' AJMAL MIAN, J.-This High Court Appeal is directed against the order, dated 15th November, 1982 passed by Nasir Aslam Zahid, J. In Suit No, 365/78, on C. M. A. No, 2680/79. The brief facts leading to the filing of the above appeal are that the appellants' predecessor-in-interest Abdul Razzaq (hereinafter referred to as the managing agent) was acting as the managing agent for Trust Ceramic Industries (hereinafter referred to as the Trust) under a managing agency agreement of 1969 for a period of 20 years. The above agreement was terminated on 29th April, 1978 by the Trust.
After that the Trust filed the above suit on 29th April. 1978 for accounts and injunction. In the above suit the Trust also filed an application (C. M. A. No, 1812/78) for restraining the managing agent from
(i) encashing the Khas Deposit Certificates worth of Rs, 16 lacs, (ii) withdrawing the amount of Rs, 10 lacs deposited with U. B. L. a Khas Deposit, (iii) from operating any account with the Bank. The above application was allowed by an order, dated 30th April, 1978. After that an order, dated 16th May, 1978 was passed, whereby the official Assignee was appointed as an interim receiver of the Trust factory, but the managing agent was permitted to withdraw an amount of Rs, 5,12,090 out of any of the accounts of the Trust. It seems that after some time, the parties entered into a compromise and filed an application under Order XXIII, rule 3, C. P. C. Which was accepted by the Court and the suit was disposed of in terms of the compromise application by an order, dated 12th June, 1979.
2. It may be advantageous to reproduce hereinbelow the above application, which reads as follows :- "Application, under Order XXIII, rule 3, C. P. C. :- ' The parties above-named beg to notify the below-mentioned compromise arrived at between them wholly in the interest of an amicable and expeditious settlement of the dispute inter se
(1) The defendant shall be entitled to all the dues under the managing agency agreement on the footing that it will subsist and be operative till 24th June, 1979. Accordingly and as per the figures and breakup furnished by the official Assignee/Interim Receiver, the defendants through their Attorneys shall be paid from the funds of the Trust Ceramics Industries a sum of Rs, 13,74,214.
(2) In addition to the above dues the defendants shall receive from the funds of the Trust Ceramic Industries a sum of Rs, 1,00,000.
(3) Subject to this compromise each party hereto relieves the other of all claims, demands, liabilities on any account whatsoever.
(4) The defendant shall, before receiving payment due hereunder deliver upto the official Assignee/Interm Receiver:
(i) Khas deposit certificate of the value of Rs, 16,50,000 standing in the name of Trust Ceramic Industries.
(ii) Fixed Deposit Receipt issued by United Bank Ltd., Shahrah Liaquat Branch in the sum of Rs, 10,00,000 in favour of the plaintiffs Trust.
(iii) The cheque book pertaining to Current Account No, 2283 with the United Bank Ltd. Shahrah Liaquat Branch in the name of the plaintiffs Trust.
(5) On receipt of the documents mentioned in para. 4 above the official Assignee/Interim Receiver shall make payment to the defendant from the funds belonging to the Trust Ceramic Industries, a sum of Rs, 14,74,214 (Rupees Fourteen lakhs seventy-four thousand two hundred and fourteen only) by depositing the same with the Nazir of this Hon'ble Court or in such other manner as this Hon'ble Court may direct and simultaneously hand over and return the physical possession of the Trust Ceramic Factory and all its assets, cash balances, account banks, files, papers, cheque books securities, bank accounts, including the Khas Deposit Certificate and fixed deposit receipt mentioned above or such of them as remain after payment of the dues hereunder and every other thing belonging to the Hyderabad Rehabilitation Trust (1965) or to the said Trust Ceramic Factory to the plaintiffs and shall further take all such steps as may be necessary to put up the plaintiffs into full and effective control of the said factory and its management and assets.
(6) In view of the amicable settlement of this dispute plaintiffs has withdrawn all allegations of notices and publications against the deceased defendant.
(Sd.)
Advocate for plaintiffs.
(Sd.)
Advocate for defendants.
(Sd.)
M. Yaseen (Sd.)
M. Ikramullah for plaintiff.
' Karachi.
Dated : 11th June, 1979. For defendant."
3. It may be observed that under the above terms of compromise the managing agent was to get a total sum of Rs, 14,74,214 on delivering the following items to the following official Assignee :-
(i) Khas Deposit Certificates of the value of Rs, 16,50,000 standing in the name of Trust Ceramic Industries.
(ii) Fixed Deposit Receipt issued by United Bank Ltd., Shahrah Liaquat Branch in the sum of Rs, 10,00,000 in favour of the Trust.
(iii) The cheque book pertaining to Current Account No, 2283 with the United Bank Ltd., Shahrah Liaquat Branch in the name of the plaintiffs Trust.
4. It is an admitted position that the managing agent instead of delivering the Khas Deposit Certificates, valuing Rs, 16,50,000 delivered the same valuing Rs, 11,50,000 therefore, a dispute arose between the parties after the passing of the above consent decree. On 2nd September, 1979 Naimuddin, J. Passed the following order by the consent of the parties.
"Mr. M ohsin Tayabaly, Advocate for the plaintiffs with plaintiff No, 2'.
' Mr. Nasim Farooqi, Advocate for the defendants with defendant No, 2.
' By consent the following order is passed : "The Receiver is discharged. He will hand over the possession of the factory to the plaintiffs forthwith. The Receiver will pay the amount mentioned in the compromise to the defendants except a sum of Rs, 90,000 (Rupees ninety thousand only) which will be deposited by him with the Nazir and the same will be disbursed subject to the decision of this application. The receiver will pay the amount to the defendants against receipt of the Khas Deposit Certificates for the sum of Rs, 11,50,000. Fixed Deposit Receipts for the sum of Rs, 10,00,000 and Inter-Bank Receipts of Rs, 5,00,000. The learned counsel for the parties jointly state that this order is in accord and is consistent with the compromise and the subsequent order passed in this case.
' The hearing of main application by consent is adjourned to a date in office.
(Sd.)
Naimuddin, Judge."
' It may be noticed that under the above consent order, it was agreed that, the receiver would pay the amount mentioned in the compromise application to the managing agent except Rs, 90,000 which was to be deposited with the Nazir of this Court and the same was to be dispersed subject to the decision on C. M. A. No, 3680/79. It was also agreed that the managing agent would give [(has Deposit Certificates valuing Rs, 11,50,000 and for the balance of Rs, 5 lacs inter-bank receipts.
5. The above application was heard by Nasir Aslam Zahid, J. And was disposed of by the order under appeal, whereby it was ordered that the above sum of Rs, 90,000 should be paid to the Trust.
The appellants being aggrieved by the above order have filed the present appeal.
6. (a) Mr. Muhammad Ali Sayeed, learned counsel for the Trust has raised a preliminary objection as to the maintainability of the appeal on the ground that the order under appeal is neither a final order nor an interlocutory order.
On merits his contention was that the order is in accordance with law.
(b) On the other hand Mr. Nasim Farooqui, learned counsel for the appellants has urged as follows :-
(i) That though the order was passed under section 151, C. P. C. But it is of the nature, against which an appeal is competent as it finally deprived the managing agent from receiving Rs, 90,000.
(ii) That under the terms of compromise the managing agent was entitled to receive a sum of Rs, 14,74,214 out of which the learned Single Judge had ordered the payment of Rs, 90,000 to the Trust, which is not in accordance with law.
7. It may be pertinent to take up the question of maintainability of the appeal. It may be observed that the right of intra-Court appeal has a chequered history. The present right of a High Court appeal against an order or judgment of a learned Single Judge is relatable to the Law Reforms Ordinance, 1972 (Ordinance XII of 1972). It may be observed that under section 3 of the above Ordinance right to file an intra-Court appeal was taken away. However, this was restored under Act VIII of 1972 of Law Reforms (Amendment) Ordinance 1972, but no appeal against an interlocutory order passed by a learned Single Judge in exercise of original civil jurisdiction was provided for. It may be advantageous, to reproduce hereinbelow section 3 of Act VIII, which reads as follows :- "Section 3. Appeal to High Court in certain cases.--(1) An appeal shall lie to a Bench of two or more Judges of a High Court from a decree passed or final order made by a Single Judge of that Court in the exercise of its original civil jurisdiction.
(2) An appeal shall also lie to a Bench of two or more Judges of a High Court from an order made by a Single Judge of that Court under clause (2) of Article 201 of the Interim Constitution of the Islamic Republic of Pakistan, not being an order made under subparagraph (1) of paragraph (b) of that clause : ' Provided that the appeal referred to in this subsection shall not be available or competent if the application brought before the High Court under Article 201 arises out of any proceedings in which the law applicable provided for at least one appeal to any Court, tribunal or authority against the original order.
(3) No appeal shall lie under subsection (1) or subsection (2) from an interlocutory order or an order which does not dispose of the entire case before the Court.
(4) Nothing contained in this Ordinance shall be construed as affecting-
(a) any appeal under the provisions of the Letters Patent applicable to a High Court or under section 102 of the Code of Civil Procedure, 1908 (V of 1908), which was pending immediately before the commencement of this Ordinance ; or
(b) any appeal or petition for leave to appeal from a decree, judgment or order of a Single Judge of a Court made to the Supreme Court before the commencement of the Law Reforms (Amendment) Ordinance, 1972."
' However, Ordinance X of 1980, i. e. The Code of Civil Procedure (Amendment) Ordinance, 1980 under section 15 provided the right of intraCourt appeal against an interlocutory order made by a Single Judge of the High Court in exercise of original civil jurisdiction. It may be pertinent to reproduce hereinbelow section 15 of Ordinance X of 1980, which reads as follows :- "Section 15. Appeal to High Court in certain cases.-Notwithstanding anything contained in section 3 of the Law Reforms Ordinance, 1972 (XII of 1972) an appeal shall lie to a Bench of two or more Judges of a High Court from an interlocutory order made by a Single Judge of that Court in the exercise of its original civil jurisdiction."
8. It has been vehemently urged by Mr. Muhammad Ali Sayeed, learned counsel for the respondents that since the suit in question was already disposed of, the order under appeal passed under section 151, P. C. Can neither be termed as a final order nor an interlocutory order warranting the maintenance of the above appeal. In furtherance of the above argument, he has referred to a recent judgment of a D. B. Of this Court namely, Ali Muhammad Brohi v. Haji Muhammad Hashim (1), in which the facts were that after the passing of a decree, an application under section 148, C. P. C. For enlargement of time to perform certain obligation was filed, which was dismissed by a learned Single Judge, against which a High Court Appeal was filed, in which objection as to the maintainability of the appeal was raised, which was upheld by the above B. The judgment of which was delivered by Naimuddin, J., the relevant observations read as follows i- "From the above-stated meaning or explanation of the term it is clear that the term applies to an application made during the pendency of an action or to an order or decree passed in an action which does not finally dispose of the rights of the parties or which is made for the progress of the action for example, an order appointing a receiver, granting temporary injunction, attachment before judgment of the property of the defendant, giving or refusing leave
(1) PLD 1983 Kar. 527 ' to an assignee or successor to continue with the suit on assignment or devolution of interest, or granting or refusing leave to defend the suit.
"In the present case a decree was passed in terms of compromise contained in the application filed on 23rd November, 1980 the terms whereof we have been reproduced hereinbefore.
' A decree could be preliminary or final. According to the explanation to the definition of the decree given in section '2', subsection (2) of the Code of Civil Procedure 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.
' If we examine the terms of the compromise in the light of the meaning of the term we find that nothing was left to be done by the Court subsequent to the passing of the decree in the suit and the Court had decided the rights of the parties fully and finally in terms of the compromise and, therefore, the order or the judgment and decree passed in the suit was final and the Court was no more seized of the suit. In this view of the matter the application for extension of time could not be termed as an interlocutory application and the order passed thereon an interlocutory order.
Consequently, the High Court Appeal not being from an interlocutory order, is not maintainable."
9. On the other hand Mr. Nasim Farooqui, learned counsel for the appellants has referred to the case of Radha Kissen Chamria and others v. Keshardeo Chamria (1) and the case of A. L. R. R. M. V.
Vellayan Chettiar and others v. Receiver, Sri 0. A. Narayanaswami Iyer and others (2). In the first case of a D. B. Of the Culcutta High Court held that section 151 C. P. C. Does not contemplate any particular form of order and it is a mere enabling section and enables the Court when the circumstances require, to exercise its inherent power for the ends of justice or to prevent abuse of process of Court. It was further held that if an order passed under section 151 comes within the purview of section 47, C.P.C. As being an order made between the parties to the suit and determining any question relating to execution, discharge and satisfaction of the decree, an appeal would lie against such order. In the second case relied upon by Mr. Nasim Farooqi a D. B. Of Mrdras High Court held that an order possed for distributing the money realized among the claimants after the execution of a partition decree, was an appealable order.
10. We are inclined to hold that the order under appeal is appealable as either it amounts to varying the terms of the consent decree by the consent of the parties subject to the decision of the Court on the question of disbursement of above withheld sum of Rs, 90,000, which question stands finally decided by the order under appeal as far as the suit A is concerned or it is an order relating to execution, discharge and satisfaction of the decree within the purview of section 47, C. P. C. As urged by Mr. Nasim Farooqui. In this view of the matter, the preliminary objection raised by Mr. Muhammad Ali Sayeed is not sustainable and, therefore, it is overruled.
11. As regards the merits of the appeal, we are satisfied that theia order under appeal passed by the learned Single Judge is just and proper,'
(1) AIR 1946 Cal. 488 (2) AIR 1948 Mad. 452 ' and, therefore, does not call for any interference by this D. B. It is an admitted position that the managing agent instead of delivering the Khas Deposit Certificates valuing Rs, 16,50,000 (which were standing in the name of the Trust as per clause 4 (i) of the compromise application) delivered Khas Deposit Certificates valuing Rs, 11,50,000 only. In order to meet the above situation which admittedly amounted to a breach of the consent decree on the part of the managing agent, by consent it was agreed under the aforesaid order, dated 2nd September, 1979 that the managing agent would deliver inter-bank certificates of Rs, 5,00,000 in place of the above short delivered Khas Deposit Certificates valuing Rs, 5 lacs. It was also agreed by consent that out of the aforesaid sum of Rs, 14,74,214 payable by the Trust to the managing agent in return of the items specified in para. 4 of the compromise application referred to in para. 3, a sum of Rs, 90,000 would be deposited with the Nazir of this Court and the Court would decide the question to whom this amount should be disbursed. The learned Single Judge decided the above question of disbursement and held that since the Trust would have received a sum of Rs, 90,000 on account of interest on the above short delivered Khas Deposit Certificates valuing Rs, 5,00,000, the above sum of Rs, 90,000 should be paid to the Trust. The above conclusion seems to be just and proper as observed hereinabove. However, it was vehemently urged by Mr. Nasim Farooqui, that since the Court by the aforesaid order, dated 16th May, 1978 had allowed the managing agent to withdraw Rs, 5,12,090 from any amount, he was entitled to encash the Khas Deposit Certificates valuing Rs, 5 lacs. Which were short delivered. In our view, the above order is of no significance as under the consent decree passed on 2nd September, 1979 the managing agent undertook to deliver the Khas Deposit Certificates valuing Rs, 16,50,000, which were standing in the name of the Trust as per para. 4 (i) of the compromise application. If the managing agent was not in a position to deliver the Khas Deposit Certificates valuing Rs, 16,50,000, it should have been pointed out before the passing of the consent decree, so that the parties might agree to some other arrangement.
' It was also contended by the learned counsel for the appellants Mr. Nasim Farooqui that the managing agent could deliver any Khas Deposit Certificates of the value agreed to, in our view, this contention is contrary to the admitted factual position as in para. 4 (i) of the compromise application, it has been clearly stated that the Khas Deposit Certificates standing in the name of the Trust.
12. It was then submitted by Mr. Nasim Farooqui that this Court may observe that the managing agent will have the right to file an execution application for the recovery of the above amount of Rs, 90,000 withheld, out of the above sum of Rs, 14,74,214 payable to the managing agent. In our view, we cannot make any such observation as the question whether the managing agent was entitled to receive the above sum of Rs, 90,000 out of the sum of Rs, 14,74,214, by consent was in issue before the learned Single Judge, which stands concluded by the order under appeal, which we are inclined to maintain. In our view, any observation of the nature sought from us by the learned counsel for the appellants will be in negation to the order under appeal and this judgment.. The appeal stands dismissed with no order as to costs.