C.M. No.533-B/2015.
This joint application under section 151 CPC has been filed on behalf of the decree holder bank and judgment debtors and defendants for amendment of decree dated 12.04.2011.
2. Brief facts are that titled suit was decreed as a consent decree on 13.12.2010 in terms of the settlement agreement dated 09.12.2010 filed through C.M. No.705 B/2010. Subsequently, through mutual application C.M. No.228-B/2011, the payment schedule of the consent decree was modified on 12.04.2011. Again by mutual consent through C.M. No.459/2012, the mortgaged property was transferred from the name of Abdul Jabbar to Ch. Qasim Ali subject to mortgage charge of the decree holder. Now on the request of the judgment debtors, the decree holder bank agreed to restructure the decretal amount in the order dated 12.04.2011. Resultantly, this joint application for the amendment of consent decree in terms of restructuring agreement dated 30.04.2015 has been filed.
3. Learned counsel for the parties at the very outset questioned regarding the maintainability of this joint application under section 151 Code of Civil Procedure, 1908 ("CPC") for amendment of consent decree keeping in view the provision of section 27 of the Financial Institutions (Recovery of Finances) Ordinance, 2001 ("Ordinance") and also for the reason that one of the parties in the restructuring agreement dated 30.04.2015 (Mrs. Naseem Qasim) was not party in the main suit or even original consent decree dated 13.12.2010 and order dated 12.4.2011 was not passed against her.
4. Learned counsel for the applicants argued that consent decree is merely an agreement between the parties super imposed by seal of the Court, therefore, the same can be amended at any time by mutual consent of the parties and can also be passed against a person not party to the main suit or in original consent decree. Reliance is placed on M/s Muslim Commercial Bank Ltd.
Vs. M/s World Automobiles through Proprietor and others (2010 CLD 558), Habib and 8 others vs. Haji Muhammad and 3 others (PLD 1970 Karachi 495) and Water and Power Development Authority through Chairman, WAPDA Lahore vs. Mian Abdul Rauf (PLD 2002 Lahore 268). Adds that though Mrs. Naseem Qasim was not party in the suit or in original consent decree, however, she is the Chief Executive of the company which undertook the liability of the judgment debtors in terms of the first settlement agreement, therefore, decree can be passed through amendment against her under section 153 of CPC.
5. To assist this Court on the above legal question, Mr. Anwaar Hussain, Advocate (Assistant Advocate General) was appointed as amicus curiae. He ably presented the relevant provisions and case law on the subject. He referred to section 2(2), 47, 96, 114, 152, 153 and Order XX CPC to submit that decree including consent decree can only be modified by this Court u/s 152, 153 or 114 of CPC, otherwise, this Court become functus officio to amend the decree which can only be amended by the appellate Court or revisional Court. In support of above proposition, he relied upon Haji Ishtiaq Ahmad and 2 others vs. Bakhshaya and 7 others (1976 SCMR 420), Nizam ud Din and 13 others vs. Ch. Muhammad Saeed and 7 others (1987 CLC 1682) and Moti Lal Banker (dead) by his legal Representative vs. Maharaj Kumar Mahmood Hassan Khan (AIR 1968 SC 1087).
Regarding passing decree through amendment against a person who was not party in the suit or in original consent decree, he submits that once decree is passed subsequently, even application under Order I Rule 10 CPC for impleading party is not maintainable. Reliance has been placed on Muhammad Umar and another vs. Gul Muhammad through L.Rs and 4 others (2010 CLC 397).
6. I have heard the learned counsel for the parties as well as amicus curiae and perused the record with their able assistance.
7. Section 2(2) of CPC defines decree as formal expression of adjudication which conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit. Order XX CPC deals with judgment and decrees. Rule 6 of Order XX postulates that decree shall be in agreement with the judgment. Order XX Rule 3 CPC provides that judgment shall be dated, signed in open Court at the time of announcing it and once signed, shall not afterwards be altered or added to, saved by section 152 or on review. As the judgment can only be altered or added through application under section 152 or review u/s 114 CPC, therefore, decree which is based on judgment can also be amended in the same manner. Section 152 CPC empowers this Court to amend the judgment and decree in case there is clerical, arithmetical mistake or accidental slip or omission in the judgment and decree. Whereas u/s 114 and Order XLVII of CPC judgment and decree can be reviewed on account of some mistake or error apparent on the face of the record. Another relevant provision in CPC under which any defect or error in the proceedings can be amended is section 153 CPC. The word "consent decree" has not been separately defined in CPC and therefore, for all intent and purpose, it will be a decree of the Court and provisions of CPC applicable to a decree will also apply to a consent decree except where specifically excluded such as section 96 (3) CPC which provides that consent decree is not appealable.
8. Similarly section 27 of the Ordinance provides that subject to appeal under section 22 of the Ordinance, no Court or 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. However, the Banking Court may on its own accord or application by any of the party correct any clerical or typographical mistake in the judgment and decree.
9. In the present case, consent decree dated 13.12.2010 was passed by this Court under the Ordinance. The case of the applicants for amendment of the consent decree dated 13.12.2010 modified on 12.04.2011, is not based on clerical or typographical error under section 152 CPC and proviso to section 27 of the Ordinance. Applicants are also not pleading error apparent on record u/s 114 or Order XLVII CPC. It is also not the case of the applicant that there is defect or error in the proceedings justifying the amendment in the decree u/s 153 CPC. The case of the applicants is that after passing of the decree, the parties have entered into a fresh agreement dated 30.04.2015, according to which the payments are rescheduled and judgment debtors and one Mrs. Naseem Qasim agreed to pay back the said liability, therefore, the decree be amended accordingly.
10. There is no cavil with the settled law that consent decree being an agreement, like any other agreement, it is open to the parties to enter into compromise with reference to their rights and obligations under a decree. There is nothing in CPC or Ordinance which prevents parties from entering into such a compromise. However, this will not allow parties to seek amendment of the consent decree by circumventing the mandatory provisions of CPC and the Ordinance. The parties even with consent cannot confer jurisdiction on court to amend decree in contravention of provisions of Order XX Rule 3 CPC and section 27 of the Ordinance.
11. Under section 47 of the Ordinance, the Executing Court can take into consideration events of subsequent agreements and undertakings arrived at between the parties after the passing of the consent decree. In this context, reliance is placed on Industrial Development Bank of Pakistan through Vice President IDBP vs. Messrs Crystal Chemicals Limited through Director/Guarantor Crystal Chemical Ltd. And 9 others (PLD 2009 Lahore 176) where it is held as under:- "Effect of the events, understanding, agreement arrived at between the decree holder and the judgment debtors after the passing of the decree:-- The learned counsel for the applicant judgment debtors submitted that this court may take into consideration events, and agreements and understandings arrived at between the decree holder bank and the applicant judgment debtors after the passing of the compromise decree. The court needs to consider whether subsequent events, agreement and understandings, if any, arrived at between the parties which result in variation, modification and change in the terms and conditions of a decree can be taken into consideration while executing a decree. On this issue the learned counsel for the judgment debtor referred to Oudh Commercial Bank Ltd. Fyzabad V. Thahurain Bind Basni Kaur and other (AIR 1939 (Privy Council) 80), Allah Diwaya and other. V. Allah Diwaya and other (1996 CLC 1399), Fakir Abdullah and other. V. Government of Sindh (PLD 2001 Supreme Court 131). In Fakir Abdullah's case the august Supreme Court of Pakistan held that Executing Court in exercise if its jurisdiction under S. 47 CPC could take into consideration subsequent events even after passing of the decree. Such jurisdiction could be exercised in order to ensure that the process of law might not be abused and the judicial pronouncements should be implemented effectively instead of making them ineffective on account of their inexcusability. In Allah Diwaya and other. Vs Allah Diwaya and others supra it was held that "All questions between parties relating to execution, discharge, or satisfaction of decree would determine by executing court in terms of S. 47 CPC while adjustment and satisfaction of decree would be possible under Order XXI, Rule 2, CPC. Parties were thus at liberty to adjust their rights and liabilities accrued under decree or decree holder can discharge judgment debtor of his obligation under decree". In Oudh Commercial Bank Ltd. Fyzabad. V.
Thakurain Bind Basni Kaur and others it was laid down that the Code contains no general restriction on the parties, liberty of contract with reference to their rights and obligations under the decree. In the absence of express statutory authority it is not possible to regard, Order XX, R.10 as excluding any possibility of parties coming to valid agreement for time to which the court under S.47 will have regard.... In the presence of these authorities which clearly lay down that executing court under S.47 CPC can look into events subsequent to the passing of the decree and give effect to agreements arrived at between the decree holder and the judgment debtors, the court has no doubt that it can look into and implement agreements which have been made by the parties for the satisfaction of the decree subsequent to the passing of decree."
12. The aforesaid judgment also refers to and follow the law laid down by the August Supreme Court in the case of Fakir Abdullah and others V. Government of Sindh through Secretary to Government of Sindh Revenue Department Sindh Secretariat Karachi and others (PLD 2001 SC 131) where it is held that executing court in exercise of its jurisdiction under section 47 CPC could take into consideration subsequent events, even after passing of the decree and such jurisdiction is exercised in order to ensure that process of law might not be abused and the judicial pronouncement should be implemented effectively instead of making them ineffective on account of their inexecutability.
13. The same view was also expressed by the Supreme Court of India in Moti Lal Banker (dead) by his legal representative vs. Maharaj Kumar Mahmood Hasan Khan (1968 AIR (SC) 1087). Relevant extract is reproduced as under:- "Nor does Order 20, Rule 3 affect the power of the executing Court to record and enforce the compromise. Order 20, Rule 3 provides that a judgment once signed cannot afterwards be amended or altered save as provided by Section 152 or on review. The decree is drawn up in accordance with the judgment. The parties cannot by an agreement confer upon the Court the power to amend the decree in contravention of Order 20, Rule 3 or the power to enforce the amended decree. See Pradyumna Kumar Mullick v. Dinendra Mullick, 64 Ind App 302 at p. 308.
Order 20, Rule 3 should be read with Order 20, Rule 11 which shows that after the passing of the decree the Court may order that payment of the amount decreed shall be postponed or shall be made by instalments on such terms as to payment of interest as it thinks fit. The two provisions read together show that a direction for postponement of payment of the decretal amount upon the term that the judgment debtor should pay a reasonable rate of interest is not an alteration of or addition to the decree. We are of the opinion that the compromise of May 29, 1954 as to payment of interest can be enforced in execution proceedings".
14. In view of the judgments cited above, it can safely be concluded that after consent decree, it is open to the parties to arrive at a compromise and unless the consent decree is novated under section 62 of the Contract Act, 1872 ("Act") or the subsequent agreement is beyond the scope of the decree, the Executing Court can take into account those subsequent events and give effect to agreements arrived at between parties for the satisfaction of the decree.
15. So far argument of learned counsel for the parties that because application is with consent of parties, therefore, decree can be passed through amendment against one Mrs. Naseem Qasim, is also mis-conceived. In this suit as well as in the original decree dated 13.12.2011, Mrs. Naseem Qasim was not party and no decree was originally passed against her. Once this Court passed a decree, it becomes functus officio except for amendment of decree as provided under law. Mrs. Naseem Qasim cannot be impleaded even as a defendant in the suit after passing of decree, in view of the law laid down by Division Bench of Sindh High Court in M. Umeir and another vs. Gul Muhammad through L.Rs & 4 others (2010 CLC 397).
16. I have carefully gone through the case law relied upon by learned counsel for the parties, which are based on their own peculiar facts and are not applicable to the facts and circumstances of this case.
17. In view of above discussion, this joint application for amendment of decree is not maintainable and same is hereby dismissed with no order as to costs.
18. Before parting with this order, I acknowledge with appreciation the valuable assistance rendered by the learned amicus curiae Mr. Anwaar Hussain, Assistant Advocate General Punjab.