehemently denied that the decree-holder pressurized or forced the defendants to substitute the existing collateral and on the contrary it is the defendants who are seeking the substitution of the said property. He further pointed out that defendants/J.Ds have not made payment in terms of the consent decree and are avoiding execution of the decree. He further argued that if the Clifton property has been managed to be commercialized the benefit has accrued to the owners thereof, who are neither identified by the plaintiffs nor they are parties to the proceedings. He further argued that the decree passed by this Court was a consent decree and the defendants/JDs instead of acting according to the decree passed by this Court have violated the terms of the said decree and particularly violated clause (2) which provides payment. He further argued that against the order dated 31-1-2008, whereby the learned Single Judge inter alia held "the correspondence exchanged between the parties could not in any manner modify the terms of the decree". Further "the Clifton property, which is mortgaged with NBP could nct be sold without the consent of the NBP which Bank is not a party before this Court", Special High Court Appeals Nos.321, 336 and 337 of 2008 were filed but such fact has been suppressed. Learned counsel further argued that the quoted portion as alleged by the defendants was neither an agreement nor agreed minutes of meeting. The plaintiff was not provided the original document.
However, he pointed out that the copy of the so-called minutes of meeting placed by the defendants/J.Ds merely shows the attendance and not otherwise. He nevertheless, argued that for the sake of arguments if the same are believed to be minutes of meetings even then the same was subject to approval the respective bank management, which was not done. He finally argued that in view of the submissions made by him, the application merits no consideration and thus prayed for its dismissal.
12. During the course of hearing and in pursuance of Court directions one Muneer Mehmood Attorney of the defendants filed an affidavit placing before this Court, the copies of title documents in respect of the suit Property bearing No,A-1-CF/ 1-5, Clifton Quarters, Karachi, which according to the deponent is the substituted property accepted by the plaintiff for the satisfaction of the decretal amount, and were placed on the file as under:--
(i) Sub-lease Agreement 1/R or A-1 along with possession letter.
(ii) Sub-lease Agreement 1/R or A-2 along with possession letter.
(111) Sub-lease Agreement 1/R or B-1 along with possession letter.
(iv) Sub-lease Agreement 1/R or B-2 along with possession letter.
(v) KBCA-Challan for Rs,48,080.
(vi) KBCA-Challan for Rs,71,049.
(vii) General Power of Attorney in favour of Muhammad Munir from (Directors of Aquatic and MRM Company).
(vii) Mortgage Deed dated 11-9-1999.
(ix) Survey Sheet of City District Government, Karachi.
(x) C.D.G.K-Challan for Rs,20 (Fee for extract and Site Plan).
(xi) Site Plan of amalgamated plot (A-1).
13. Through the said affidavit, the defendants asserted that efforts were not materialized, and according to them all the Creditors/Banks decided to take over the Clifton plot/Property in lieu of adjustment of their liabilities on equitable basis to be decided in due course by NAB. However, the defendants relied upon the following documents which are placed before this Court and according to them the same are entire record/correspondence/decision arrived at between the plaintiff and the other creditors under the supervision of NAB to settle all outstanding of the Banks including plaintiff with the defendants:--
(1) Letter from NAB dated 16-2-2007.
(2) Letter from NAB dated 22-3-2007.
(3) Letter from NAB dated 29-3-2007.
(4) Letter from NAB dated 30-3-2007.
(5) Letter from NAB dated 3-7-2007.
(6) Letter from NAB dated 6-9-2007.
(7) Minutes of Meeting dated 10-9-2007.
(8) Letter from NAB dated 11-9-2007.
(9) Letter from Muhammad Munir to Mr. Sauleh Ahmed Farooqui, City District Government, Karachi dated 12-9-2007.
(10) Letter from NAB dated 11-10-2007.
(11) Minutes of Meeting dated 19-10-2007.
(12) Letter from NAB dated 8-11-2007.
(13) Letter from NAB dated 15-11-2007.
(14) Minutes of Meeting dated 20-11-2007.
(15) C.D.G.K's letter to Director General, NAB dated 24-12-2007.
(16) Letter from NAB to C.D.G.K dated 26-12-2007.
(17) C.D.G.K's letter to Chief Controller of Building dated 27-12-2007.
(18) Letter from NAB to C.D.G.K dated 31-12-2007.
(19) K.B.C.A's letter to Executive District Officer (Revenue) dated 3-1-2008.
(20) C.D.G.K's letter dated 4-1-2008 to its E.D.O (Revenue-1).
(21) Letter from NAB to C.D.G.K, dated 7-1-2008.
(22) Letter from NAB to all concerned dated 8-1-2008.
(23) Letter from NAB to C.D.G.K dated 15-2-2008.
(24) Letter from NAB to C.D.G.K dated 25-2-2008.
(25) C.D.G.K letter to NAB dated 15-3-2008.
(26) Letter from NAB to City Nazim, Syed Mustafa Kamal dated 24-3-2008.
(27) Dawn Advertisement dated 13-4-2008.
(28) Jang Advertisement dated 13-4-2008.
(29) Email from Hanif Sattar dated 7-5-2008.
(30) Email from Noman Hassan dated 7-5-2008.
(31) Email from Irfan Amanullah dated 7-5-2008.
(32) Email from K. Mukarram dated 7-5-2008.
(33) Email from Tariq Alam dated 9-5-2008. (34' Email from Abdul Razzak Vayani dated 9-5-2008.
(35) Minutes of Meeting dated 15-12-2008.
(36) Minutes of Meeting dated 13-1-2009.
(37) Letter from NAB to NBP dated 24-3-2009.
(38) Minutes of Meeting dated 26-3-2009.
(39) Letter from NAB to NBP dated 26-5-2009.
14. The defendants once again reiterated that three senior authorized officers of the plaintiff attended the meetings supervised by National Accountability Bureau, in order to implement the decisions and given their consent to the said decisions.
15. Again on 29th January, 2010, the counsel for the defendants filed statement praying for permission to place on record the page 4 of the Power of Attorney dated 16-8-1999 executed by M.R.M. & Co. (Pvt.) Limited and Messrs Aquatic Corporation (Pvt.) Limited in favour of Muhammad Muneer duly registered with Sub-Registrar T-Division, II-B, Karachi under Registered No,460 in Book No,IV dated 16-8-1999, which was taken on record on the same day.
16. I have heard both the counsel at length and have perused the material placed before me. At the very outset it is observed that according to the defendants the new agreement had superseded to compromise decree, thus execution of the compromise decree could not be ordered by this Court as the compromise decree was no longer in the field having been replaced by the new agreement.
Though the learned counsel for the defendants attempted to show that the compromise decree passed by this Court has been superceded by a letter dated 7-12-2007 in view of the meetings held between the parties, but such arguments were not accepted by Mr. Mushtaque Memon learned counsel for the plaintiffs and disputed the same. It was argued by the learned counsel for the plaintiffs that once a compromise decree on the basis of settlement arrived at between the parties has been passed the same could not be altered/modified unless the consent is obtained. Though learned counsel for the defendants attempted to show various documents in order to fortify his contention but in my humble opinion such attempt remained fruitless as such documents could not be termed to be authenticated documents specially when the plaintiffs are disputing the same and are not accepting them. It is further observed that in the execution proceedings the defendants filed an application to the effect that the execution of the compromise decree could not be ordered as the compromise decree was no longer in the field having been replaced by the new arrangement. Such application was dismissed by the Executing Court and the same was appealed by the defendants, wherein the High Court Appeals were allowed and the case was remanded back to the learned Single Judge/Executing Court for investigation and contemplation under section 19(7) of the Financial Institutions (Recovery of Finances) Ordinance, 2001.
Nevertheless, the defendants have again moved the instant application seeking an amendment in the compromise decree. Nevertheless, the learned counsel for the defendants have failed to satisfy this Court to the effect that when a compromise decree has been passed by a Court, how the same could be amended without the consent of the parties to the proceedings. In any event I would like to refer to a case reported as PLD 2002 Lahore 268 wherein it was held that the status of a compromise decree that such a decree only amounts to an agreement between the parties, superimposed by seal of the Court, wherefore, superimposition of Court's seal does not make compromise decree untouchably sacred. The parties still have the option to amend the terms thereof mutually. Nevertheless, the parties cannot amend the same at their own option or deem the same to have been amended by their agreement. However, in the present case defendant is claiming for its amendment whereas the plaintiff is resisting the same and is praying for dismissal of the present application.
' Therefore, in view of the above discussion I have come to the conclusion that after passing the compromise decree, a party cannot apply for the modification/amendment of such decree unless it is consented by the other party as well and thus the present application merits no consideration, hence the same is dismissed.