' This FOA is directed against the order, dated 4-5-1991, by which a learned Civil Judge Ist Class at Lahore dismissed the execution petition of Ch. Muhammad Nawaz appellant for the enforcement of a compromise, dated 24-1-1990, reached between the parties before a Division Bench of this Court in R.FA. No,70 of 1990 as also his petition made under Order 21, rule 34, C.P.C.
2. The relevant facts necessary for the purpose of this FOA are these:- ' On 11-4-1989 the appellant brought a suit against the respondents for the specific performance of a contract dated 20-3-1984 and it was dismissed on 26-1-1990 by a learned Civil Judge at Lahore.
Against this judgment and decree, the appellant filed R.F.A. No,70 of 1990 in the Lahore High Court and eventually on 24-11-1990 the parties entered into a compromise before the Division Bench. Ch. Muhammad Nawaz appellant and his counsel volunteered the following statement:-- "Out of the total land measuring 19 Kanals 15 Marlas, the plots under construction are Plots Nos.1, 2, 5, 6, 7, 8, 11, 18, 21, 22, 23, 24, 25, 27, 31, 32, 33, 35, 36, 37 and 38 the total number of the flats being 22 and the total area under the flats and the roads serving them being 6 Kanals 4 Marlas 128 square feet; this area included the area under the roads, which is 12 Marlas and 40 square feet. Out of these plots under construction, five sale-deeds have already been completed. They relate to Plot Nos.1, 2, 22, 25, 26 and 31; the area under these plots comes to 2 Kanals 2 Marlas and 64 square feet.
' The remaining area under the plots and the roads comes to 4 Kanals 2 Marlas and 64 square feet; this includes the area under the roads, which is 12 Marlas 40 square feet.
' I agree that the suit and the appeal be decided in the following terms:-
(a) I will supply full particulars of my nominees to Ch. Muhammad. Amin; respondent No,2, in writing within a fortnight of this order;
(b) I will pay the price of 4 Kanals 2 Marlas and 64 square feet to Ch. Muhammad Amin, respondent, at the rate of Rs,1,30,000 per Kanal within a period of three months. This includes an area of 12 Marlas 40 square feet under the roads. In other words, I and my nominees will be entitled to have the sale-deeds from Ch. Rehmat All and Ch. Muhammad Amin, executed and registered in respect of 3 Kanals 10 Marlas and 24 square feet only.
(c) Ch. Rehmat All and Ch. Muhammad Amin, respondents Nos.1 and 2, will execute the sale-deeds of these plots in my favour or in favour of my nominees within that period;
(d) if I fail to pay the price of these plots to Ch. Muhammad Amin, respondent, within that period, my nominees will have a right to have the sale-deeds of their respective plots executed and registered in their favour from Ch. Rehmat-Ali and Ch. Muhammad Amin respondents, within a further period of three months;
(c) if I or any of my nominees fails to have the sale-deeds executed from Ch. Rehmat Ali and Ch. Muhammad Amin within the abovementioned six months, I and the nominee concerned will lose all rights in that nominee's land;
(f) after the sale-deeds have been executed in my favour, I will have the flats constructed and completed within a further period of nine months commencing from the expiry of the first- mentioned three months and have the sale deeds in respect of the flats and the plots under them executed and registered in favour of the vendees within that period;
(g) If I fail to complete the construction and execute the sale-deeds and have them registered in favour of the vendees within that perked, I will return the money, which I have received from the vendees and in case, I do not repay them, I will be liable to pay them that money, plus 30% thereof in addition by way of penalty. As regards this money, this will be deemed' to be a decree in favour of the vendees against me;
(h) the applicaticu under Order I, rule 10 read with sections 151 and 107 of the C.P.C. Made by Mst.
Rabia Aziz, Ch. Rashid Ahmad, Ch. Sardar Ahmad Zia and Mst. Ana Begum today has been read over to me. I fully understand it and admit that I have received Rs,50,000 from Mst. Rabia Aziz, Rs,50,000 from Ch. Rashid Ahmad, Rs,1,00,000 from Ch. Sardar Ahmad Zia and Rs,1,00,000 from Mst.
Azra Begum and agree that I will repay these sums to these applicants within a period of six months. These applicants will be considered to have been made parties to this litigation and this will be deemed to be a decree in their favour against me. These applicants are left with no rights in the plots or flats proposed to be sold to them;
(1) I also agree that the revision-petitioner Iftikhar Ahmad Butt, Major Muhammad Rafique Hasrat and Lt-Col. Haroon Rashid, be. Treated as parties to this litigation. They are vendees from me and will derive the benefit of this order as if they were parties to the suit; ' as regards the land other than 6 Kanals 4 Marlas and 128 square feet, which comes to 13 Kanals 10 Marlas and 97 square feet, (the total suit land being 19 Kanals 15 Marlas), I or for that matter my nominees or vendees will have no claim whatsoever; to that extent, the land will be the property of Ch, Rehmat All and Ch. Muhammad Amin, respondents. I have surrendered my possession in their favour and the respondents, Ch. Rehmat All and Ch. Muhammad Amin, may deal with it as they please; and
(k) the roads serving these plots will be common and will also serve the plots, which have been or might be sold by Ch. Rehmat Ali and Ch. Muhammad Amin, respondents to other vendees."
2. The above statement was not only accepted by Ch. Rehmat All and Ch. Muhammad Amin respondents herein but also by certain other persons and their lawyer who had joined those proceedings being interested in the disputed property. After recording their statements, the learned Division Bench proceeded to dispose of the R.FA. In terms of the statements so recorded and as a consequence thereof, the judgment and decree, dated, 28-1-1990, passed by the learned trial Court was set aside. It was observed that in terms of compromise certain revision petitioner who were vendees from Ch. Muhammad Nawaz appellant, would be treated as parties to this litigation and would derive benefit from compromise as if they were parties to the suit. Mst. Rabia Aziz and four others pursuant to that compromise were to be repaid certain amounts by the appellant within a period of six months and with the payment of those amounts they were to be left with no right in the plots/flats proposed to be sold to them.
3. It appears that sometime after this compromise the parties started exchanging correspondence and they blamed each other for not abiding by the terms of compromise and ultimately Ch. Muhammad Nawaz appellant on 4.2-1991 submitted an execution petition before the Civil Judge for the execution of the order, dated 24-11-1990, passed by the High Court in R.FA. No,70 of 1990. He also submitted an application under Order 21, rule 34 read with 151, C.P.C. Before the same Court on 21- 2-1991 requesting the Court for getting the deeds finalised from the respondents, who were avoiding to execute the same. He also submitted the draft sale-deeds to be executed by his opponents. Confronted with the draft sale-deeds the respondents raised certain objections and the proceedings continued to linger on for some time. Eventually on 4-5-1991 the executing Court dismissed execution petition as also the appellant's application made under Order 21, rule 34, C.P.C.
By the same order, giving rise to this FA.O.
4. It was argued on behalf of the appellant that he tried his level best to persuade his opponents to execute the sale-deeds in his favour after receiving the sale price, as agreed to by the parties before the High Court in R.FA. But the respondents were, from the very inception, bent upon frustrating the terms of compromise reached by them and went on raising frivolous objections.
According to the learned counsel for the appellant, since the time limit specified in the compromise was running out, his client had to take recourse to the executing Court to enforce the order of the High Court dated 24-11-1990 based on compromise but before the executing Court the respondents adopted the same course of procrastination by raising unfounded objections orally against the draft sale-deeds submitted by the appellant and refused to receive the sale price which the appellant had always been ready to pay in terms of compromise. He blamed the executing Court for not acting in accordance with law inasmuch as it did not ask the respondents to file their objections, if any, in writing against the draft sale-deeds brought on the record by the appellant. According to him, the executing Court as also this Court can extend the time stipulated in the compromise for the execution of the sale-deeds by the respondents in favour of the appellant or his nominees.
5. On the contrary, it was argued on behalf of the respondents that it was the appellant who did not abide by the terms of compromise reached between the parties before the Division Bench of the High Court in the R.FA. Because he, instead of offering and paying the price of land to Ch. Muhammad Amin respondent, offered the same to Ch. Rehmat All respondent, who did not figure in the compromise in that context. Similarly, according to the learned counsel, the appellant, instead of confining the draft sale-deeds to 3 Kanals 10 Marlas and 24 square feet, included more area therein, which was against the terms of compromise and the respondents were within their rights to refuse their execution.
6. The perusal of the statement of Ch. Muhammad Nawaz appellant volunteered by him before the Division Bench of the High Court in R.F.A. No, 70 of 1990, which ultimately, after having been accepted by the opposite-party, materialised into a compromise, would show that in terms of compromise relevant for our purpose, he (appellant) was to pay a sum of Rs,1,30,000 per Kanal to Ch. Muhammad Amin as price of the land measuring 4 Kanals 4 Marlas 64 square feet and the respondents were to execute sale-deeds in his favour in respect of the certain plots covering the total area of 3 Kanals 10 Mamas and 24 square feet because the land measuring 12 Marlas 40 square. Feet was to be left out for roads etc. All this was to be done within a period of three months commencing from 24-11-1990.
7. To my mind, it is the appellant who did not abide by these terms of compromise because, instead of drawing up the sale-deeds in respect of the various plots covering a total area of 3 Kanals 10 Marlas 24 square feet, he drew up the draft sale-deeds for an area of 5 Kanals 4 Marlas and 214 square feet and the explanation therefor, as given by the learned counsel during the course of argument in reply to a Court query, was that his client could not accurately calculate area underneath the plots and when he rechecked it physically on the spot, he found that the area had exceeded 3 Kanals 10 Marlas and 24 square feet. This was not a plausible explanation for the unilateral increase of the area in violation of the terms of compromise, particularly when the parties had during the course of pendency of the R.FA. Before the Division Bench, duly satisfied themselves about the actual area underneath the plots in question. If still the appellant could not calculate the area accurately, then he had to suffer for his own negligence or inefficiency.
8. The perusal of the two bank drafts sent by him to his opponents towards the payment of the price of the land in the alleged discharge of his obligation under the compromise, would reveal that the drafts were prepared in the name of Ch. Rehmat All respondent, while, according to the terms of compromise, the money was to be paid to Ch. Muhammad Amin respondent., For this change the learned counsel for the appellant had no reasonable explanation except that in fact Ch. Rehmat Ali respondent was a central figure in the whole transaction and for that reason the drafts were prepared in his name and sent to him. This was certainly a poor explanation.
9. For various reasons stated above, the executing Court was justified in refusing the execution of the order of the High Court, dated 24-11-1990, A embodying compromise reached between the parties. The appeal, which is formally admitted to regular hearing, is dismissed.