1. ' ALLAHDINO G. MEMON, J.--Mr.Z.U.Ahmed, submits that he has already presented the Prize Bonds to the State Bank of Pakistan for receiving the prize Money.
2. ' This application by consent is, therefore, disposed of in the following terms:- "Mr. Z.U.Ahmed has delivered the Prize Bonds to the State Bank of Pakistan to receive the prize money declared in the recent draw on the said Bonds. The Nazir will now collect the Prize Money and keep in his safe custody till such time that Mr. Z.UAhmed is able to furnish security to the extent of Rs,2,10,000 towards the said Prize Money. Defendant No, 1, who is said to have presented the said prize Bonds to the State Bank of Pakistan may receive them back from the Bank, according to the rules, after the Prize Money is paid by the Bank to the Nazir of this Court.
3. Sd/- JUDGE."
4. ' Feeling aggrieved with the above consent order, the present High Court Appeal has been filed.
5. ' We have heard Mr. Z.U.Ahmed, learned counsel appearing for the appellants, Mr. Abdul Rauf, learned counsel appearing for the respondents, and have also gone through the documents produced on record.
6. ' It has been contended by Mr. Z.UAhmed, learned counsel for the appellants that the consent statement made by him and the learned counsel for the respondent is not properly reflected in the order and the words:- "the question of the disbursement of the amount shall be considered after the money has been received." are missing from the part of the order and instead: "till such, time that Mr. Z.U.Ahmed is able to furnish security to the extent of Rs,2,10,000 towards prize Money." has been interpolated therein possibly later on in the Chamber of the Hon'ble Judge which has seriously prejudiced the case of the appellants.
7. ' Mr. Abdul Rauf, learned counsel for the respondent No, 1 has contended that the consent order dated 19-11-1987, was recorded by the learned Single Judge in the open Court and in fact there was no mistake or interpolation in the order. He has further contended that the appellants had other remedy available by way of filing application under section 151, 152, or 153 C.P.C. But the present appeal was not maintainable by virtue of provisions of section 96 (3) C.P.C.In support of his contentions the learned counsel has relied upon:--
(1) PLD 1961 Lah 823
(2) PLD 1972 Lah 711
(3) PLD 1980 S.0 45 and
(4) 1982 SCM R 539 ' We have considered the contentions of the learned counsel. The impugned order shows that it was passed in the Court in presence of the learned counsel for the parties. In order to appreciate the legal objection raised by the learned counsel for the respondent, it will be appropriate to refer to section 96 clause (3), C.P.C; which reads as follows:-- "96. Appeal from original decree.-(1) Save where otherwise expressly provided in the body of this Code or by any other law for the time being in force, an appeal shall lie from every decree passed by any Court exercising original jurisdiction to the Court authorised to hear appeals from the decisions of such Court.
(2) An appeal may lie from an original decree passed ex parte.
(3) No appeal shall lie from a decree passed by the Court with consent of parties."
8. ' In addition to the above provision of law, the learned counsel has referred to the following decisions:--
(1) In the case of Lal v. Siddiq and others (PLD 1961 (W.P.) Lahore 823); wherein the question of interpretation of Order XXIII, Rule 3 came up for consideration and it was observed:-- "The true test for determining whether or not a decree should be regarded as a consent decree, lies in ascertaining the real intention of the parties, and not merely whether a particular procedure, for example the one embodied in Order XXIII, Rule 3, C.P.C.,has been observed. If, from the circumstances of the case, the real intention of the parties can be gathered to the effect that they are binding themselves to a particular decree by reason of an agreement, compromise or adjustment, then the decree must be regarded as a consent decree, from which no appeal would lie in accordance with section 96 (3), C.P.C. Most of such cases would fall within the purview of Order XXIII rule 3, C.P C., but there may be cases not falling strictly within four corners of this rule, which would nevertheless be cases of consent decrees."
(2) In the case of Raees Ahmed v. Mian Abdul Jabbar and another PLD 1972 Lahore 711; wherein ejectment application was decided by the Rent Controller by oral consent of the parties, the tenant filed appeal before the District Court on the ground that the learned Rent Controller did not record the compromise and, therefore, his order is a nullity. However, the appeal was dismissed and the tenant filed writ petition before the High Court which was also dismissed; thereafter the tenant filed Letters Patent Appeal wherein the same plea was raised but the same was repelled by a Division Bench with the following observations:-- "8. We would also like to observed that since the "Rent Controller passed the impugned order at the instance of the appellant himself the latter could not make any grievance of the fact that the order should not have been passed. The learned District Judge was justified in holding that the appeal was not competent. The Rent Controller and the District Judge have both acted within their lawful competence and have not violated any provision of law. Their orders are, therefore, unexceptionable. The Writ petition has rightly been dismissed by the learned Single Judge."
(3) In the case of Mohammad Asalm v. Member, Board of Revenue (Settlement and Rehabilitation Wing) Chief Settlement Commissioner and 6 others PLD 1980 S.0 45) wherein the parties had compromised in two Writ petitions before the High Court but the petitioner filed Inter-Court Appeal under section 3 of Law Reforms Ordinance, 1972 on the ground that the compromise was against the provisions of Order XXIII, Rule 4 of the Civil Procedure Code. The appeal, however, was dismissed on the reasoning that it was not competent in view of the compromise arrived at between the parties; it was observed that;-- "The compromise was duly recorded in the shape of settlement of the petitioner and Malik Muhammad Azam, who were contesting the two writ petitions and the compromise was recorded by matual agreement of the parties, to which they consented. It was held that under the law, such a compromise cannot be challenged in appeal because no appeal lies from an order or a decree passed on compromise.
9. ' The petitioner filed petition for leave to appeal and the same was dismissed by their Lordships of the Supreme Court with the following observations:-- "It may be, that the appeal before the Division Bench under section 3 of Law Reforms Ordinance, 1972, would not attract the provisions of subsection (3) of section 96 of the Civil Procedure Code but there would be nothing wrong with the order of the learned Judges of the Division Bench refusing to proceed with an Appeal against the order of a Single Judge passed with consent of the parties if the order is otherwise fair, just and proper. Another reason is that when a consent order is passed the parties have indeed nothing to appeal against."
4. In the case of Sirajuddin v. Mohammad Yousuf and others 1982 SCMR 539; the suit filed by the petitioner was dismissed and decree was passed against him in accordance with the statement made by the Advocates of the parties. The petitioner filed appeal before the High Court but the same was dismissed and it was observed that the decree was a consent decree against which the appeal was not maintainable. The petitioner filed petition for leave to appeal before the Hon'ble Supreme Court wherein the ground was taken that the learned counsel who appeared before the trial Court on behalf of petitioner was not competent in law to enter into compromise with the respondent; the contention was repelled and the view taken by the High Court was affirmed.
10. In view of the above legal position we are of the considered view that the High Court Appeal filed by appellants is not maintainable by virtue of section 96, clause (3), C.P.C. And, therefore, the same is accordingly dismissed with no order as to costs.
11. ' We had decided the above appeal by a short order on 22-8-1989, and these are the reasons for the same.