MUHAMMAD AMEER BHATTI, J. --- This petition assails the order dated 12.06.2009 passed by the Additional District Judge, whereby it has been held that order passed by the learned Trial Court allowing the withdrawal of a suit on the basis of compromise was an executable order, therefore, objections raised against the execution of such order were dismissed, culminating in this Writ Petition.
2. Precisely stated the facts of the case are that a suit for possession through partition of the suit property jointly owned by the parties was filed by the present respondent No. 2 & 3. This suit was contested by the present petitioner and his mother by filing the written statement. A similar type of suit was also filed by the petitioner and his mother and written statement was also filed by present respondents No. 2 & 3. Both the suits were consolidated, however parties of the suits entered into a compromise and compromise deed was prepared and submitted in the Court and the learned Trial Court after recording the statement of the parties and keeping in view the compromise deed (marked 'A' on 14.11.2002), therefore, dismissed the suits of the parties as withdrawn through compromise. Consequently vide order dated 14.11.2002, the suits of both the parties were dismissed as withdrawn. After about four years, on 14.10.2006, the respondents No. 2 and 3 filed an execution petition of the said decrees. The petitioner contested the execution petition by submitting the reply and raised the legal objections about the maintainability of the execution petition. The Executing Court vide order dated 01.02.2007 dismissed the execution petition, against which a revision petition was filed by the respondents and learned Additional District Judge/respondent No. 1 vide order dated 12.06.2009 allowed the revision petition and remanded the case back to the learned Trial Court for decision on merits. This order has been assailed through this Constitution petition on the legal questions; First, the compromise decree was not prepared hence not executable. Second, since the compromise has not been made part of the order, as such, the decree thereof had not been prepared, hence it was not executable. Thirdly, point urged by the learned counsel for the petitioner that both the compromises have been principally executed but since it has not been made part of the decree and no decree sheet has been prepared, it could have been at the most declared as a. Contract executable through a suit for specific performance. The question of limitation has also been urged by the learned counsel for the petitioner and for that matter, he has filed a separate revision petition No. 879/2010 which is outcome of the application firstly submitted before the learned executing Court and then before the first Appellate Court. It is contended-that since the order of the learned Trial Court has been passed on 14.11.2002, for which the application for execution of petition has been filed considering it as a decree on 14.11.2002, which is hopelessly time-barred as per settled law the first application for execution has to be filed 'within three years from the date of decree.
3. On the other hand, learned counsel for the petitioner contended that the, question of limitation has not been decided by any Court, it is prerogative of the respondents to face this foremost question before the Court of first instance so that their rights of appeal or revision shall be protected. The contention. Of the learned counsel for the petitioner to this extent has force, however, it will be seen after considering the fate of the other legal questions raised by the learned counsel for the petitioner. The question of limitation will be decided thereafter. In response to other legal questions the learned counsel for the respondents submits that the compromise has been tendered in the Court and statements of both the parties have been recorded and accordingly the order has been passed. Though it is for withdrawal of the suits but since this is order of the Court, it must have been honoured otherwise it amounted to flouting the order of the Court of Competent jurisdiction which otherwise constitute contempt of Court. Further contends that the judgments referred to by the learned counsel for the petitioner are leave refusing judgment of the Hon'ble Supreme Court and for that matter the Supreme Court has held that leave refusing orders or judgments are not authoritative pronpuncements and that shall not be considered precedent.
4. I have considered the arguments of the learned counsel for the parties and have gone through:the record of the case as well as the case-law referred by the learned counsel for the parties.
5. 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, hence it cannot be considered leave refusing order which has held by the Hon'ble Supreme. Court in PLJ.1982 SC 373 (Haji Kadir Bux.v. Province of sindh and another, where it has been held that the leave granting order shall not be considered an authoritative pronouncement. The other judgments on the point of law 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 of the order then decree cannot be prepared, hence it cannot be considered as executable.
6. 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 suits have been withdrawn and order was passed "dismissed as withdrawn" and the compromise deed has not been made a part of the order. Consequently, no decree sheet was prepared and the order of the learned Trial Court was/is not executabte thus the order of the learned Revisional Court is against the law laid down by the Hon'ble Supreme Court as well as this Court, hence untenable in the eye of law and declared as illegal, without lawful authority. Resultantly, the order of the learned Trial Court is restored. No order as to costs.
7. Since the execution petition has been declared not maintainable on other compelling grounds, it would be pointless to discuss/determine the question of limitation at this stage. Writ petition is allowed. .