' NOOR-UL-HAQ N. QURESHI J.--- Through the instant civil revision, the petitioner seeks relief of setting aside judgment dated 6-10-2010 passed by the learned Additional District Judge, Islamabad and accepting the objection petition filed by the petitioner with further request to restrain respondent No,5 from transferring Unit No,1 of I-Z Plaza, F-10 Markaz, Islamabad in the, names of respondents Nos.2 to 4, without fulfilling the terms and condition of compromise arrived at Banking Court, Rawalpindi.
2. As per facts narrated in the petition, the petitioner sold one Unit No,1 consisting of basement, shop and one flat without roof rights at Plot No,1-Z, Sea .Sun Plaza, F-10 Markaz, Islamabad to respondent No,1 for a total consideration of Rs,90,00,000/- through an agreement of sale executed on 23-8-1999 in which, sale consideration was shown at Rs,47,00,000/- on the request of respondent No,1 and his sons for the reason that they have no justification of excess amount in view of both his sons were Sessions Judges at the relevant time.
' Respondent No,1 filed suit for specific performance of the contract before Civil Court on 3-12-2001 against the petitioner. Simultaneously, they managed to register F.I.R. Against him and FIA on 21-10- 2002, after 11th day of recording statement by respondent No,1 before the Hon'ble Supreme Court of Pakistan, the petitioner was arrested by FIA, when respondent No,1 and his both sons, forcibly and illegally occupied the said unit and since then, they are in possession.
' The said unit was mortgaged with SME Bank. On approach, respondent No,1 also became party during the proceedings before Hon'ble Supreme Court of Pakistan, which recorded his statement that he is ready to pay the entire amount to SME Bank along with all dues, when before the Banking Court, a compromise agreement was effected between the parties mainly on the following basis:-- -
(i) Nazar Hussain Bukhari will deposit the amount payable towards Muhammad Ajmal in view of decision of State Bank of Pakistan. The said amount is deemed to be a decree against Nazar Hussain Bukhari.
(ii) Mian Muhammad Ajmal will depose in favour of Syed Nazar Hussain Bukhari before Civil Judge, Islamabad that title of said Unit No,1 and by that statement, get his name mutated in the record.
The defendant has received the amount and denied the execution of agreement, in favour of Syed Nazar Hussain Bukhari therefore, he by admitting the same through statement before Civil Judge, get it decreed, with such estate will have no concern.
(iii) An amount of Rs,28, 05,189/- deposited in the bank will be paid to the decree-holder Bank. Any deficiency, as a result of settlement with State Bank of Pakistan, will be filled by the objector, who shall have no claim. To clarify that if State Bank reduces his liability, then Rs,28, 00,000/- will cover such situation.
' Objector is admitted to be the decree-holder respecting above referred estate as substitute, as the sale in favour of Bank is not confirmed..
' Decree-holder Bank is bound to redeem the property when other liabilities are required through decision of State Bank.
' After completion of entire process, CDA will be bound to mutate the property in favour of Syed Nazar Hussain Bukhari and the case registered. With FIA now pending before Special Judge (Central) is an incumbency upon objector to get it disposed of and he will not pursue.
' Allegedly, the petitioner was brought from judicial lock up before Civil Judge in handcuffs, when his statement was recorded, whereby he stated that case may be decreed on the terms of compromise already arrived at Banking Court, but instead whereof, learned Civil Judge, by consent statement, decreed the suit on the basis of compromise and that plaintiff would step into the shoes of defendant so far the liability on suit property are concerned.
' The suit decree was conditional and the suit for specific performance is a preliminary decree in nature, therefore, the court does not become functus officio and retains control over the terms and conditions of decree and not free from all kind of liabilities, respondent/plaintiff have to fulfil the conditions first then, he will be able to transfer the suit property on the basis of decree. Respondent No,1, without fulfilling the conditions, filed execution petition praying mutation for suit property in his name from the name of petitioner. The 'petitioner, CDA and SME Bank filed objection petition under section 47, C.P.C. Against the said execution petition contending that execution petition cannot proceed without paying the amount to SME Bank and also to withdraw the F.I.R. From FIA, which are the main ingredients of compromise in the Banking Court and the statement of the petitioner in Civil Court, in which, the petitioner categorically stated that decree be passed in terms and conditions of compromise executed in Banking Court.
' Learned Civil Judge dismissed all those applications with cost of Rs,500/- on each objection petitioner and the learned appellate court, dismissed the appeal by judgment dated 6-10-2010.
Therefore, the present Civil Revision has been preferred.
3. Learned counsel for the petitioner, while reiterating the contents of the civil revision, argued that private respondent admitted liability in view of, decree of Banking Court against respondents before .Civil Court. After ten days of decision, the petitioner was arrested by FIA, when there was pressure and compulsion upon him to bow down before ill-wishes. He referred pages 57 and 58, whereby para-1 and 2 of the said compromise deed executed before Banking Court, which positively gives a view that petitioner will get his statement recorded before Civil Judge on the same day and will admit the execution of documents shown in plaint. He also referred page-40., an order dated 21-10-2003 passed by learned Civil Judge/Judicial Magistrate (Section 30), Islamabad, who contrary to the very statement of the petitioner recorded by him, ignored a very material aspect referencing therein the compromise thereby decreeing the suit for which, he has extended no objection on the basis of compromise arrived between the parties before Judge, Banking Court, Rawalpindi. He further argued that for compromise between the parties arrived before Judge, Banking Court, essential ingredient whereof was to accept the document i,e, agreement on the basis whereof, suit filed by private respondents is an integral part of that compromise. He argued that while referring relevant para of said agreement to sell, which provides first party i,e, petitioner agreed to sell the second party i,e, respondent No,1 has also agreed to purchase the said unit without roof rights. He emphasized that there are two disputes existing between the parties, which again erected, when respondent No,1 and his both sons denied to deposit the rest amount as payable towards SME Bank for which, suit was filed before Banking Court and respondent No,1, by virtue of that compromise deemed to be in place of the petitioner, as encumbrances were entirely shifted to him, which he is now denying to pay. Another point of difference between the parties is that after decree, it is going to be misinterpreted and private respondents are now misinterpreting it by taking into consideration the entire unit along with roof rights being their property after getting it mutated as well as they are now denying the withdrawal of the case and therefore, respondents have illegally occupied the room constructed over roof, which cannot be claimed by them, hence such claim is illegal. He relied upon 1988 CLC 2236, which provides a legal principle respecting conditions of compromise. Same is reproduced hereunder:-- "3. Compromise decree.--- When a date was fixed under a compromise for doing a certain act, Court, held, had no power to deviate from same because it was an essential condition of compromise itself which can be varied if at all by parties. Themselves by their mutual agreement and could not be varied by Court".
He also relied upon case-law reported in 1990 CLC 11, which too, is regarding compromise and the same is reproduced hereunder:--- "Compromise under Rule 3, Order XXIII, C.P.C. Cannot be repudiated after having enjoyed benefit of compromise. Party to a compromise must bear burden of compromise after having enjoyed its benefit. Permission to a party to repudiate burden of compromise after enjoying its compromise would amount to allowing him to approbate and reprobate. Party to a compromise cannot be permitted to plead that a compromise is valid to the extent it benefits him and serves his purpose but invalid to the extent it burdens him with liabilities---Held: It was most inequitable and unjust to allow respondent to deny or repudiate compromise as in circumstances of case equitable doctrine of estoppel and waiver would clearly operate against him".'
4. Learned counsel for respondents argued that there are concurrent, while entertaining revisional jurisdiction, there is a limited scope provided by section 115, C.P.C. And Court cannot go beyond the decree. He relied upon 2004 CLC 1979 Karachi. While referring section 47, C.P.C., he relied upon 1994 SCMR 22 providing a limited scope of revisional court. He argued that there was a total consideration of Rs,47,00,000/- and not beyond that and it is totally wrong assertion that there was a total consideration of Rs,90,00,000/- Agreement dated 21-8-1999 shows the amount to be Rs,47,00,000!- and the petitioner while executing the said agreement, clearly mentioned that property is free from all encumbrances, committed fraud by concealing the fact that all encumbrances over the property are on SME Bank, therefore, the commitment of answering respondent to deposit the amount was under protest and the said amount was deposited as such.
It is a liability of the petitioner to accept judgment and decree passed by the competent court of jurisdiction and it is a consent decree on compromise, which has attained finality and in view of agreement, there is no binding upon answering respondent for liabilities of agreement. He also argued that already over payment has been 'made beyond the agreement. Application under section 12(2), C.P C. Moved by the petitioner was dismissed. After that, a civil suit was filed, that too, was rejected under Order VII, Rule 11, C.P.C. Appeal preferred by the petitioner was dismissed.
Neither any illegality was highlighted nor irregularity. There was a claim of State Bank introduced by which, a request was made to get remission, which is still pending with the State Bank and the proceedings before. Banking Court were not party of proceedings before Civil Court and in view of statement of parties, judgments passed by both the courts below are well-reasoned, hence require no interference.
' So far the concurrent findings, he submitted following case laws:--
(a) 2007 SCMR 368, (b) 2007 SCMR 236, (c) 2006 SCMR 1304, (d) 2008 YLR 867, (e) 2008 YLR 875, (f)
2006 YLR 476, (g) 2005 YLR 13:24, (h) 2005 YLR 2286, (i) 2005 YLR 2752, (j) 2005 YLR 2529, (k) 2005 YLR 3084, (1) 2005 CLC 368, (m) PLD 2004 Lahore 488, (n) 2004 CLC 441.
5. Arguments heard at length from both the sides. Record has been minutely perused.
6. I would like to discuss first the very consent order passed by the court on 21-10-2003, which is solely based upon statement of the petitioner. Therefore, it will be just and appropriate to submit here the very statement recorded by the learned trial court on the very day, when compromise was arrived between the parties before Judge, Banking Court. Fallowing the statement recorded by the learned trial court on 8-10-2003, Mian Muhammad Ajmal, respondent No,1 stated that "under orders of Banking Judge, Rawalpindi, I am appearing in custody for recording of statement. Suit of the plaint is admitted. I have no objection if same is decreed. Detailed statement regarding compromise has been reduced in writing before Judge, Banking Court, Rawalpindi. In the light of said statement, if the suit is decreed, I have no objection".
' Statement of Azam Khan, agent of SME Bank/respondent No,4 was also recorded to the extent of relationship between the, Bank, compromise between both the parties and liabilities were reduced in writing.
' Statement of Muhammad Sharif, Deputy Director, Assistant Management-II, CDA, Islamabad was recorded to the extent that the suit is decreed whereby the plaintiff if replaced as co-sharer/co- allottee in place of Mian Muhammad Ajmal, defendant No,1, then they have no objection.
' While .Referring the order, it appears that suit has been decreed in terms of statements of defendants Nos.1, 2 and 4 with directions to defendant No,2 to substitute the name of plaintiff Nazar Hussain Shah as co-allottee/co-sharer in place of Mian Muhammad Ajmal in the record with regard to Plot No,I-Z, F-10 Markaz, Islamabad, subject to the payment of all dues according to the rules and regulations of CDA and plaintiff would step into the shoes of defendant No,1 so far the liabilities on suit property are concerned.
7. From bare perusal of order referred above, it becomes crystal clear that suit has been decreed in view of statement of defendant No,1 i,e, the petitioner in the instant petition, as such, if anybody misinterprets it, that will be considered as fault on his part and from the statement of the petitioner, up to the agreement executed between the parties will be considered in sequence to each other.
8. If otherwise, if suit is considered to be decreed by taking out the statement of the petitioner, then there will be no decree deemed to be executed and particularly when the petitioner himself has agreed to decree the suit and decree must be in consideration with the agreement and not beyond that. Therefore, it has two aspects:
(a) The suit is to be decreed to the extent of its averments and prayer;
(b) The decree of suit is the continuity of compromise arrived between the parties before Banking Court and same shall be considered as integral part of instant compromise between the parties, which resulted into the order dated 21-10-2003.
(c) The court, while decreeing the compromise suit, cannot sit beyond the statement of petitioner recorded by the court and cannot be considered as a part finding beyond that statement and thereby entitles private respondents even beyond the contents of the suit filed by them, which mainly based upon the agreement to sell dated 21-8-1999 executed between both the parties as an important essence of it, whereby both the parties agreed to sell and purchase the unit without roof rights. Also in view of statement, there appears a compromise arrived between the parties before Judge, Banking Court, Rawalpindi as a part of subsequent compromise, which is agreed upon hence, neither the suit nor agreement executed on the basis of suit or compromise arrived between the parties before Judge, Banking Court, Rawalpindi, can be excluded from the compromise decree passed by the learned trial court. Under such circumstances, it was incumbent upon the learned trial court to pay consideration towards such an aspect, exclusion whereof, is entirely an illegality. On the contrary, all the applications under section 47, C.P.C. Moved by all the parties must have been considered by the learned trial court even not appealed for without obeying the compromise decree entirely private respondents cannot be permitted to pick and choose their favourable parts of compromise and the parties against them being excluded merely for the reason that same are not part of consent and compromise decree passed by the learned trial court.
9. It is necessary to point out here that yet the decree is not prepared in terms of compromise, which is essentially to be prepared by incorporating all the terms of compromise or consenting features from either side.. Failure to prepare the decree invalidates the order dated 21-10-2003.
Therefore, it is one of the factor pricks in my mind that unless a decree incorporated, therein the essential ingredient of compromise, the execution whereof by mutating the record in favour of respondents is ipso facto illegal carrying no weight unless all the terms of compromise are executed by rephrasing the decree still having no final shape according to the terms of compromise, based upon the statement of petitioner.
10. The decree defined in section. 2(2), C.P.C. Requires formal expression of adjudication, conclusively determines the rights of parties with regard to controversies in the suit section 2(2), C.P.C. Is reproduced hereunder:- "(2) "decree" means the formal expression of an adjudication which, so far as regards the Court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit and may be either preliminary or final. It shall be deemed to include the rejection of a plaint [the determination of any question within section 144, and an order under rules 60, 98, 99, 101 or 103 of Order XXI] but shall not include:
(a) any adjudication from which an appeal lies as an appeal from an order, or
(b) any order of dismissal for default".
' From bare reading of definition of "decree", it becomes crystal clear that conclusively, the rights of parties are to be determined, which in the instant case, is totally lacking on the part of both the courts below that they ignored very essential requirement of law.
11. Likewise, while referring section 47, C.P.C., the question arising between the parties to the suit for which, the decree was passed, are to be determined by the Court executing the decree, not by a separate suit, therefore it is the duty of the executing court to determine all these questions arising between the parties by applying judicial mind. Section 47, C.P.C. Is reproduced hereunder for convenience:-- "47. Questions to be determined by the Court executing decree.---(1) All questions arising) between the parties to the suit in which the decree was passed, or their representatives, and relating to the execution, discharge or satisfaction of the decree, shall be determined by the Court executing the decree and not by a separate suit.
(2) The Court may, subject to any objection as to limitation or jurisdiction, treat a proceeding under the section as a suit or a suit as a proceedings and may, if necessary, order payment of any additional court-fees.
(3) Where a question arises as to whether any person is or is not the representative of a party, such question shall, for the purposes of this section, be determined by the Court".
' The learned executing court, while entertaining the application under section 47, C.P.C., totally misinterpreted the legal proposition developing in the mind while referring both the above section, the failure thereof, creates reasons for interference.
12. Section 99, C.P.C. Provides that decree not to be reversed or modified for error or irregularity, not affecting merits or jurisdiction. Keeping in mind such a legal analogy, the decree though not to be reversed or modified, but in case, when very essentialities of the decree require to be incorporated therein as apparent from statement of respondent No,1 on record, was incumbent upon the executing court to determine.
13. Though the order passed by the learned trial court, while accepting the compromise, such essentialities were not mentioned in the said order or clarification whereof, which must have been followed while preparing the decree as defined in section 2(2), C.P.C. And guidelines F provided by section 47, C.P.C.
14., So far the concerti of concurrent- findings, I have gone through all the authorities referred in support thereof, which positively infer that scope of revisional court while interfering concurrent findings by the High Court in revisional jurisdiction is very limited while exercising powers under section 115, C.P.C., unless such concurrent findings of facts are observed to be misreading or non- reading of record and violation of principle laid down by the superior courts.
15. Therefore, I am of the view that both the courts below, while entertaining the applications moved to the learned trial court under section 47, C.P.C. And the learned appellate court, have totally failed to appreciate very factual position as discussed above its legal effect thereby erroneously delivered order and judgment dated 21-10-2003 and 6-10-2010 respectively. Hence, I am of the 'opinion that both the courts below have over looked to consider the issues involved gravely, discussed above and failed to appreciate the facts, law and documents available on record, nor they have taken into consideration the cruciality involved legally or factually.
16. Therefore, I feel that strong material is available to interfere into the decisions of both the courts below. With such observations, I set aside both the orders referred in para supra and remand the case to the learned trial court for re-consideration of the applications moved to it under section 47, C.P.C. In view of my above observations and to proceed further in accordance with law from the stage where it was left.
17. The instant Civil Revision is disposed of accordingly.