NAIMUDDIN, J.---The petitioner seeks leave to appeal from the judgment of the High Court of Sindh dated 12-12-1989 passed in Civil Miscellaneous Appeal No.33 of 1988 in the following circumstances.
2. Respondent filed a suit, being Suit No.69 of 1984, in the Court of Senior Civil Judge, Thatta, praying for the following main reliefs: "(a) Mandatory injunction directing that the demarcation of the area of the Plaintiffs Nos.1 and 2 and the area agreed to be sold to the defendant No.1 from plot bearing No.822/C, situated at National Highway Road, Thatta, be carried out through defendant No.2 and give such further direction to the defendants as may be found necessary upon adjudication of the dispute in the suit by this Honourable Court.
(b) Declaration indicating the respective areas of the plaintiffs Nos.1 and 2 and the defendant No.1 by meets and bounds in the aforesaid plot bearing No.822/C, situated at National Highway Road, Thatta.
(c) Mandatory injunction directing the defendant No.2 to demolish the construction illegally and unauthorisedly raised on the land of the plaintiffs Nos.1 and 2 by defendant No.1 and further order removal of the construction material from the SITE failing which direct demolishing and/or removal of illegal construction and/or material .As aforesaid at the expense of the defendant No.1 by giving appropriate directions in that behalf.
(d) Permanent injunction restraining the defendant -Nb.1 either by themselves or through their servants, agents and contractors from raising construction on the land in dispute."
3. During the pendency of the suit the parties hereto entered into a compromise on 16-5-1985 and submitted the application praying to the Court to dispose of the suit in terms of the compromise.
The terms of the compromise read as follows: "(i) That the parties in principle have agreed that the plaintiffs would sell remaining 597.33 Sq.Yds.
From the Plot No.822/C situated at National Highway, Thatta to the Defendant No.1 who have agreed to purchase the same for valuable consideration.
(ii) That since there is a difference on the question of the selling price of the land, as such the parties hereto have mutually agreed to appoint Deputy Commissioner, Thatta or his Nominee for determining the fair price of the plot as Sole Arbitrator which will be binding on the both the parties.
(iii) That upon determination of the fair, price of the plot by the Deputy Commissioner, Thatta or his Nominee the Plaintiffs will execute Sale Deed in favour of the Defendant No.1 against payment.
(iv) That the formalities of sale will be completed within 30 days from the date of determination of the fair price of the plot by the Deputy Commissioner, Thatta or his Nominee.
(v) That a joint written request shall be made to the Deputy Commissioner, Thatta in terms hereof for determining thus fair price of the plot within 7 days from the data hereof who shall be requested to determine the fair price of the plot within 15 days from the date of submission of joint request:"
4. Accordingly, the compromise was recorded and on the same day, a decree in terms thereof was passed which was prepared and signed on 30-11-1986.
5. Meanwhile, in terms of compromise the parties referred the question of determination of the price of the plot, in question, to the D.G. Thatta who determined the price at Rs.1,100 per sq. Yds. Both the parties treating the same to be an award filed applications. The petitioner riled art application under section 33 of the Arbitration Act disputing the award and, the respondent filed an application under section 17 of the Arbitration Act for passing a decree in terms of the award. Both these applications were dismissed by the learned Senior Civil Judge by the order dated 20-11-1986. The operative 1pam of the order reads as follows: "I have heard the counsel for the parties and perused the record. Perusal of the order referred to in the application of the plaintiff shows that it is an order dated 16-5-1985 passed on the application under Order 23-B, C.P.S. Filed by the plaintiff and defendant No.1 and reads "The suit is decreed in terms of compromise". Since the suit already stands decreed, no second decree can be passed in the suit. According to the procedure given in the Civil Procedure Code a judgment always precedes decree and since the suit has already been decreed, therefore, no judgment can judgment can be passed subsequent to the decree, therefore the application of the plaintiff for passing judgment and decree in terms of the award is not maintainable and is rejected. Similarly the application of the defendant for allowing to lead evidence is not maintainable at this stage as evidence cannot be allowed after the suit has already been decreed This application is also dismissed."
6. Thereafter, on 14-5-1987, the respondent filed another application under Order XXI, Rule 31 read with section 151, C.P.C., praying that the petitioner judgment debtor in the suit may be directed in terms of the decree to demolish the illegal construction carried out by them on the plot of decree- holder. This application was allowed by the learned Senior Civil Judge, Thatta by the order dated 13-7-1988 which was allowed by him. The operative part of the order reads as follows: "I hereby order that let this decree be satisfied and I direct the defendant No.1 either deposit the amount towards price as determined by the Nominee of the Deputy Commissioner, Thatta which comes to Rs.6,56,700 as per award. Within 4 months period from the date of this order, and the D.H.
Is directed to execute such sale in favour of the defendant No.1 as per terms of the compromise decree regarding the disputed portion of the suit plot within 4 months to the D.H. However, there will be no order for interest as the compromise application and the decree are silent, for the interest.
The application is disposed of accordingly."
7. The petitioner aggrieved by this order filed an appeal in the High Court, being Civil Miscellaneous Appeal No.33 of 1988, which was dismissed by the order impugned in this petition. The paragraph of the impugned judgment reads as follows: "The terms of the compromise application have been given in the earlier portion of the; judgment.
The suit was decreed in terms of the compromise. The parties in particular had agreed that the respondent would sell the remaining 579 square yards from the Plot No. 822-A to the appellants who had agreed to purchase the same for valuable consideration. The formalities of sale are a condition precedent to the execution of the deed."
8. Aggrieved by the above order, the petitioner is before us. We have heard Mr. Talmiz Burney for the petitioner and Mr. Akhtar Mahmud for the caveator/respondent. One of the grounds taken by the learned counsel for the petitioner in the memorandum of petition reads as follows: "That the terms of compromise incorporated in the decree dated 30-11-1986 were totally beyond the scope of the original suit No.69/84 and could not be treated as decree executable in the original suit. It is submitted that the same was a fresh contract which could be endorsed only by a fresh suit for specific performance of the contract."
9. More or less same statement has been made in paragraph 18 of the memorandum of petition, which reads as follows:-- "That the said application of the compromise constituted a fresh Agreement of Sale between the parties with the provision of arbitration and as such the said agreement was totally and entirely beyond the scope of the original suit. It is submitted that the relief claimed in the said suit was also beyond the scope of the said application for compromise which constituted a fresh agreement of sale in respect of the land in question between the parties."
10. Mr. Akhtar Mahmud fairly conceded the above ground and we are also of the view that decree passed in the suit was beyond the scope of the suit and was, therefore, inexecutable. It contained a fresh agreement to sell the immovable property namely, undivided portion of plot of land measuring 597.33 Sq. Yds. While the suit was for partition of the plot of land and delivery of separate possession of said portion of the plot of land and declaration of respondent's right therein as stated hereinbefore in paragraph 2.
11. Indeed in the appeal in the High Court in which the impugned order was passed the petitioner had prayed as follows:- "It is, therefore, prayed that this Hon'ble Court be pleased to call for the record of the Execution Application No.1l of 1987 and after hearing the parties, graciously be pleased to set aside the order, dated 13th July, 19&R passed by Senior Civil Judge Thatta in Execution Application No.11 of 1987 and thereby dismiss the said application and allow this appeal with costs throughout."
12. In consequence of the concession made by Mr. Akhtar Mahmud this prayer has to be granted. It is again so conceded by Mr. Akhtar Mahmud.
13. In the result we convert this petition into appeal and allow it with the result that the impugned judgment of the High Court is set aside and the prayer made in the appeal and quoted hereinabove in paragraph 11 is granted.
14. Parties are, however, left to bear their own costs of this appeal.