SHAHID BILAL HASSAN, J. Tersely, the petitioner was the exclusive owner in possession of a duly approved housing scheme from the TMA, Ferozwala under the name and style of Lahore Garden Housing Scheme, situated at Jaranwala Road, Tehsil Ferozwala, District Sheikhupura who entered into an agreement to sell in respect of his some developed and undeveloped land of the above said scheme with the respondent on 01.03.2018 for a consideration of Rs.94 crore; that according to the terms and conditions of the above said agreement the respondent was bound to pay 1/4th amount of total consideration amount and remaining amount was to be paid in 6 equal installments till performance date i.e. 01.03.2019. However, the respondent instituted a suit for possession through specific performance of agreement to sell. On 27.03.2018, the learned trial Court ordered the respondent to deposit the remaining amount of consideration in the Court but the respondent failed to honour the direction and did not deposit the amount in the Court. On 08.06.2018, the respondent/plaintiff filed an application under Order XXIII, Rule 3, Code of Civil Procedure, 1908 apprising the Court that both the parties had arrived at a compromise out of Court and prayed that the suit may be decided in terms of compromise, and on the same day learned counsel for the respondent got recorded his statement before the Court for vacation of stay to the extent of 15 acres 12 marlas land belonging to the petitioner, which was vacated and the respondent paid 5% amount Rs.37,920,330/- of the total sale consideration under clause (b) of the compromise for the purpose mentioned in clause (d) to satisfy the claim of creditors of the petitioner, who had already filed litigation against him (petitioner) as well as against the sold scheme; thus, allegedly the said amount was not price of 15 acres 12 marlas land. On 09.0.2018(sic), the respondent paid amount to the extent of Rs.90,000,000/- to the petitioner under clause (e) of the compromise which was part payment of 1/4th earnest money as the respondent was bound to pay 1/4th amount of the total sale consideration within 50 days but after making this part payment, the respondent started to linger on the matter and did not reach even at the figure of 1/4th earnest money that is why the compromise could not be finalized and this amount was also not the sale price of 30 acres of land but it was part payment of 1/4th earnest money; moreover, purportedly this 30 acres land was not part of the agreement and was not transferable in the name of the respondent. On 09.10.2018, allegedly the stay order was vacated on the statement of the learned counsel for the respondent because the 30 acres land was not part of the compromise. It has been submitted that the respondent did not comply with the compromise as he did not pay the remaining amount under terms of compromise.
The petitioner instituted a suit for cancellation of documents on 03.05.2019 wherein status quo order was passed on 14.05.2019.
After failure of compromise, the learned trial Court passed detailed order on 16.11.2019 directing the respondent for deposit of the remaining amount of Rs.619,486,272/, out of the Rs. 758,406,602/- deducting already paid amount Rs.128,920,330/- after determination of actual sale consideration subject to adjustment at the time of final adjudication of the case. However, the respondent instead of complying with the said order, challenged the same by filing C.R. No.74574 of 2019 before his Court and got suspended operation of the above said order on 09.12.2019 which is still intact and revision petition is pending before this Court. However, the respondent, in the meanwhile, filed an execution petition on the basis of orders dated 08.06.2018 and 09.10.2018 for transferring 30 acres of land and the learned Executing Court vide impugned order dated 26.07.2021 directed the present petitioner to get transferred land measuring 30 acres in response to the received amount of Rs. 9-crores vide pay order No.0208-4533054 dated 20.08.20218, on 09.10.2018. Being aggrieved of the said order, the petitioner has filed the instant revision petition.
2. Heard.
3. Order dated 09.10.2018, execution of which has been sought by the respondent reads:-- `Today the case is fixed for submission of written statement on behalf of the defendant. However, at the very outset learned counsel for the, defendant has stated at bar that compromise has been effected inter-se the parties to the extent of whole property. However, presently an amount of Rs.9,00,00,000/- has been received by the defendant vide pay order No.0208-4533054 dated 20.08.2018, hence, if the stay order may be vacated to the extent of 30-acres land they shall have no objection. Learned counsel for the plaintiff has frankly conceded the contention on behalf of the defendant. Both the learned counsel for the parties have acknowledged the earlier recorded statement vide order dated 08.06.2018 in furtherance of compromise deed Mark-C. Signatures of learned counsel for the parties as well as signature of defendant are obtained on the margin of order sheet as token of correctness. In furtherance thereof the stay order to the extent of 30-acres land is hereby vacated. As per request to come up for making an efforts for remaining compromise and for submission of written statement on behalf of the defendant for 15.11.2018.
Now, the alleged compromise, mutually reached at, between the parties is necessary to be considered, which has been submitted before the learned trial Court in the form of application under Order XXIII, Rule 3 read with section 151, C.P.C. for recording of compromise, which reads:-- 'a) That at the time of execution of questioned agreement of sale, the approximate agreed available land under sale transaction was 1100 Kanals which has now been roughly calculated as 1284 Kanals (subject to final measurement), due to which the agreed sale consideration amount of the sale transaction after deduction of approximate arrears of Rs.405,300,000/- of the already sold units of the scheme (subject to finalization upon providence of actual sales record) has now comes to Rs.75,84,066,02 instead of Rs.54,00,000,00/-. b) That it has been agreed between the parties that the defendant is ready to handover the possession of the entire sold scheme of their agreement of sale to the plaintiff subject to payment of an amount of 5% of the total sale consideration which as per new roughly calculation of the land of the scheme comes to Rs.3,79,20,330/-, receipt of which the defendant hereby acknowledges in presence of this Hon'ble Court through P.O. No. 4213840 dated 05.06.18. c) That it has further been agreed between the parties that upon receipt of above 5% of the actual sale consideration by the defendant, the defendant besides handing over possession of entire assets of the scheme to the plaintiff, will also transfer his ownership of his already sold units in the scheme to the extent of 15 Acre in favour of the plaintiff d) That as the defendant is receiving the above amount of 5% from the plaintiff to satisfy the claims of his creditors who had already filed litigation against him as well as against the sold scheme, therefore, it has been agreed upon that both the parties will jointly make efforts to satisfy all the said claims and pending litigation within 50 days from the date of receipt of above amount of 5% by the defendant out of total sale consideration. e) That upon satisfaction of all the claims and pending litigation in respect of the sold scheme subject to finalization upon providence of actual sales record of the scheme and that of providence of actual measurement of the land of the scheme within the above agreed period of 50 days, the plaintiff will be liable to pay the agreed of the actual sale consideration to the defendant who upon receipt of said earnest amount will be liable to get transfer his ownership to the extent of received earnest amount in the sold scheme in favour of the plaintiff whereafter the rest of the agreement of sale will be proceeded as per its agreed terms till satisfaction of the same. d) That in case despite lapse of above agreed period 50 days, the parties fail to satisfy the pending claims or that of the said any pending litigation due to any reasons, then in such eventuality the said liability, with the consent of the defendant, will be satisfied by the plaintiff and any such payment made by him will be adjusted towards the remaining sale consideration of the scheme and thereafter the rest of the agreement to sale will be proceeded as per its agreed terms till satisfaction of the same. Besides the above, any other pending litigation, if any, will now be the liability of the plaintiff who will manage the same of its own at the cost and expense (inclusive of professional fee of lawyer, court fees and other litigation expenses) of the defendant and in case of non-payment of the same by the defendant, any payment if be made there under by the plaintiff for the satisfaction said litigation, will again be adjusted towards the remaining sale consideration of the scheme. g) That again in case of any dispute in the matter with regard to the above settlement, the same in terms of the original agreed terms of the agreement of sale, be referred to the committee of arbitrators for amicable resolution thereof.
4. Perusal of the above said order dated 09.10.2018 divulges that the same was passed only for vacation of stay order to the extent of 30-Acres land and not more than this; there is no mention in the said order that the said 30-Acres land will be transferred in the name of the respondent/plaintiff in pursuance of amount of Rs.90,000,000/- in terms of compromise Mark-C and even, upon bare perusal, the compromise Mark-C does not find mentioned the above said fact, rather in clause (e) of the said compromise Mark-C, it has been agreed that upon satisfaction of all the claims and pending litigation in respect of the sold scheme subject to finalization upon providence of actual sales record of the scheme and that of providence of actual measurement of the land of the scheme within the above agreed period of 50 days, the plaintiff will be liable to pay the agreed 1/4 of the actual sale consideration to the defendant who upon receipt of the said earnest amount will be liable to transfer his ownership to the extent of received earnest amount in the sold scheme in favour of the plaintiff whereafter the rest of the agreement of sale will be proceeded as per its agreed terms till satisfaction of the same. If we calculate the agreed sale price after deduction of Rs.405,300,000/- of the already sold units of the scheme (subject to finalization upon providence of actual sales record) the same comes to Rs.758,406,602/-, so as per term (e) of the compromise Mark-C, the respondent/ plaintiff was bound to pay 1/4 of the agreed amount, whereas the respondent/ plaintiff has paid Rs.90,000,000/-which in no way is 1/4 of the agreed amount. Moreover, the orders sought to be executed by filing execution petition before the learned trial Court as per section 36 of. the Code of Civil Procedure, 1908, are not executable, because no such order, as stated above, has been passed by the learned trial Court, rather the said orders are only to the extent of vacation of the stay order with regards to certain patches of land.
5. No doubt, a Court is not precluded from getting its order executed when any 'executable order' is passed while adhering to the provisions of section 36 of the Code of Civil Procedure, 1908, which provides that the provisions of this Code relating to the execution of decrees shall, so far as they are applicable, be deemed to apply to the execution of orders; however, here in this case no such order is in field. Beside others, certain instances of executable orders in terms of section 36 of the Code, 1908 are given below:--
1. Ad-interim order regarding status quo.
2. An order disposing of suit in terms of compromise.
3. Undertaking given by a party in Court of law.
4. Order of Service Tribunal.
5. Order with regards to temporary and mandatory injunction.
6. Order for delivery of joint possession
7. A payment order under section 186, Companies Act.
8. Order passed by a tribunal.
9. Order for restitution of possession ante in some cases.
Moreover, in a judgment reported as Bakhtawar and others v. Amin and others (1980 SCMR 89), the Apex Court of the country while defining 'order' with reference to section 2(14) of the Code of Civil Procedure, 1908 has invariably held that:-- `9. At this place reference may be made to section 2(14) of the C.P.C. which defines an 'order' and states that 'order' means the formal expression of any decision of a civil Court which is not a decree". As a general rule an order by a Court of law is founded on objective, consideration and as such is a judicial order which contains discussion of the question in issue and the reasons which prevailed with the Court to pass it.'
6. However, as stated above, in the orders, sought to be executed by filing an independent execution petition, which otherwise was not necessary, because the Court, if considers that the order passed by it is executable, it can get the same enforced/ executed at his own without formal filing of an execution petition as per provisions enunciated in the Code of Civil Procedure, 1908 in this regard, no such dilation was made and the said orders are not founded on objective consideration, rather the same are nothing but have been passed germane to vacation of stay, as has been referred in start of observations of the instant judgment. Even the order dated 08.06.2018 has also been passed with regards to vacation of stay to the extent of 15-Acres 12-Marlas land.
7. Keeping in view the above discussion, it is observed that the learned Executing Court ought to have firstly decided the question of maintainability of the execution petition and then to have proceeded to pass any further order, which exercise has been avoided by it. Thus, the learned executing Court has committed material illegality and irregularity as well as has failed to exercise vested jurisdiction as per mandate of law on the subject. As such, the impugned order dated 26.07.2021 cannot be allowed to hold field, which is hereby set aside by allowing the revision petition in hand.
8. Before parting with this judgment, as this Court has held that the orders sought to be executed by filing execution petition are not executable, the execution petition filed by the respondent being not maintainable stands dismissed as well. No order as to the costs.