' ABDUL RASOOL MEMON, J.---Through this Ilnd Appeal under section 100, C.P.C. The appellants have assailed the order dated 1-10-2012 passed by the IIIrd Additional Sessions Judge Karachi (East) dismissing the appellants Civil Appeal No,165/2012 and maintaining the impugned orde dated 12- 7-2012 passed by the learned Ilnd Civil Judge Karachi (East) in Execution Application No,10/2012, whereby J.Ds were directed to pay Rs,28,69,175 (Twenty eight lac sixty nine thousand one hundred seventy five only).
2. The background of the case is that in March, 2010 the respondents filed a Suit bearing No,326/2010 before this court against the appellants for specific performance, recovery of damages and permanent injunction, during the pendency of the suit parties entered into the compromise, consequently on 21-4-2011 they filed an application under Order XXIII Rule 3 the same was signed by the parties and their advocates which was allowed and suit was decreed in terms of the compromise arrived at between the parties vide Decree dated 21-4-2011 filed as Annexure-E at page 53, terms and Conditions mentioned therein are reproduced as under:-- "The suit coming up on this 21st day of April, 2011 for orders/hearing before Mr. Justice Munib Akhtar, in the presence of Mr. Mustafa Lakhani, Advocate for plaintiff along with plaintiff and Mr. Mian Mushtaq Ahmed, Advocate for defendants Nos.1 to 5 along with defendants Nos.1 to 5; the plaintiff and defendants Nos.1 to 5 having filed a compromise application under Order XXIII, Rule 3, C.P.C. Bearing C.M.A. No, 7290/2011 along with photocopy of compromise arrived at between the Parties on 15-4-2011 duly signed by the parties and their respective Advocate; it is hereby ordered that the suit is decreed in terms of Compromise Application arrived at between the parties Application arrived at between the parties as under:-
(1) That the Builder will pay Rs,6,530,825 (Rupees Sixty Five Lacs Thirty Thousand Eight Hundred and Twenty Five only) to the owners till July 15, 2011 to settle/discharge their claim in above mentioned Suit and the Owners will execute Sub-Lease of Flat Nos.1 and 2 on the ground floor of the said Property in favour of the following nominees of the Builder:
(a) Nominee for Flat No, 1 on the front side of the ground floor---Abdul Rehman son of Muhammad Arif holding CNIC No,42201-0716856-5 .
(b) Nominee for Flat No,2 on the rear side of the ground floor---Naveed Ahmed son of Aijaz Ahmed holding CNIC No,42201-0620526-3.
(2) That the Builder shall handover to Mr. Shoaib A. Burney---One of Mediators, all property related documents in original (used and Obtained from concerned authorities during the tenure of construction of the building) and evidence of all payments made by Builder on behalf of Owners and deducted from the sale consideration of Flat No,4 of the Property within one month from the date of this compromise, which will be handed over to the Owners after complete execution of this Compromise. However, photocopies of the same shall be provided to the owners within 40 days from the execution of this compromise.
(3) That the Builder will deposit an amount of Rs,600,000 (Rupees Six Hundred Thousand only) as required for completion of the balance work in the said building as mentioned in clause 6 of this compromise, with Mr. Shoaib A. Burney before July 15, 2011, who will ensure completion of the said work.
(4) That after the execution of Sub-Leases as mentioned above, the Builder will complete the remaining finishing work in the flat on the ground floor and will hand over possession to the nominees mentioned above.
(5) That in .Case the Builder fails to pay the amount to the owners as mentioned in clause 1 above till July 15, 2011, the Mediators shall sell the , said Flats to any prospective buyer(s) at the prevailing market value within one month, from that date and will pay the amount of Rs,6,530,825 towards the sale consideration of Flat No,4 which the owners have Sub-Leased in favour of the nominee of the builder and a further sum of Rs, 600, 000 required for completion of the balance work in the building and flats in the possession of the owners, to the owners and will pay the balance amount from the sale consideration of the said flats to the persons nominated above by the builder in equal ratio. In case the Mediators could not sell the said flats within one month, the Owners shall be entitled to sell the said flats to any prospective buyer(s) at the prevailing market value and the owners after deduction of Rs,6,5.30,825 and Rs,600,000 required for completion of balance work, will pay the balanced amount to the Mediators who will pay the said amount to the nominees of the Builder in equal ratio.
(6) That following work is remaining in the building, except balance work in the flats on the ground floor, against which the Builder will deposit the money with Mr. Shoaib A. Burney as mentioned in clause 3 above:
(a) Construction of top roof's tower and overhead water tank.
(b) Connection of independent water supply from overhead tank to each flat.
(c) Installation. Of water pump of required horse power for direct water supply from underground, tank to overhead tank.
(d) Water proof treatment and tiling of basement along with repairing of walls.
(e) Completion of kitchen with cabinets, Marble counter, sink and fittings.
(f) Installation of separate 3 phase meters of KESC for each flat and a common 3 phase meter for building with a sub-meter for basement from the common meter.
(g) Completion of washroom fittings of each flat.
(h) Marble fixing of main stairs from 2nd to top floor.
(i) Supporting fence from ground to top floor.
(j) Installation of window grills of flat numbers 3, 5 and 6 occupied by the owners and basement and fancy fence in galleries.
(k) Fixing of glasses of doors of balconies of flat Nos.3 and 5 and proper drainage system in the balconies.
(l) Final colour coat of the building and
(m) Remaining electric connections of building's common points, main entrance, stairs, basement and tower.
(7) That the Builder and the owners wilfully co-operate in execution of this compromise and will ensure timely resolution of this matter.
3. The respondent/D.H. Having got no response towards compliance of compromise decree, filed execution application before this court, but it was returned to him for want of jurisdiction and thereafter the said execution application was filed before the IInd Senior Civil Judge Karachi (East) where the appellant/J.D. No,2 filed objections showing much more amount spending on completion of remaining work of flat and-in adjustment of dues than the amount shown in compromise decree and only an amount of Rs,11,56,131 was shown to be payable to D.H./ respondent. Learned executing court turned down the objections filed by the appellants/ J.Ds and directed them to pay the remaining amount from sale consideration After deducting Rs,65,30,825 and Rs,600,000 required for completion of glance work, to the decree holders/ respondents. The said order dated 12-7-2012 passed in Execution Application was assailed by appellants/J.Ds in Civil Appeal No,165/2012 which was dismissed and both the orders have been impugned in present Appeal.
4. In support of this appeal learned counsel for the appellants has argued that though the scope of the executing court is limited to the extent of contents decree and cannot go beyond it, but where in the implementation of execution of decree, the question of its interpretation is involved, then it is for the Executing Court to examine the relevant record to conclude exact nature of the reliefs allowed to a party on the basis of decree framed in a suit. He has further contended that it is also an established rule that in construing a document one has to read it as a whole and not by picking and choosing a particular paragraph or portion thereof and that substance of the document must be kept in mind and not the form of the document. He has contended that though compromise decree was passed in this case but the fact which remains to be adjudged by the executing court was that the amount incurred on repair was more than Rs,600,000 for which the appellants/J.Ds produced the documentary evidence and in objections stated the said fact on oath that the amount incurred on the repair of flat in question was Rs,917,909' which was not denied by the respondent/D.H. By filing counter-affidavit, therefore, the trial court, so also the appellate court have committed illegality by not considering the said fact, thus the orders of executing court and the appellate court are contrary to law and liable to be set-aside. In support of his contention he has placed his reliance on the cases of Muhammad Afzal and another v. Pakistan International Airlines Corporation (2006 YLR 3074), Anwarul Haq v. Federation of Pakistan through Secretary, Establishment Division, Islamabad and 13 others (1995 SCMR 1505) Rasheed ur Rehman Khan v.
Hussain (PLD 2006 Supreme Court 418), Jehan Khan v. Province of Sindh (PLD 2003 Karachi 691), Karamat Hussain and others v. Muhammad Zaman and others (PLD 1987 Supreme Court 139) and Muhammad Hanif and others v. Muhammad and others (PLD 1990 Supreme Court 859).
5. Conversely, learned counsel for the respondent has argued that the terms and conditions for the decree were agreed upon by the appellants/J.Ds in presence of their advocate and no prayer for review of the decree on any ground including the ground of fraud and misrepresentation was moved and the executing court was bound by the terms of decree and had no power to go beyond the terms of compromise decree, therefore, concurrent findings of the two courts on the same point does not suffer from any irregularity, mis-appreciation of law and cannot be questioned in second appeal. So also jurisdiction vested by the two courts below has been exercised legally and even does not require any interference by exercising revisional powers. In support of his contention he has placed reliance on the cases of Muhammad Aslant v. Member, Board of Revenue (Settlement and Rehabilitation Wing)/Chief Settlement Commissioner and 6 others (PLD 1980 Supreme Court 45) and Muhammad Ijaz and 3 others v. M. Khurshid Malik and 4 others 1986 CLC 2270.
6. I have considered the submissions made by the parties counsel and have gone through the relevant papers on record and consulted the case-law relied upon by learned counsel for the parties as well as the relevant provisions of law. Admittedly no appeal was preferred against original compromise decree passed on 21-4-2011 passed by this court but appellant challenged the order passed in Execution Application No,10/2012 for executing the compromise decree. It may be mentioned here that an order passed in Execution Application does not fall within the definition of decree under section 2(2), C.P.C. But it can be challenged in an appeal which is expressly allowed by section 104 or Order XLIII, C.P.C. Appellants through Civil Appeal under section 104(1)(ff) of C.P.C. Vide Annexure-8, assailed the order dated 12-7-2012 passed in Execution Application directing the appellants/J.Ds to comply with the terms and conditions of compromise decree but said civil appeal was dismissed by the appellate court vide impugned order. It is pointed out here that order passed in appeal. Under section 104, C.P.C. Is not appealable as subsection (2) of section 104, C.P.C. Specifically imposes bar on appeal against order passed by appellate court, as such, this appeal on the face of it is not maintainable from inception. So far the prayer of the appellant's counsel to convert this appeal in revision is concerned, which also merits no consideration for the reasons that in the revision there is limited scope with revisional court to examine and consider if subordinate court appears to have exercised a jurisdiction not vested in it by law, or to have failed to exercise a jurisdiction so vested, or to have acted in the exercise of its jurisdiction illegally or with material irregularity. Learned counsel for the appellants contended that the executing court can interpret the decree and examine the relevant record and exact nature of relief allowed to the parties on the basis of decree framed in this suit, in this regard he has placed reliance on the case of Muhammad Afzal Pakistan International Airlines Corporation (2006 YLR 3074). I have gone through the cited case, there is no cavil with the dictum laid down therein but the facts of the case are quite different from the case in hand. The original decree was passed on the basis of compromise application jointly filed by both the parties which was duly signed by the parties and their respective advocates and considering the above facts this court decreed the suit in terms of ompromise.
7. As per clause-I of the terms and conditions to the compromise decree builder was to. Pay Rs,65,30,825, to the owners till 15-7-2011 to resettle their claim in suit and in lieu thereof owners could execute sub-lease of flat 1 and 2 on ground floor of said property in favour of nominees of builders namely Abdul Rehman (Flat No,1) and Naveed Ahmed (Flat No,2) and as per clause 2 the builder was to hand over all documents relating to properties in original to mediators and all payments made by builder on behalf of owners and deducted from the sale consideration of Flat No,4 of the property within one month from the date of compromise while in clause 3 builder was made " responsible to deposit Rs,600,000 required for completion of balance work in the said building before 15-7-2011 Clause-5 of the terms and conditions of the compromise is based on two parts, in one part thereof mediator was made authorized to sell the said flats at the prevailing market value within one month and under second part of said clause the owners were made authorized to do so in case the mediators could not sell it, which reads as under:-- "In case the Mediators could not sell the said flats within one month, the owners shall be entitled to sell the said flats to pay prospective buyer (s) at the prevailing market value and the owners after deduction of Rs,65, 30,825 and Rs,600,000 required for completion of balance work, will pay the balance amount to the Mediators who will pay the said amount to the nominees of the Builder- in equal ratio".
8. It is pertinent to mention here that the appellants/J.Ds. Themselves filed agreement of sale of suit flat and payment receipt thereof with their objections at Annexure D/1 and D/2 respectively which indicates that they had sold out the flat in sum of Rs,1,00,00 000 (One Crore only) as mediators had failed to sell out the same but the appellants/J.Ds after deducting Rs,9,17,909 on account of finishing and left over construction work of flat Rs,93,000 said to be fees for completion of plan, an amount of Rs,200,000 was retained to be paid for installation of KESC meter and after all deductions only Rs,11,56,131 were offered to be paid to respondent instead of his actual sum of Rs,28,69,175.
9. It is worth to be noted that the deductions shown by the appellants/J.Ds. In their objections to execution application, were not part and parcel of the terms and conditions of the compromise decree, as such both the lower courts have rightly turned down the objections raised by the appellants to execution of decree as the executing court has no power to go beyond the terms and conditions of compromise decree. No material has been brought on record to prima facie show that jurisdiction exercised by the two courts below is contrary to law or they have materially exercised the jurisdiction illegally or unlawfully.
' Consequently not only this appeal but even revision is not maintainable against the impugned order and thus while maintaining the same I dismiss this appeal accordingly.