MUHAMMAD AMEER BHATTI, J. --- This Execution First Appeal is directed against the orders dated 18.09.2010 and 11.10.2010, whereby the objection petition filed by the present appellant in the execution proceedings (filed by the respondent No. 1 for the execution of the order dated 29.07.2009) was dismissed on 18.09.2010 and vide order dated 11.10.2010 the appellant was directed to appear In person in the Court for the compliance of the impugned order.
2. The brief 'facts of the case are that a suit between the parties was earlier disposed of by the learned Trial Court on the basis of the statement made by the learned counsel for the respondent No. 1 and issuance of letter by the department had been verified by the learned counsel for the appellant. Thereafter, the respondent filed the execution of the said order wherein the objection petition was filed by the appellant with a specific objection about the maintainability of the execution petition, as the order passed by the learned Trial Court was not executable. However, the learned Executing Court dismissed the objection petition on 18.09.2010 and subsequently on 11.10.2010, directed the appellants to appear for execution of the order of the learned Trial Court. The crux of the case is that during the pendency of this suit, respondent No. 1/plaintiffs counsel made the statement in that suit that a settlement had been coped up between the department and the plaintiff and for that matter a letter No. 3-7/2007-S, dated 04.05.2009 had been issued. This fact had been verified by the counsel for the defendants Nos. 3 to 5/appellants and on the basis of this letter the counsel for the plaintiff/respondent No. 1 stated that the grievance of the plaintiff had been redressed, hence the suit may be disposed of accordingly. The learned Judge/Trial Court passed the order as under:--- "In view of the statement of the counsel for the parties, since the grievance of the plaintiff has been redressed, as such, the suit in hand is disposed of."
3. The respondent No. 1 filed the execution of this order on 19.04.2010 before the learned Executing Court where the appellant filed the, objection petition. The learned counsel for the appellants contends that the decree was not prepared, therefore, the order alone is not executable. The second contention of the learned counsel for the appellants is that the compromise has not been made part of the order, as such, the decree thereof has not been prepared, hence it was not executable and it could have been at the most, declared as a contract executable through a suit for specific performance.
4. Contrarily, the learned counsel for the respondent No. 1 in his endeavour to support the order of the learned Executing Court, has contended that the statements of both the learned counsels for the parties have been recorded and accordingly the Trial Court passed the order. Though it was for the disposal of the suit, yet being an order of the Court, it must have been honoured, otherwise it amounted to flouting the order of the Court of competent jurisdiction which otherwise constituted contempt of Court Further contends that under Section 36, C.P.C.., the order of the Court is executable.
5. I have heard the arguments of the learned counsel for the parties and gone through the record of the case.
6. Section 2(14), C.P.C. Defines an order and states that the order means the formal expression of any decision of a Civil Court which is not a decree. M a general rule, an Order by a Court of law is found an objective consideration and as such, is a judicial order which contains discussion in question in issue and the reasons which persuaded the Court to pass it.
7. In the light of the definition and the explanation mentioned above, the order required to be executed does not carry any direction, or condition and for that matter is not obligatory for any party. As such, this order cannot be considered an order as envisaged in Section 36, C.P.C. To bind down any party of the suit for its compliance. Therefore, the order passed in the suit having no legal consequence inasmuch as the suit has been disposed of just on whims of the parties because the plaintiff himself made the statement before the Court that his grievances had been redressed The Court has not taken into consideration any settlement nor this settlement has been made part of the Court order nor any terms and conditions have been mentioned for its compliance. Even no direction has been issued for the compliance of the said settlement/letter which purported to have been issued by appellants, hence the order passed by the learned Trial Court does not fall within the ambit of the category contemplating that it must be complied with.
8. In the judgment referred by the learned counsel for the petitioner Muhammad Muzaffar v.
Maqsoodul-Hassan (2006 SCM R 1157). Although this judgment is a leave refusing judgment but in this case the question of law has been determined and proved with remarks which has the binding force according to my understanding and for ready reference, I would like to reproduce the relevant para of the judgment as under:--- Learned counsel stated that as a compromise has been effected between the parties, therefore, the judgment was executable. We enquired from the learned counsel as to whether any decree sheet was prepared his answer was in negative. It is important to note that when the suit was dismissed for want of cause of action and the Trial Court prepared no decree sheet, thus, there was no question of filing execution application nor such an order can be executed".
It has been specifically held in this judgment that unless a decree sheet has been prepared, the question of execution does not arise. It is a question of common sense that the execution is always filed for the execution of decree not the judgment or order and the Hon'ble Supreme Court specifically put the question to the learned counsel appearing in that case whether any decree sheet was prepared and counsel replied in negative. Their lordships have held that no question for filing of execution application has arisen nor such order can be executed. Since the Hon'ble Supreme Court has specifically not only approved the judgment of this Court but also drew their opinion through this judgment 2009 SCM R 1268 (Peer Dil and others v. Dad Muhammad). The Hon'ble Supreme Court after visiting all the judgments on the point held that a compromise decree is a contract between the parties and its breach would give cause of action to the other party to approach the Court to seek remedy. The compromise decree is but a contract with super-added command of a Judge and it was concluded the only option available for aggrieved party was either to file review or to institute a fresh suit So in this case, the Hon'ble Supreme Court declared that the remedy is only to file fresh suit not the execution petition. In the presence of this authoritative judgment of the Hon'ble Supreme Court mentioned ibid, I do not feel any further necessity to indulge myself on this point. So far as the other points are concerned, it has been held in Messrs Amin Cotton Co. Ltd v. Messrs Muhammad Jamil & Co. (PLD 1967 Karachi 795), if the compromise is not made a part pf the order then decree cannot be prepared, hence it cannot be considered as executable.
9. The upshot of the above discussion is that after entering into a compromise and recording the statement in the Court by the learned Trial Court, the suit has been disposed of and the settlement deed has not been made a part of the order. Consequently, no decree sheet was prepared and the order of the learned Trial Co was/is not executable thus the order of the learned Executing Court is against the law laid down by the Hon'ble Supreme Ctt as well as this Court, hence untenable in the eye of law an such set aside. Resultantly, the execution petition of the respondent No. 1 stands dismissed. No order as to costs. /execution petition dismissed.