1. ' FAKHRUDDIN H. SHAIKH, J.-- The above three applications have been filed by the appellant under the following circumstances:- ' The appellant and respondents Nos.2 to 4 are Trustees of Karachi Parsi Anjuman Trust Fund which is managed by five trustees who are elected in accordance with Rules framed for the purpose. One of the seats was vacant for which election by open ballot system, was held on 29th October, 1982 in which Byram Avari respondent No,1 is alleged to have secured highest number of votes out of the total votes cast. The only other candidate for the seat was respondent No,5, who did not raise any objection against the election. The existing trustees were, under rule 31 read with rule 41 of the above Rules, required to consider the report of scrutinizers at a special meeting and then declare the result of election and cause it to be published in a newspaper. It is claimed that the result could not be declared because the appellant and respondent No,4 either did not attend the special meetings or did not give consent to the declaration of the result. As the quorum for the meeting was three, hence the appellant and respondent No,4, being two out of the four existing trustees, had virtual veto power in respect of any decision to be taken at a meeting. Thus they made it impossible for the trustees to declare the result of the election held on 29th October,1982.
2. ' Aggrieved by this conduct of the above two trustees, respondent No,1 filed Suit No,578/82 in this Court seeking following reliefs:- "That this Honourable Court may be pleased to issue an injunction directed to the defendants 1 to 4 (appellant and respondents Nos. 2 to 4) and each of them, requiring them to meet forthwith the purpose of declaring the result of the election of Trustee held on 29th October,1982, and failing compliance of defendants 1 to 4, within a period of one week of the decree of this Honourable Court, to direct the Nazir or such other person which this Honourable Court may be pleased to appoint to take possession of the Ballot Box, together with the keys of the same and the Scrutineers'
3. Report and declare the result and cause the same to be communicated to candidates and published in one Gujrat and one English newspaper, at the cost of the Trust, in accordance with the Rules."
4. ' During the pendency of the suit the plaintiff (respondent No,1) filed an interlocutory application (Civil Miscellaneous Application No, 661/83) before the learned Single Judge who was seized of the case, seeking "an order from the Court to allow the plaintiff/respondent No,1 to function as a trustee of the Parsi Anjuman pending disposal of the suit."
5. ' After hearing learned counsel for the parties, the learned Single Judge allowed the interlocutory application by his order dated 8th March, 1983, permitting plaintiff/respondent No,1 to function and act as a trustee of the Parsi Anjuman in question till the final disposal of the suit. During the pendency of the suit the posts held by respondent No,34 and respondent No,4 had also fallen vacant, but under the rules they were entitled to continue to function as trustees until their successors were elected. The learned Single Judge gave further directions in his order dated 8th March,1983 regarding election to fill up the above two vacancies. These directions were as follows:- "As the term of office of respondent No,3 has expired, it is directed that the trustees will hold the election in April 1983 to fill up this vacancy. Similarly, as respondent No,4 has resigned, another election will be held by the trustees during May 1983 for filling up such vacancy. These two trustees, however, will continue to hold office till such time their successors are elected. From the pleadings it appears that all the parties have full confidence in the president and the two scrutineers of the election held on 29th October, 1982.
6. These three persons shall act as such in the two elections ordered to be held in April and May 1983.
7. As an additional safeguard it is directed that in the two elections to be held in April and May, 1983, Nazir of the Court will be present as an observer and will make reports to this Court about the conduct of the elections. As soon as the trustees fix the dates of the elections, the Nazir of this Court will be intimated in writing about the same so that he attends the proceedings as directed."
8. ' Aggrieved by the above order of the learned Single Judge, the appellant who was defendant No, 4 in the original suit filed H.C.A. Before this Court being H.C.A. No,13 of 1983. The appeal was decided by us on 26th May, 1983 by a consent order in terms of points of agreement given in writing by the contesting parties. The points of agreement which were incorporated in our order dated 26th May,1983 were as under:- POINTS OF AGREEMENT
1. Respondent Byram Avari will function as Trustee of the Parsi Anjuman Trust Fund subject to the decisions of Suits Nos. 578 of 1982 and 28 of 1983, and to the terms set down below.
2. Pending disposal of the above suits and subject to their decision, the Trustees will not appoint or elect Mr.D.B. Avari or any, other Trustee as Chairman of the Board of Trustees.
9. 3.(A) The Trustees shall give their consent to the election to fill in any vacancy during the pendency of the above suits on secret ballot.
10. B. Pending the disposal of the suits no election for the post of Trustee held by JAL H.B.BYRAMJEE, will be held."
11. ' On 10th September,1983, that is, after about 3 months of the disposal by us of the above appeal the appellant filed the above three civil miscellaneous applications alleging that respondents Nos.1, 2 and 3 are avoiding to implement the order of this Court dated 26th May,1983.
12. ' In C.M.A. No,821/83 following reliefs are sought:- "That the Respondent No,1 has disentitled himself as to concession of functioning as trustee as per item No,1 and the order is liable to be set aside/varied.
13. ' In the premises it is prayed as under:- A. Suspend item No,1 of the agreement dated 26th May,1983 restraining Respondent No,1 from functioning as trustee of the KPATF, till the disposal of this application.
14. B. That action be taken against the respondents Nos. 1, 2 and 3 for wilfully disobeying and disregarding the undertaking given to this Honourable Court as per item 3-A of the points of agreement filed in this Honourable Court on 26th May,1983.
15. C. This Honourable Cour may be pleased to fix date for holding election for vacancy created due to expiry of the term of respondent No,3 under the supervision of Registrar of this Honourable Court."
16. In C.M.A. No, 822/83 following relief is sought:- "That this Honourable Court may be pleased to suspend operation of the decisions taken by the Respondents Nos.1 to 3, on 2nd July,1983 as no notice of the meeting held on 2nd July,1983 was given to the appellants."
17. ' This application related to the decision taken by respondents Nos. 1, 2 and 3 in their meeting on 2nd July,1983 for, inter alia, amending the rules so as to provide for election of trustees by secret ballot.
18. ' In C.M.A. No,823/83 prayer was made for restraining respondent No,1 from acting as a trustee pending decision of the contempt matter (which is subject-matter of first application). This application was not pressed because it was covered by item 'A' of the prayer in C.M.A. 821/83.
19. ' We shall first take up Item 'B' of C.M.A.No,821/1983 which relates to the alleged contempt of this court by respondents Nos.1, 2 and 3 in disobeying and disregarding the order of this Court dated 26th May,1983. The order which is said to have been disobeyed relates to point No,3-A of the 'Points of Agreement' which is reproduced hereunder:- "3.A The Trustees shall give their consent to the election to fill in any vacancy during the pendency of the above suits on secret ballot.
(B) Pending the disposal of the suits no election for the post of Trustee held by JAL H.B.BYRAMJEE, will be held." ' Respondetns No's. 1, 2 and 3 have filed separate counter-affidavits controverting the allegation that they have committed any disobedience of the above order. As all the three counter-affidavits contain almost similar averments, we shall refer to the counter- affidavit of Byram D.Avari (respondent No,1) only as it is in more detail and is supported by relevant documents. The main plea of this respondent is contained in para.6 which is as follows effect:- "6. The appellants have attempted to misinterpret the order of this Honourable Court in para.3 of the Application under section 151, C.P.C. Read with section 3 of the Contempt of Courts Act. I need hardly comment upon the said order which speaks for itself. Even so, I wish to point out respectfully that I as well as the other Trustees have all along given our consent to the principle of future Elections being held by Secret Ballot. Indeed this was our stand even before the dispute was moved to this Court by the present appellants and it was the first appellant who had canvassed against the principle of secret Ballot. I file herewith a copy of the publication of the Parsi Sansar Newspaper of 27th October 1982, wherein the first appellant had explained and justified the existing mode of election and had canvassed against the principle of Secret Ballot. This publication is marked as 'R- 1/A. Having said this, I beg to submit that respondent trustees of the Karachi Parsi Anjuman Trust Fund never had any objections to the principle of Secret Ballot but in order to hold an election on the said principle the respondent truly and honestly felt that their individual consent as Trustees cannot bind the Trust and its members nor are the Trustees possessed of the authority to give such a consent. Even if the Election is held on the principle of Secret Ballot, it can perhaps be challenged by any member of the Anjuman Committee or the beneficiaries of the Trust as being contrary to the provisions of the said rules on the subject. It was in this view of the matter that we proposed and resolved to get the rules lawfully amended so as to provide for a Secret Ballot. It is unfortunate but least surprising that the present appellants saw a sinister motive even in this action of ours."
20. ' The contesting respondents have further relied upon minutes of the meeting held by the trustees on 2nd July,1983, which has been produced by appellant himself as Annexure 'A-5' with his affidavit.
21. This document shows that on 30th May,1983,i,e, after four days of our final order in the appeal dated 26th May, 1983, the trustees including Respondents Nos.1, 2 and 3 had met and resolved to take necessary steps to hold election by secret ballot, by first amending the Rules in this behalf, so that the election may not be challenged by any member in future on the ground that the rules did not provide for secret ballot. This resolution was confirmed in the meeting dated 2nd July,1983 as evidenced by Annexure 'A-5' referred to above. During arguments it was also stated by Mr.M.A.
22. Sayeed learned counsel for respondent No,1 that necessary draft had already been prepared for amendment of the rules which is to be effected after obtaining consent of the Advocate-General by an application to this Court.
23. ' From the above averments which are not controverted, we are satisfied that respondents Nos. 1, 2 and 3 had been taking steps to implement in spirit the direction contained in Point No,3-A of the Points of Agreement.
24. We may state here that the direction was merely to the effect that the trustees shall give their consent to the election to fill in any vacancy during the pendency of the above suit by Secret Ballot.
25. This direction was given in terms of the agreement in writing given by both the parties. The language of this direction is also of the parties and it was incorporated in our final order as it was submitted to us. In this direction no date has been fixed for filling the vacancy. Hence if it is proved, that respondents Nos.1, 2 and 3 have been taking steps to implement this direction, then it cannot be said that they have disobeyed or disregarded the order of this Court. We are satisfied that no case for action under the Contempt of Court Act, 1976 has been made out.
26. ' So far as Points Nos.1 and 2 of the Points of Agreement and the reliefs sought in C.M.A. NO.821 of 1983 are concerned, they related to the implementation or execution of our final order whereby the High Court Appeal was decided by us on 26th May,1983. The question, therefore, arises whether this Court is empowered to execute the order which was passed by us in exercise of appellate jurisdiction. Reference has been made in this connection to section 38 of the C.P.C. Which provides that a decree may be executed either by the Court which passed it or by the Court to which it is sent for execution. Now the term "the Court which passed decree" has been defined by section 37, C.P.C. Clause (a) of section 37, C.P.C. Provides that the expression "the Court which passed a decree" shall, where the decree has been passed in exercise of appellate jurisdiction, be deemed to include the Court of first instance. Mr.Khalid Anwar learned counsel for the appellant has argued that by virtue of section 37(a) the appellate Court is not precluded from executing its own order.
27. According to him the word "includes" appearing in section 37(a) does not mean that the Court of first instance is the exclusive Court for executing decree passed by the appellate Court, and that the language in which section 37(a) is couched clearly indicates that the appellate Court has got concurrent jurisdiction with the Court of first instance in respect of implementation or execution of orders or decrees passed by the appellate Court in exercise of appellate jurisdiction.
28. We are unable to agree with the learned counsel that this Court has got concurrent jurisdiction with the Court of first instance in the matter C of execution of appellate decrees. The order of the Court of first instance dated 8th March,1983, which was modified in appeal by us by order dated 26th May,1983, shall be deemed to have been merged in the appellate order. Now it is the Court of first instance which is competent to implement the final orders in terms of section 37(a), C.P.C.
29. Section 38, C.P.C. Is not an independent section. It is to be read in the context of provisions of section 37(a), C.P.C. So far as the interpretation of the expression "the Court which passed decree" is concerned. We are supported in this view by decision of Allahabad High Court in the case of Bhagwan Das v. Ganga Prasad AIR 1959 All.
92. It has been held in the above case that where a decree for costs is passed by the High Court in revision, the Court of first instance viz the Munsiff's Court and not the High Court would have jurisdiction to execute the decree in view of section 38 read with section 37(a), C.P.C. In Lingam Krishna Bhoopathi Deo Garu v. Raja of Vijayanagaram and another AIR 1914 Mad.222 (2) it has been held that "where the Privy Council transmits its decree to the High Court, the High Court in receiving and filing it does purely a ministerial act. The District Court whose decision was appealed against does not thereby cease to be a Court 'which passed the decree' for the purpose of recognizing the transferee decree-holder and ordering execution at his instance." Again in the case of Alluri Bangar Raju and others v. Alluri Raja Kalidindi Suraiahmma Bahadur and another AIR 1957 And. Pra.403 it has been held that the proper Court to execute the appellate decree would be only the trial Court by virtue of section 37, C.P.C.
30. We are in respectful agreement with the views taken in the above cases. Consequently the appellant should move the Court of first instant i,e, learned Single Judge whose order was modified by us vide order dated 26th May,1983 for execution of the order in question or for staying the operation of that order. The question whether respondent No,1 can be E suspended from acting as a Trustee during pendency of the suit or the proceedings taken on 2nd July,1983 by respondents Nos.1, 2 and 3 after the decision of the High Court Appeal by us, should be declared to be legal or otherwise, are such which may appropriately be agitated before the learned Single Judge who is seized of the suit.
31. Moreover by the above applications the appellant has prayed that the order passed by us should be partly modified or suspended. It has been argued by the learned counsel for respondents Nos. 1, 2 and 3 that after final disposal of the High Court Appeal by us by order dated 26th May, F 1983, this Court has become functus officio and cannot modify or stay the said order except in exercise of review jurisdiction or under section 152, C.P.C. For correcting clerical errors. Rule 3 of Order XX, C.P.C.
32. Lays down that a judgment when once signed shall not afterwards be altered or added to, save as provided by section 152, C.P.C. Or on review. In the case of Ali Muhammad Brohi v. Haji Muhammad Hashim PLD 1983 Kar.527 it was held by a Division Bench of this Court that neither section 148 nor 151, C.P.C. Can be utilised for the purposes of alteration of decree. The above C.M.As are neither for review of our order under section 114, C.P.C. Nor the provisions of section 152, C.P.C. Have been invoked.
33. Consequently all the three applications are dismissed with costs.