' The relevant facts for the decision of this second appeal are that one Nabi Bakhsh owned land measuring 14 Kanals, 15 Marlas at Chah Mochi Wala while the respondents owned laid. Measuring 6 Kanals, 6 Marlas at Chah Musa Wala in village Shahbazpur, Tehsil Alipur, District Muzaffargarh. They agreed to exchange the land owned by them with each other. Accordingly the exchange was entered in the Revenue Record and Mutation No,3289 attested on 9th of December, 1962. It seems that subsequently there was some dispute between the parties. The result was that Nabi Bakhsh filed a suit for declaration to the effect that he continued to be the owner of his land situated at Chah Mochi Wala and was not bound by the mutation. The respondents resisted the suit. The Trial Court framed the issues, recorded evidence and suit was ultimately decreed vide judgment dated 22-10-1963 placed on record as Exh. P-5. Thereafter, the said parties entered into an agreement placed on record as Exh. P-1 according to which the parties agreed to be bound by the exchange and thereafter Nabi Bakhsh sold the land at Chah Musa Wala to the respondents through sale- deed Exh. P-2, copy also placed as Exh. D-2. The petitioner filed suit to pre-empt this sale. The suit was resisted by the respondents amongst, others on the grounds: that it is barred by _limitation and the transaction is not pre-emptible. The parties led their respective evidence. The Trial Court after hearing the arguments decreed the suit vide judgment, dated 30th of March, 1968 which was assailed through an appeal before the First Appellate Court. The appeal was accepted by the learned Additional District Judge, Muzaffargarh vide judgment and decree, dated 13th of December, 1968, which has been assailed through the present appeal which was admitted to hearing and notice was issued to the respondents who have entered appearance through Mirza Aziz ,Akbar Baig, Advocate and contested the appeal.
2. The learned counsel for the appellant argued that the exchange was set aside by the decree of Civil Court Exh. P-5, therefore, Nabi Bakhsh remained owner of land at Chah Mochi Wala while respondent continued to be owners of land of Chah Musa Wala. It is added that for this reason the sale effected through Exh. P-2 is to be treated as sale of land by Nabi Bakhsh of his land at Chah Mochi Wala and not of the land at Chah Musa Wala. It is argued that the respondents and Nabi Bakhsh could not set at naught the decree of Civil Court by mutual agreement, therefore, the agreement Exh. P-1 is of no legal consequence. It is added that the suit was competeht and within limitation as held by the Trial Court. The First Appellate Court failed to appreciate factual controversy, the legal position and this resulted in a wrong decision.
3. On the other hand Mirza Aziz Akbar Baig, argued that the right of preemption is a right of substitution and the petitioner cannot get land other than subject-matter of the sale. It is added that the decree created civil right, which could be adjusted and liabilities created discharged by the parties of their own free-will. It is argued that before the amendment of Rule 2, Order XXI, C.P.C.
Through amendment Ordinance XII of 1972, it was permissible for the parties to make oral adjustment of a decree. It is added that since the decree was not executed, therefore, same lost its force. The learned counsel for the appellant while summing up the arguments, submitted that since it was a purely declaratory decree, therefore, no execution was necessary and in this behalf he has referred to the judgments reported as The State of Pakistan and others v. Mehrajuddin (PLD 1959 SC (Pak.) 147) and (PLD 1973 Karachi 386).
4. I have given my anxious consideration to the arguments of the learned counsel of the parties and gone through- the record and relevant provisions of law as well as the precedent relied on behalf of the appellant. The main question for determination is whether decree of the Court could be adjusted or discharged by .The parties without the intervention of the Court.
5. Section 47, C.P.C. Provides that all questions between the parties relating to execution, discharge or satisfaction of the decree shall be determined by the Executing Court. While according to rule 2, Order XXI adjustment and satisfaction is possible. It is, therefore, clear that parties are at liberty to adjust their rights and liabilities accrued under the decree or a decree-holder may discharge the judgment-debtor of his obligation under the decree. Before the Ordinance XII of 1972 oral adjustment was possible but now the amended clause of Rule 2 reads as under:-- "Payment out of Court to decree-holder:
(3) Any payment not made in the manner provided in rule 1 or any adjustment not made in writing shall not be recognized by the Court executing the decree."
' It was held in the case of "Hotchand Tolaram v. Premchand and others (AIR 1931 Sindh 42) that oral agreement between the parties amounts to adjustment. This was with reference to Rule 2, Order XXI. The word adjustment came for interpretation in the case of Lodd Govindoss v. Ramdoss (1915)
28 IC 376) and it was held:-- "A transaction which extinguishes the decree as such in whole or in part and result in a satisfaction of the whole or a portion of the decree in respect of the particular relief or reliefs granted by the decree."
' This provision was also interpreted in the case of Abdul Karim and others v. Hakim Mal - Tani Mal where the acceptance of payment of the decretal amount in instalments was treated as adjustment.
6. The precise legal question was considered in case of Oudh Commercial Bank Ltd. Fyzabad v.
Thakurain Bind Basni Kuer and others, and it was held that it may or may not be that any and every bargain which would interfere with the right of the decree-holder to have execution according to the tenor of the decree comes under the term ' adjustment'. It was held as under: "If it appears to the Courts, acting under section 47, that the true effect of the agreement was to discharge the decree forthwith in consideration of certain promises by the debtor, then no doubt the Court will not have occasion to enforce the agreement in execution proceedings, but will leave the creditor to bring a separate suit upon the contract."
7. It is argued by Mirza Aziz Akbar Baig, Advocate, that the decree was adjusted by the parties but I would hold Nabi Bakhsh discharged the respondents of their obligations under the decree Exh. P-5 through agreement Exh. P-1. The result was that the parties were relegated to the positions before the judgment and the decree. In other words the Nabi Bakhsh and the respondents ultimately decided to accept the exchange effected through Mutation No,3239 as valid and binding. This way Nabi Bakhsh once again became owner of land at Chah Musa Wala, which he proceeded to sell to the respondents through sale-deed Exh. P-5.
' The word 'discharge' has been assigned following meaning in the Black's Law ,Dictionary (5th Edition):-- ' Discharge: "To release; liberate; annul; unburden; disincumber; dismiss. To extinguish an obligation; terminate eployment of person; release, as from prison, confinement or military service."
' It is in short to liberate a person from the obligation, debt or claim.
8. The agreement Exh. P-1 clearly is an instrument of discharge of liability under the decree. Neither any specific form of the instrument of discharge nor any formalities have been specified in the C.P.C., therefore, the effect of each agreement has to be determined in each case on its merits. The term adjustment and discharge cater for the two different eventualities. There is a thin but clear line of distinction between the two terms. It was held in the case of Muthu Vaithelinga v. Subbaraya Chettiar (AIR 1930 Madras 410) (123 Indian Cases 604) that the adjustment did not include in an agreement to discharge the decree. If looked from angle the term discharge is wider in effect than adjustment.
9. Nabi Bakhsh not only entered into agreement but it was also acted upon when he proceeded to execute and register sale-deed in respect of land at Chah Musa Wala in favour of the respondents.
In any case the petitioner does not possess locus standi to object to the concession given by Nabi Bakhsh to the respondents.
10. The appellant was misadvised to file suit for possession in exercise of superior right of pre- emption in respect of the land at Chah Mochi Wala because Nabi Bakhsh sold the land at Chah Musa Wala, which he got in pursuance of the exchange deed. Therefore, at least Issue No,2 was wrongly decided by the Trial Court. The suit was not competent at all.
' The upshot of the above discussion is that there is no merit in this appeal, the same is dismissed.