ZAFAR AHMED RAJPUT, J.---By means of this order, I intend to decide C.M.A. No.6820 of 2021 and Official Assignee's Reference No.11 of 2021.
2. The plaintiff has filed the instant suit for declaration, cancellation, partition, administration, accounts and permanent injunction against the private defendants Nos.1 to 5 in respect of six immoveable properties described fully in paras. 5, 6 and 18 of the plaint, claiming therein that the properties described in paras 5 and 6 of the plaint were owned by his deceased father, namely, Syed Ahmed Mustafa, who was husband of the defendant No.1 and father of the defendants Nos.2 to 5, while property referred to in para 18 of the plaint was purchased by the defendant No.3 from the funds and finance of their said deceased father. During pendency of the instant suit, defendant No.1 (Mrs. Tauqir Jahan Mustafa) died on 06.09.2014.
3. On 13.4.2015, a preliminary decree was drawn o in this suit in respect of two properties mentioned in paras 5 and 6 of the plaint in compliance of the order, dated 13.2.2015, whereby the learned Official Assignee was appointed as an administrator for the purpose of conducting proper inquiry and investigation of the accounts. Subsequently, parties entered into a settlement agreement and filed C.M.A. No.15096 of 2020, under Order XXIII, Rule 3, C.P.C., which was allowed by this Court vide order, dated 24.12.2020, in terms of the compromise/ settlement agreement, directing the office to draw a decree and forward the same to the administrator/ Official Assignee for further compliance.
4. As per the settlement agreement, private defendants Nos.2 to 5 surrendered their rights in immovable property described in para No.6 of the plaint (Plot bearing No.D-31, Block-9, Clifton, Karachi) in favour of plaintiff and agreed that Official Assignee being administrator shall transfer/mutate said property in favour of the plaintiff. The plaintiff and defendants Nos.2 to 5 further agreed for the sale of immovable property referred to in para No.5 of the plaint (Plot No.D- 173, Block-5, Clifton, Karachi) on "as is where is basis" to one Abdul Hafeez son of Muhammad for a total sale consideration of Rs. 13,00,00,000/- through Official Assignee being administrator and the sale consideration to be distributed amongst the defendants Nos. 2 to 5. The plaintiff under said settlement unconditionally withdrew his claim on the alleged bank accounts of the deceased Syed Ahmed Mustafa and Tauqir Jahan Mustafa. Subsequently, second decree was drawn on 01.01.2021 in terms of aforementioned settlement agreement.
5. Thereafter, listed C.M.A. was filed on 07.02.2012, whereby defendant No.3 has sought directions to Official Assignee to comply with the compromise decree, dated 24.12.2020, by releasing the payment of sale consideration to the defendants Nos. 2 to 5 as per Sharia and also handover the physical possession of the immovable property referred to in para No.5 of the plaint to its buyer.
Official Assignee has filed the listed Reference in response to said C.M.A. wherein he by referring the cases of Sohail Ahmed Rana v. Munir Ahmed Rana and 3 others (2019 CLC Note 7) and Muhammad Talib v. Muhammad Sarwar Naz and another (2019 CLC 623) has submitted that through listed application, the parties are pressing for the implementation of the decree without filing an execution application before this Court; hence, this Court may pass an order directing the parties to file execution application if they like to seek implementation of the decree and/or this Court may pass an appropriate order as deem fit and proper in the circumstances of the case.
6. Heard the learned counsel for the parties as well as learned Official Assignee and perused the material available before me.
7. From the perusal of the aforementioned case-law, it appears that in the case of Sohail Ahmed Rana, a compromise decree was satisfied by the Nazir of the Court without filing execution application by the decree-holder, on the application filed by an advocate who was not authorized in that behalf by the decree-holder. The Court observed that the Nazir acted without jurisdiction on the wilful mala fide persuasion of the advocate and executed sale-deed, which was liable to be cancelled. While in the case of Muhammad Talib, the decree-holder took the case file to the Nazir and managed to get report from him and filed application for order thereon from the Court. The Court observed that no direction was issued for the decree-holder to appear before the Nazir and that for the execution of the decree, the decree-holder was required to file execution application to enforce his right under decree of the Court. Having gone through both the cases-law, I am of the view that the same being on distinguishable facts are not applicable on the facts of the case in hand.
8. Before dilating upon the issue in hand, I deem it appropriate to explore term "decree". Section 2(2) of the Code of Civil Procedure, 1908 (the "Code") defines it as under:
(2) "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 and the determination of any question within section 144, and an order under rule 60,98,99,101,103 of Order XXI but shall not include? a) any adjudication from which an appeal lies as an appeal from an order, or b) any order of dismissal for default.
Explanation:-- A decree is preliminary when further proceedings have to be taken before the suit can be completely disposed of It is final when such adjudication completely disposes of the suit, it may be partly preliminary and partly final.
9. From the perusal of the above provision, it reflects that in general there are three types of decrees; (i) Preliminary decree, (ii) Final decree and (iii) Partly preliminary and partly final decree. A decree is the final decision given by the court after determining the rights of the parties in a dispute. The explanation attached to the Section 2(2) of the Code says that "A decree is preliminary when further proceedings have to be taken before the suit can be completely disposed of It is final when such adjudication completely disposes of the suit, it may be partly preliminary and partly final." In certain situations, the court cannot give its final decision without conclusively determining the rights of the parties on a particular issue. The Code provides for passing of preliminary decree in the following suits:
1. Suits for possession and mesne profits (Order XX, Rule 12)
2. Administration suits (Order XX, Rule 13)
3. Suits for pre-emption (Order XX, Rule 14)
4. Suits for dissolution of partnership (Order )0C, Rule 15)
5. Suits for accounts between principal and agent (Order XX, Rule 16)
6. Suits for partition and separate possession (Order XX, Rule 18)
7. Suits for foreclosure of a mortgage (Order UV, Rules 2-3)
8. Suits for sale of mortgaged property (Order XXXIV, Rules 4-5)
9. Suits for redemption of a mortgage (Order XXXIV, Rules 7-8)
10. The above list; however, is not exhaustive and a Court may pass a preliminary decree in cases not expressly provided for in the Code. Normally, preliminary decree is passed when adjudication decides the rights of the parties with regard to all or any of the matters in controversy in the suit leaving room for further inquiry to be carried on. It does not completely dispose of the suit and it is passed in those cases in which the Court has to first adjudicate upon the rights of parties and it is succeeded by a final decree. It may be observed that the rights so determined from the preliminary decree are conclusive in nature and in that limited sense a preliminary decree is final; however, the Court then makes a further inquiry to settle all the issues and gives its final decision, which is a final decree. When the preliminary decree is passed, the Court would not become functus officio and would retain control over the action even after the decree; as such, the suit remains pending till such time a proper final decree is passed and right of parties are determined.
In the case of Shankar Balwant Lokhande (Dead) v. Chandrakant Shankar Lokhande (AIR 1995 SC 1212), the Court has observed that "a preliminary decree is one which declares the rights and liabilities of the parities leaving the actual result to be worked out in further proceedings. Then, as a result of the further inquiries conducted pursuant to the preliminary decree, the rights of the parties are fully determined and a decree is passed in accordance with such determination which is final." It may also be observed that a preliminary decree and a final decree are both distinct and independent entities. If a question arises as to whether a decree is preliminary or final, it has to be decided by a reference to the decree itself. A decree is preliminary when further proceedings have to be taken before the suit can be completely disposed of It is final where such adjudication completely disposes of the suit. Reliance in this regard may be placed on the case of Ali Muhammad Brohi v. Haji Mulammad Hashim (PLD 1983 Karachi 527) and Syed Abdul Majid v.
Choudry Manzoor (1987 CLC 617).
11. There can be more than one preliminary decree in a suit wherein it is required to be passed. In the case of Phoolchand v. Gopal La! (AIR 1967 SC 1470), a suit for partition of joint family property, a preliminary decree was passed by the trial Court specifying the shares of all the parties. However, before the final decree could be passed, father and mother of the plaintiff died. A dispute arose with respect to the shares as the plaintiff's brother claimed the share of his father on the basis of a will. The trial Court decided the dispute by redistributing the shares indicated in the initial preliminary decree. Matter went up to the Supreme Court. The Court observed that "there is nothing in a Code of Civil Procedure which prohibits passing of more than one preliminary decree, if the circumstances justify the same and it may be necessary to do so". In the case of Ganduri Koteshwaramma v. Chakiri Yanadi (2011 9 SCC 788) the Court has observed that "the final decree is always required to be in conformity with the preliminary decree but that does not mean that a preliminary decree cannot be altered by the Court, before final decree is passed. Such an alteration is justified in the event of changed circumstances."
12. It has been held by the Hon'ble Supreme Court of Pakistan in the case of Syed Mehdi Hussain Shah v. Mst. Shadoo Bibi and others (PLD 1962 SC 291) that "in a suit for administration the relief to be granted is that the estate of the deceased is to be administered under the decree of Court.
This means that the Court will assume the functions of an administrator; it will realize the assets, will discharge the debts and legacies, will take an account of the income of the property and will distribute the assets amongst those entitled to it. This is the relief to be granted appears also from form 41 in Appendix A, Schedule 1 to the Civil Procedure Code." It has also been observed in the case of Nutan Chandra Mahajan v. Srimati Charu Bala and others (PLD 1965 Dacca 557) in a suit for partition that "if upon a proper construction of the terms of the Solehnama (compromise) it appears that something more is yet to be done, then the Solehnama though embodied in a decree could not be looked upon as the basis of a final decree." It has further been observed that "decree embodying the Solehnama as its part, is in the nature of a preliminary decree and it requires to be made final in due course."
13. In the instant case, it is an admitted position that earlier a preliminary decree was drawn in compliance of order dated 13.02.2015, whereby Official Assignee was appointed as an administrator of the properties left by the deceased. Thereafter, a compromise decree was drawn in terms of settlement reached between the parties, which was forwarded to the Official Assignee under the Court's order for "further compliance". Directions of the Court for "further compliance" denote that further proceedings i.e. transfer of suit property and distribution of sale proceeds amongst legal heirs of the deceased in accordance with sharia, are required to be taken effect before the suit can be completely disposed of. As such, the compromise decree in continuation of earlier preliminary decree, embodying the terms of compromise as its part in this suit for administration, is in the nature of a preliminary decree and it is required to be made final in due course. Therefore, I am of the view that no execution application in the instant case is required to be filed by the parties to execute the later decree, in respect thereof; the Court has already directed the Official Assignee for compliance of the said decree.
14. In view of the above facts and discussion, the listed applications allowed as prayed and the Reference is answered accordingly.