ABDUL QADEER CHAUDHRY, J.---This appeal by leave of the Court is directed against the judgment of the High Court dated 5-6-1988.
2. The facts, in brief, are that Mst. Khatima, respondent No.8 alongwith two other daughters of Abdul Majid, filed a suit for partition and possession of their share in the property left by Abdul Majeed, against the appellant their brother and other daughters of Abdul Majeed. During the pendency of the suit, a compromise was effected between the parties in the following terms:---- "(a) that plaintiff Mst. Khatima (Respondent No.8) shall deliver possession to petitioner Abdul Rasheed of House No.7-21/75 situate at Abdul Majeed Street, Nichari, Quetta City and a garage and two shops situate nearBurma Hotel, Sariab Road, Quetta City (vi) built on Khasras Nos.987 and 988 purchased in the name of Respondent No.3 Abdul Manan for which Mutation No.279 dated 30-11- 1981 was attested);
(b) She shall also pay rent for the period of last 16 years of House No.7-- 21/75 and Shop No.4-3/1 at the rate of Rs.50 p.m.;
(c) M'st. Khatima (Respondent No.8) shall pay Rs. One lac to the petitioner Abdul Rasheed within a period one year;
(d) that possession and ownership of Shop No.4-1/3 shall be delivered by the petitioner Abdul Rasheed to the plaintiff (Mst. Khatima):'
3. The suit was decreed in terms of the compromise. The decree-holder filed an application on 17- 3-1986 for the execution of the decree. An objection petition was filed by respondent No.8, Mst.
Khatima. This application was rejected by the executing Court on 22-7-1986 as being non- maintainable. After the dismissal of the application filed by the respondent No.8, respondents Nos.1 to 7 filed an application on 27-4-1986 under Order 21, rule 99, C.P.C. With a prayer that the plot of land mutated under Inteqal No.279 dated 30-11-1981 in favour of respondent No.9 be excluded from execution of the decree as this property was purchased for all the heirs of Abdul Majeed including.
Respondent No.9. This application was contested by the appellant who stated that he had already performed his part of the compromise. An application was filed by respondents Nos.1 to 7 seeking review of the order dated 22-7-1986. The executing Court by order dated 7-3-1987 held that the review was competent. The executing Court issued warrant for dispossession. The respondents Nos.1 to 7 moved another petition under Order 21, rule 99 read with Order 9, rule 9, C.P.C. Praying that the orders dated 7-6-1987 and 28-6-1987 be set aside and the objection petition be restored.
The executing Court disposed of the application observing "that the shop bearing No.4-3/1, Liaqat Bazar, Quetta, cannot be subjected for the satisfaction of the decree. The decree-holder is advised to seek remedies against Mst. Khatima according to law". The respondents Nos.1 to 7 moved another application on 31-9-1987 for the correction of the order dated 28-9-1987 to the effect that instead of Shop No.4-3/1, Liaqat Bazar, Quetta, it may be substituted by plot of land (2 Qitas) measuring 2 rods 33 poles equal to 2,000 sq.Ft. Situated in Mahal Karez Sanjir, Mauza Ahmed Khanzai, Tappa Kachi Baig, Tehsil and District Quetta. This application was allowed by the executing Court by means of order dated 26-4-1988. The appellant challenged the orders dated 28-9-1987 and 26-4-1988 before the High Court. The High Court dismissed the appeal as barred by time on the ground that the order dated 28-9-1987 is obviously time-barred. After holding so, it was held that the appeal against the order dated 26-4-1988 is not competent.
4. Here, it may be pointed out that the objection petition filed by the respondents Nos.1 to 7 was dismissed by the executing Court on 22-7-1987. The order dated 28-9-1987 is to the effect that the respondent Abdul Manan had no authority to compromise the matter with regard to shop bearing No. 4-3/1, Liaqat Bazar, Quetta. The subsequent order dated 26-4-1988 substituted this property by another property holding that it was a clerical error. The two properties were distinct and separate.
The appellant was aggrieved by the second order dated 28-9-1987 and the appeal against that order was not only within time but was also competent. This appeal against the order dated 26-4- 1988 could not be dismissed on the ground that the appellant had not challenged the order dated 28-9-1987. The objection petition filed by Mst. Khatima on 24-4-1986 states that "in the Razinama inadvertently two Qitas measuring 3 rods 33 polls vide Inteqal No.279 situated in Mahal Karez Sinjar, Mouza Ahmad Khanzai, Tappa Kachi Baig, Tehsil and District Quetta, was included which did not belong to the judgment-debtor nor the same was the subject-matter of the suit'. No objection was raised that there was any dispute in respect of the shop bearing No.4-3/1, Liaqat Bazar, Quetta. This shop was incorporated in the compromise deed. The objection petition even by the respondents Nos.1 to 7 had been filed in respect of the land measuring 2,000 sq.Ft. Vide Inteqal No.279. The order of the Court wherein reference to Shop No.4-3/1, Liaqat Bazar, Quetta, has been mentioned, is patently illegal as there was no objection with regard to this shop. Even if, the appellant had not challenged this order, it does not make the order legal. An error committed by the Court cannot be utilized for the benefit of the respondents. A party cannot be non-suited on account of an erroneous order of the Court. We, therefore, allow this appeal, set aside the impugned judgment of the High Court and remand the case to it for decision on merits. There will be no order as to costs.