' MUHAMMAD IQBAL KALHORO, J.---Decree-holder namely Abdul Aziz has filed this execution application against his brother namely Haroon, the judgment-debtor. As per facts, he instituted a Civil Suit No,384/97 for partition, possession, permanent injunction and declaration on the property bearing survey No,S.R.3/15 situated on Frere Road Karachi, which is jointly owned by them. During pendency of the suit both the brothers settled their dispute and agreed to the partition of the property by metes and bounds, and in terms thereof the suit was decided vide order dated 26.12.2012 and decree dated 29.01.013. In this regard Nazir was appointed to inspect the property to determine possibility of its partition in the terms as agreed by the brothers. However, it was also observed in the above order that the property should be sold out on 'as is where is basis' through public notice, if the Nazir decided that it was not partitionable without disturbing the tenants occupying the same.
2. The Nazir filed the report in this respect on 12.03.2013 showing that the property was partitionable on the basis of area only and not on the basis of metes and bounds, unless some alterations, changing the size and dimension of the area for the tenements, took place, hence second option of selling out the property was suggested therein. The decree-holder, however, objected to such suggestion. He insisted on partition of the property. In view whereof, the Nazir was directed to engage services of the certified Architect for his opinion in this regard after physically visiting the property. The Nazir in his report dated 10.10.2013 filed a report of the Architect dated 16th September, 2013, who concluded that division of the property in two equal' portions was not feasible without disturbing the tenants. The decree-holder did not get satisfied with this report either and filed objection thereon. Vide order 11.11.2014, the Official Assignee was appointed with the mandate of employing services of other Architect to look into the issue. He in compliance of the order attached such report with his reference 01/2015 dated 16.01.2015, which indicated that partition of the property in two equal portions was possible. This time the report was objected to by the judgment-debtor.
On 26.08.2015 with the consent of both the parties, the Official Assignee was again tasked to engage a well-experienced Architect to do the job. Imran Associates was engaged for this purpose and his report was filed by the Official Assignee on 20.10.2015 along with his reference, which iterated that the property was partitionable without disturbing the tenants. With his report, the Architect has also filed a proposal of partition in the shape of a sketch showing a wall going through middle of the property.
3. Mr. Mushtaq A. Memon learned advocate for the J.D. Argued in favour of selling out the property, and during his arguments made an offer to the decree-holder to buy his share, if he so desired, or the judgment-debtor be allowed to purchase the share of the decree-holder. Citing reasons in support of his proposal, he stated that the property could not be partitioned by metes and bounds without disturbing the tenements. His view was that this court being executing court could not go beyond the decree by partitioning the property otherwise than by metes and bounds. He in this regard referred to first two reports, which indicate that partition of the property was not a possibility. But before arguing in favour of selling out the property, Mr. Memon questioned the very Maintainability of this application in his contentions. He emphatically urged that the decree sought to be executed was not a final decree but it was a preliminary decree, which under the law was not executable. For the purpose of explaining his point, he read out definition of decree provided in section 2 of C.P.C. And stated that a decree which conclusively determined rights of the parties was a final decree. In his view in suits, for partition of the property, always preliminary decree was passed, whereby some commissioner was appointed to find out whether the property was partitionable or not, followed by the final decree identifying conclusively shares of each sharer.
According to him, in this matter after the decree dated, 26.12.2012 a lot of exercise vis-a-vis partition of the property was required and since such exercise was being carried out in the suit, the subject decree could not be treated as final. Then he referred to several orders passed by the trial court after the decree was drawn to establish his point. Learned counsel in support of his arguments relied upon the citations reported in PLD 1989 Karachi 336, PLD 2013 Karachi 583, 1987 SCM R 1591, AIR 1935 Privy Council 12 and AIR 1952 T.C.
428.
4. Mr. Naraindas C. Motiani learned counsel for the decree-holder spoke in favour of partition of the property by referring to the latest reports of the Architects. His argument on the point of maintainability of this application was that a decree was preliminary when the suit was not completely disposed of but here it was not the case. He urged that after the decree-holder had given up all the prayers in view of the settlement on prayer (a), that is, partition of the suit property and possession of his share to him, nothing was left to be decided. And in terms of the subject decree, his prayer was granted and thereafter nothing was left in the suit to be adjudicated upon.
He stated that appointing Nazir or engaging some Architects for the purpose of partition did not mean that suit was pending or some proceedings for deciding some controversy between the parties qua their rights were yet to be taken in the suit. According to him appointing the Nazir for partitioning the property was essentially in compliance of the decree passed purely on the basis of consent of the parties. He stated that initially efforts were made for compliance of the decree amicably but when the judgment-debtor resisted partition of the property, this application was filed. He in support of -his arguments relied upon the case laws reported in PLD 1989 SC 136, AIR 1963 SC 992, PLD 1963 Karachi 990, PLD 2006 Karachi 126 and 1990 M LD 1189.
5. I heard the counsel for the parties and with their assistance perused the relevant record including the case laws cited by them at the bar. Before me is a situation 'where one brother (D.H.) is adamant on partitioning the suit property and getting possession of his share. The other brother (J.D.) is resolute about selling out the property, and the ground he has pleaded in this respect is that the partition by metes and bounds is not possible without disturbing the tenants and if they are going to be disturbed for this purpose, it will be beyond the scope and mandate of the decree and this Court being executing Court is not competent to go beyond the decree. Before resolving this point, I would like to take up first the objection of the judgment-debtor with regard to the subject decree, so that sphere of this court's power to deal with this execution application could be determined. The decree has been passed in a suit for partition, possession, permanent injunction and declaration filed by one brother in the year 1997 in respect of the property against the other brother who admittedly is in its possession. By means of the settlement between the two brothers, the suit was decreed vide order 26.12.2012. All the prayers except the prayer (a), that is, for partition and possession of his share, were foregone by the decree-holder. In clause 5 of the above order, it is clearly observed by the trial Court that plaintiff agreed to abandon other reliefs in order to get relief stated in prayer clause (a). And his suit in such terms was decreed. Thus his prayer for the partition of the property and his entitlement to possession of his share stands granted and made part of the decree itself. After the suit stands decreed in terms of such settlement, no controversy between the parties qua their right in the property remains to be decided. Therefore, argument of Mr. Memon that this is a preliminary decree because the partition of the property or its sale is yet to take place cannot be subscribed to. Appointing the Nazir or the Official Assignee to do the task with the help of a recognized Architect would not go to establish that some proceedings are still pending in the suit or the suit itself has not been disposed of finally. On the contrary, doing so was the essential requirement of law that was to be followed after the decree for partition of the property was passed. In such a decree a direction to effect the partition has to be necessarily made, otherwise the very decree would be defective. The decree in hand also contains such directions and just because it has this direction would not mean that this is the preliminary decree.
Partition of the property being a technical job always requires some technical expertise to accomplish it. A Civil Court admittedly cannot perform the skill of partitioning the property itself. For which some Expert in the said field has to be engaged. This exercise, however, cannot be construed to establish pendency of the suit, rather, in my view; it is in pursuance of the order to partition the property and it has flown from the decree itself. The rights of the two brothers in the suit property are already settled and there remains no controversy to be adjudicated now. When the parties agree to partition the property and their respective shares in it are already settled, the decree flowing from such settlement, in my hum'ble view, tends to be final. And I have no reason here not to treat the subject decree as final for the purpose of this execution application.
6. The remaining question is that of execution of decree itself. Two brothers are poles apart when it comes to the manner and mode of executing the decree. The decree-holder is asking for partition of the property and the judgment-debtor is in favour of selling out the property and has made a proposal that either the decree-holder should buy his share or he may be allowed to purchase his share. I have examined both of the options. The decree stipulates partition of the property by metes and bounds as a first choice and if it is not possible or feasible without disturbing the tenants, then as a second option its selling on as is where is basis'. Mr. Memon, while pointing to the proposed plan of partition, argued that if the property was partitioned, it would essentially lose its usefulness, for; in his view, erecting a wall in the middle of the property would reduce the size of the main gate and would considerably block the main way making it almost impossible for the tenants to carry in or out the big articles of their use. He made a particular reference to tenancy No,3, which is situated at the end of the subject building and has an area extended to both the side walls of the building, and said that in case of the kartition, this tenancy would be adversely affected. In his view, a wall going through the mid of this area would reduce both the space and convenience for the tenant against which it has been hired for by him. But this argument, in my estimation, does not take into consideration the two latest reports prepared by the two different Architects in favour of partition and the fact that the second option of selling out the property in terms of the decree is to be resorted only when the partition is not possible without disturbing the tenants. The two expert opinions, given by the renowned Architects in favour of the partition of the property which could be made without disturbing the tenants as compared to one against it, leave little room to decide in favour of selling out the property. Much emphasis was laid by Mr. Memon that in any case the partition of the property by metes and bounds was impossibility and since it was so, any resort to the partition would be beyond the scope of the decree. I do not feel to be persuaded by his contention. For the reasons, metes and bounds do not mean that the property is to be partitioned among the shareholders inch by inch and if a single inch of the property is not partitionable, then the whole scheme in tents of metes and bounds would fail. Metes and bounds mean (i) the boundary lines of land, with their terminal points and angles. A way of describing land by listing the compass directions and distances of the boundaries, (ii) the territorial limits of property as measured by distances and angles from designated land marks and in relation to adjoining properties, (these are dictionary meanings). During arguments, nothing was referred to indicate that partition of the property in the above terms was not possible. The two proposals that are in favour of the partition appear to have addressed all the apprehensions shown by the judgment- debtor and have come up with an idea of partition that could be achieved without disturbing the tenants. In presence of such an exhaustive and comprehensive plan for partition of the subject property, the objections raised by Mr. Memon appear to be without any substance. Since the decree-holder has refused to sell out his share, he cannot be compelled to do so; and simultaneously he cannot be deprived of his share indefinitely on the basis of objection to the partition by the other brother, particularly so when the very brother earlier had agreed to the partition of the property and on the basis of his consent the subject decree was passed. For the foregoing reasons, I allow this execution application. Let the decree be executed in the mode and manner as mentioned by the decree-holder at serial No,10 of this application. The official assignee is appointed for this purpose to supervise partition of the property in terms of proposal prepared by Imran Associates, the Architect, which he has filed along with his Reference No,1/2015 dated 20.10.2015, and make sure that possession of share to the decree-holder is handed over to him accordingly.
' This execution application is disposed of in above terms.