' SHAKEEL AHMED BALOCH, J.---This appeal under section 15 of the Balochistan Rent Restriction Ordinance, VI of 1959 is directed against the order dated 11th August, 2014 (hereinafter referred as "the impugned order") passed by learned Senior Civil Judge-I/Rent Controller Quetta, (hereinafter referred, as "the learned Rent Controller), whereby the objections filed to the execution application by the appellants were overruled/dismissed.
2. Facts of the case are that the respondents being the owners/landlords of shops bearing Nos.104 and 105 situated at Prince Road, near Rahat Cinema Quetta, measuring 188, 179 Sq. Ft. Filed an eviction application under section 13 of Balochistan Urban Rent Restriction Ordinance-VI 1959 against the appellants before the learned Rent Controller. However, the said eviction application was disposed of vide order dated 4th April 2012 with the consent of both the parties, in the following terms:-- "Called: counsel for applicant present, counsel for the respondent Miss Iram Mehmood is present.
In the meanwhile both the learned counsel have reached to the consensus that the applicant agreed to rent out the premises in question to respondent for eleven (11) months with the condition that after that he shall vacate the premises in question in case of non-extension of agreement, further they also agreed that any alteration or extension of premises in question would be made with the prior permission of landlord. In this regard the signatures of both learned counsel for parties have been obtained upon the daily diary sheet as token. With the above proposition the application is disposed off accordingly.
3. Subsequently, the shops in question remained in possession of the appellants. However, on 18th April 2014 the respondents filed an execution application seeking ejectment of the shops in pursuance of the consent order. The appellants filed objections to the execution application within the meaning of section 47 read with Order XXI, Rule 99, sections 94 and 151, C.P.C. After hearing arguments, the learned Rent Controller overruled/dismissed the objection petition of the appellants, where after instant appeal has been filed.
4. Learned counsel for the appellants contended that the eviction application was disposed of in terms of compromise between the parties, but no decree-sheet was drawn; that in the absence of a decree-sheet the execution application was not maintainable; that the disposal of the eviction application on the basis of consent of the parties does not fall within the definition of a decree under subsection (2) of section 2 C.P.C.; that after expiry of the stipulated eleven (11) months the respondents continued receiving rent, thus the consent order stands impliedly recalled and fresh statutory tenancy has come into existence.
5. Learned counsel for the respondents contended that the matter has been disposed of by the trial Court on the basis of compromise, which has not been challenged; that same has attained finality; that the appellants are liable to vacate the shop in question; that it was obligatory for the trial Court to draw the decree sheet and if the same has not been drawn, the respondents cannot be punished for the act or omission of the Court.
6. Heard the learned counsel and perused the record. The admitted feature of the case is that the respondents being landlords filed an eviction application against the appellants, but during pendency of the same the parties entered into settlement outside the court and with mutual consent the respondents had given eleven (11) months period to the appellants on the condition that on expiry of the term the appellants shall vacate the premises in case of non-extension of agreement. On the basis of above consensus/settlement the learned Rent Controller disposed of the eviction application, vide order dated 4th April 2012, but due, to omission/inadvertence, the learned Rent Controller did not draw the decree sheet.
7. I am conscious of the fact that where no decree sheet is drawn and the eviction application is disposed of in terms of compromise/ settlement, the consent order does not fall within the definition of a decree as defined under subsection (2) of section 2, C.P.C. It is settled law that it is a decree and certainly not a judgment which is executable. The legal term "Decree" has been defined under section 2(2), C.P.C., which reads as follows:-- "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-- any adjudication from which an appeal lies as an appeal from an order, or
(6) any order of dismissal for default...
8. The terminology of this statutory provision shows that in general, a decree amounts to the formal expression of a decision conclusively determining the rights of the parties with regard to all or any of the matters in controversy. The statutory provision of sub-rule (2) of Rule 1 of the Order XLI, C.P.C.
Provides as follows:-- "The memorandum shall set forth, concisely under distinct heads, the grounds of objection to the decree appealed from without any argument or narrative; and such grounds shall be numbered consecutively."
9. From the above two statutory provisions, it would become apparent that the word "decree" is not only limited to a decree-sheet drawn on prescribed form rather it has been used in a larger sense.
If the term "decree" is confined to only a decree-sheet drawn on a form, it will create hardships as in such, a formal decree-sheet, neither the arguments of the parties nor the facts of the case and even the reasons of the court are not mentioned rather all these are found mentioned in the order or judgment of the Court, hence while passing the final judgement or order it is binding upon the Court to draw a decree-sheet and the plaintiffs/respondents should not suffer on the basis of non- drawing of the decree sheet by the court. It is painfully noted that while passing the final consent order, the learned Rent Controller has failed to order for drawing the decree-sheet in accordance with the consent order dated 4th April 2012. However, such error or omission on the part of the learned Rent Controller is rectifiable in view of the golden principle of law that a party should not suffer for the act or omission of the court. Reliance in this regard is placed on the case of Shaukat Ali v. Muhammad Sharif, 2013 CLC 1558, relevant portion whereof is reproduced herein below:- "It is evident on the record that the learned trial Court miserably failed to draw up a formal decree-sheet in accordance with the judgment dated 23-6-2011. This deficiency was also noticed by the learned appellate court in the impugned judgment. Needless to say that it was incumbent upon the learned trial Court to prepare a proper and complete decree-sheet in line with its judgment. Requirement of Order XLI, Rule 1 of the Civil Procedure Code, 1908 to the effect that copy of the decree shall be accompanied with the memorandum of appeal is a mandatory provision certainly rectifiable in the interest of justice following the golden principle of law that a party cannot be penalized for the act or neglect of the court. In such circumstances the learned appellate court itself ought to have required the learned trial Court to prepare correct decree- sheet and call upon the appellant to file its certified copy in the court to comply with the requirements of Order XLI, Rule 1 of the Civil Procedure Code, 1908. It is astonishing that instead of doing the needful the learned appellate court granted the appeal through the impugned judgment. It is also on the record that the petitioner after filing this Civil Revision also lodged an application to the learned trial Court seeking preparation of the decree-sheet but the same has been declined vide order dated 1-10-2012 on the ground that no such direction was ever passed by this Court."
10. It is concluded that the execution application filed by the respondents for execution of the consent order dated April, 2012 was not maintainable as no decree-sheet was draw in pursuance of the same; that the objection raised by the appellants to the above extent was sustainable and that the Executing Court has wrongly rejected/overruled the objection raised by the appellants about maintainability of the execution application.
For the above reasons, the appeal is accepted and the impugned order dated 11th August, 2014 is set aside. The learned Rent Controller is directed to draw decree-sheet in pursuance of the court order dated 4th April, 2012. After drawing of the decree-sheet, the respondent may file the execution application afresh. The appellants are held at liberty to raise/file the available objections to the execution application and if any objection is raised/filed by the appellants, the same should be decided by the Executing Court on merits in accordance with law.