' This judgment will decide Civil Revision No,475-D of 1987 and Civil Revision No,236-D of 1988 as common question of law and facts arise therein.
2. The facts necessary for the disposal of these revisions are that property comprising of land measuring 3 Marlas and 46 S.Ft. Was sold by Mehboob Elahi in favour of Ch. Muhammad Akbar respondent No,1 in C.R. No,475-D of 1987, Manzoor Elahi petitioner herein filed a suit for possession through preemption to pre-empt the sale. The suit was decreed by the learned Civil Judge on 18- 11-1979 and in consequence a decree for pre-emption, was granted subject to payment of Rs,12,500.
3. Ch. Muhammad Akbar respondent filed an appeal to assail the decree. During the pendency of the appeal parties reached a compromise, statements were recorded and the appeal was disposed of in terms thereof. The compromise was to the effect that Manzoor Elahi petitioner was prepared to obtain the entire land 10 Marlas inclusion of the land subject-matter of decree dated 18-11-1979 at the rate of Rs,8,000 per Marla and that he would pay Rs,80,000 the price worked out for 10 Marlas less the amount of Rs,12,500 already deposited by him as pre-emption money and that in such eventuality Ch. Muhammad Akbar respondent would be deemed to have withdrawn his appeal and would be bound to execute sale-deed and to get the same registered in favour of Manzoor Elahi. The compromise further provided that if Manzoor Elahi failed to deposit or pay the amount within the prescribed period of one month the appeal of Ch. Muhammad Akbar would be considered to have been allowed. As a result of statement of parties, the learned Additional District Judge passed a following order on 4-1-1981:-- ' In view of the statements of the parties, it is ordered that the respondent shall pay or tender the balance amount which comes to Rs,67,500 to the appellant within one month from today, failing which the appeal shall stand accepted with costs. It is further ordered that the decretal amount already deposited by the respondent to the tune of Rs,12,500 shall be available for withdrawal to the appellant who would retain the same after withdrawal. The respondent shall have no right over that amount. In case the respondent fails to make the payment or produce himself for registration of the land measuring 10 Marlas, the appeal shall stand accepted. In the alternative, if the appellant fails to get the deed registered of the land measuring 10 Marlas which finds mentioned in his statement with a detail, the appeal shall stand automatically dismissed. The respondent shall be at liberty to get the order of this Court executed through the intervention of the Court. The expenses for the purchase of the stamp papers and for documentation of the deed shall be borne by the vendor."
' Later the respondent did not accept the amount of Rs,67,500 from the petitioner nor appeared before the Sub-Registrar for execution and registration of sale-deed. An application was filed by the petitioner before the learned Additional District Judge on 20-1-1981, stating therein that he was prepared to pay or deposit the amount of Rs,67,500 in accordance with the terms of the order of the Court based on compromise. A notice was issued to the respondent who did not appear and the petitioner was allowed to deposit the sum of Rs,67,500 which he deposited on 22-1-1981.
4. The executing Court passed orders on 2-4-1981 in favour of the petitioner for compulsory execution and registration of the sale-deed. Being aggrieved the respondent went in revision before the learned Additional District Judge against order, dated 2-4-1981. It appears that an application under section 151 of C.P.C. Was also filed by the respondent wherein it was claimed that he had offered to alienate 10 Marlas of land of Rs,80,000 but the petitioner was insisting that the superstructure on the land be also alienated in his favour alongwith the land for the same amount.
It was pleaded that a notice was sent to the petitioner through Zia-ul-Hassan Zaidi, Advocate on 27-1-1981 requiring the petitioner to appear in the office of Sub-Registrar Chakwal on 1-2-1981 for registration of sale-deed but the petitioner did not turn up and subsequently filed execution application. The learned Additional District Judge in his order, dated 5-11-1981 reviewed his earlier order, dated 4-1-1981, whereby the appeal was decided in terms of compromise. In result the order, dated 4-1-1981, was set aside with the observation that the execution of the order had become impossible, therefore, the order was recalled, appeal restored and the sam would be decided on merit. The amount of Rs,67,500 deposited in the treasur was ordered to be returned to the petitioner.
5. The order of the learned Additional District Judge dated 5-11-1981 was challenged in F.A.O. No,41 of 1981 which was allowed on 30-3-1985. While accepting the appeal it was observed that the learned Additional District Judge did not have any jurisdiction to review his earlier order or to set aside the order which was passed with the consent of the parties. In the concluding paragraph of the order it was observed that it will be for the executing Court to ascertain as to whether the judgment and decree, dated 4-1-1981 is executable or not and to what extent it could be executed and all questions relating to execution, discharge and satisfaction of the decree will be determined by the Court executing the decree.
6. In post remand proceedings the executing Court framed the following issues on the objections raised to the executibility of the decree:-- Issues.
(1) Whether the order, dated 4-1-1981 and decree, dated 18-11-1981 are executable?
(2) Order.
7. After considering the evidence and hearing the two sides, the learned Civil Judge Chakwal, concluded that it could not be said that the decree holder had refused to comply with the terms of the agreement and, therefore, he could not be refused right to get the decree, dated 18-11-1979 executed. He further held that order, dated 4-1-1981 regarding agreement in respect of remaining 7 Marlas of land would not be executable in those proceedings but, however, the decree-holder Manzoor Elahi could avail the remedies if he so desire, through a separate suit.
8. The order of learned executing Court was challenged in two appeals by the parties which were dismissed by the learned Additional District Judge Chakwal on 2-9-1987. The view taken by the learned Additional District Judge was that the original decree could be executed and the compromise at the appellate stage was a mere agreement to sell the remaining portion of land which could not be enforced through execution of the initial decree and for that the petitioner would have to file a separate suit. The prayer for treating the application as suit was also not entertained.
9. Civil Revision No,475-D of 1987 has been filed by Manzoor Elahi decree-holder while Civil Revision No,236 of 1988 has been filed by Ch. Muhammad Akbar respondent/judgment-debtor. The decree- holder has prayed for permission to execute decree against 10 Marlas of land while the judgmnetdebtor Manzoor Elahi is objecting to the executibility of the decree even to the extent of three Marlas.
10. Learned counsel for the decree-holder argued that the parties entered a compromise in appeal in terms whereof the decree was passed and that the petitioner could execute the same in law. It was added that executing Court could not go beyond the decree and had to execute the same.
Lastly it was submitted that in any case the application before the executing Court could have been tried in part as execution application and as a suit to enforce the decree and also to enforce the remaining part of the agreement.
11. Conversely learned counsel for Ch. Muhammad Akbar, judgment-debtor and petitioner in Civil Revision No,236-D of 1988, Kh. M. Farooq, Advocate, argued the case while he was represented in Civil Revision No,475-D of 1987 by Mr. Muhammad Munir Peracha, Advocate. Both the learned counsel argued that the compromise to sell 7 Marlas of land was a mere agreement which was beyond the scope of the original suit and, therefore, neither any decree could have been passed on the basis thereof nor any decree was allowed and the remedy of the petitioner would be by way of suit instead of execution proceedings. It was further contended that the petitioner could not execute the decree even to the extent of three Marlas as he had failed to deposit the money in terms of the compromise. Referring to the compromise at appellate stage it was argued that the terms of the compromise provided that if the amount is not deposited within one month, the appeal would be deemed to have been accepted , and in view of the default on the part of the petitioner, the appeal of the judgment-debtor would be deemed to have been accepted and in result the suit would be deemed to have been dismissed in totality.
12. As far as Civil Revision 236-D of 1988 is concerned, the plea of Ch. Muhammad Akbar judgment- debtor is that the decree-holder did not comply with the terms of the compromise made in appeal and, therefore, the appeal against the original decree would be deemed to have been accepted.
The plea is not well founded. As a matter of fact this question had already been dealt with in the earlier round of litigation when F.A.O. No,41 of 1981 was decided. In the said order it was expressly observed that the judgment-debtor did not accept the amount of Rs,67,500 from the decree- holder nor appeared before the Sub-Registrar for execution and registration of the sale-deed and that the decree-holder moved an application before the learned Additional District Judge on 20-1- 1981 stating that he was prepared to pay or deposit the amount of Rs,67,500 in accordance with the terms of the order of the Court passed on compromise of parties but neither the respondent accepted the money nor appeared before the Sub-Registrar. Notice was ordered to be issued to the judgment-debtor, for 22-1-1981. In spite of notice he did not appear and the appellate Court directed deposit of Rs,67,500 which was duly deposited on 22-4-1981. This being so, it cannot be said that the decree-holder had not complied with the terms of the compromise or had not deposited the amount within the requisite period. It was also observed in the said order that the circumstances reveal that the plea regarding dispute over the superstructure was an after thought and was coined only to avoid compliance of judgment and decree passed by the appellate Court on 4-1-1981. The objection to the execution of the decree on the ground of existence of superstructure was raised by the judgment-debtor. It is, thus, obvious, that in a way the judgment- debtor was found to be at fault while setting aside the review order of the appellate Court.
Although in the last paragraph of the judgment, it was observed that the question of executibility of the decree will be considered by the executing Court but the said observation appeared to be in context with the objection raised in regard to the execution of the decree in excess of three Mamas.
One of the objection to the execution was that the suit pertained to three Marlas, therefore, the later part of the compromise permitting sale of seven Marlas of land in favour of the decree-holder was beyond the scope of the suit and, therefore, the decree would not be deemed to have been passed in regard thereto and it should be considered to be an agreement, enforcement whereof should be secured by regular suit. It was in that context that the execution of executibility of the decree was left open for the executing Court to determine.
13. Be that as it may, the record indicates that the suit of pre-emption was decreed. The decree- holder deposited the amount of pre-emption. Even the remaining amount for the land measuring seven Marlas was also deposited within the time agreed in the compromise. In this way, it cannot be said that the decree-holder had defaulted in complying with the terms or that the appeal of the vendee/judgment-debtor tried to be accepted. The learned Courts below, therefore, rightly rejected the objection of the judgment-debtor, to the extent of execution and the decree covering the property subject-matter of the initial decree. Civil Revision No,236-D of 1988 is, therefore, without merit which is accordingly dismissed.
14. The next question is as to whether the compromise made in the appellate Court regarding sale of two Marlas of land, so as to make the total land as ten Mamas, was executable as a decree.
Admittedly, land measuring seven Mamas was not subject-matter of suit or the decree passed by the trial Court. The suit for pre-emption relating to three Marlas and few sq.Ft. Of land which was decreed in favour of the decree-holder. Appeal was filed by Ch. Muhamamd Akbar vendee. In appeal the compromise was made on 4-1-1981 Whereby the decree-holder agreed to deposit Rs,67,500 within one month for purchasing additional land measuring seven Marlas. This portion of the land did not form part of the sale subject-matter of pre-emption nor it was a part of decree.
Even it was not part of subject-matter of dispute in appeal. In terms of the compromise which was recorded in the order of the Court, the judgment-debtor agreed to sell his remaining land of seven Marlas to ,the decree-holder. The decree-holder has applied for execution of decree to the extent of 10 Marlas inclusive of seven Marlas which were not subject-matter of the suit or the initial decree.
The objection is that neither any decree could be passed in excess of the subject matter of suit nor the compromise reflecting an agreement to sell any part of the property not subject-matter of the initial decree/suit can be deemed to be a decree.
15. In" Messrs Amin Cotton Co. Ltd. v. Messrs Muhammad Jamil & Co." (PLD 1967 Karachi 795), it was observed that a compromise decree is a contract between the parties and its breach would give rise to a cause of action to the other party to approach the Court for seeking relief. It was ruled that compromise decree is a contract with superadded command of the Judge.
16. In" Sree Nalini Kanta Sen v. Babu Monaranjan Prashad Barman" (PLD 1967 Dacca 155), it was observed that under Order XXIII, Rule 3 of C.P.C. The Court must satisfy that the compromise was lawful and the compromise should relate to the subject-matter of the suit. It was further observed that the Court can record compromise in regard to the part subject-matter of the suit.
17. In" Mst. Saeed Akhtar and others v. Lal Din and 6 others" (PLD 1981 Lah. 623), it was ruled that no decree can be passed in respect of the subject-matter not relating to the suit.
18. In "Sindh Road Transport Corporation v. Major (Rtd.) S.M. Ali Zaheer Khan" (1991 SCMR 425), it was observed as follows:-- "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."
19. From the rule laid in the cases noted (supra), it will be clear that the decree could not travel beyond the scope of the suit and that the agreement to B sell seven Marlas of land was a mere agreement of sale which could be enforced through the suit for specific performance. The execution of the decree beyond, three Marlas of land, was not permissible and, therefore, the executing Court and also the appellate Court did not commit any error in observing that the decree was inexecutable to the extent of seven Marlas of land which was extraneous to the suit and was not forming part of the initial decree. To this extent, the order of the Courts below do not suffer from any error of law.
20. As regard the request for treating the application, partly as a suit for specific performance, the view taken by the Courts below cannot possibly sustain. The appellate Court was of the view that the suit had become barred by time and, therefore, the application could not be treated as a suit.
This part of the order of the Courts below is not in accord with law. It is a settled principle of law that one kind of proceedings can be treated as other kind of proceedings. A suit can be treated as an application and an application can be treated as a suit. A suit can be treated as an application under section 12(2) of C.P.C. And decided as such. Even in the matter of amendment, the Court can grant amendment despite objection of limitation. Reference can be made to the rule laid in PLD 1985 SC 345.
21. In 1992 SCMR 1744, it was ruled that a suit can be treated as an application under section 12 (2) of C.P.C. On the same principle, the Court did possess jurisdiction to treat the execution application as a suit for enforcement of the agreement recorded in the order of the appellate Court, if the Court concluded that execution of the decree was not possible. The objection of limitation could not prevent the Court from exercising jurisdiction, provided the other circumstances justifying indulgence in discretionary jurisdiction were available. The Courts below did not examine the question of treating the execution application as a suit on merit but instead rejected the prayer on technical objection of limitation which objection has not sustained. Since it is held that the request for treating the application as a suit could not be rejected on the grounds of objection of limitation and that the same should have been attended to on merits, therefore, this question is left open for the decision of the executing Court. The executing Court while dealing with this question will take into consideration the fact that the compromise was made before the appellate Court, the amount has already been deposited under the orders of the Court, the decree-holder has been pursuing his remedy of execution, under advice that the decree was executable and that due to legal objections, the decree could not be executed in regard to the part of the relief not forming subjeci matter of the suit, After examining all these questions, the executing Court will pass order in accordance with law and on its own merits.
22. For the reasons above this revision is disposed of with the observation that the decree of the Court will be executable to the extent of three Marlas and 46 Sq. Ft, and that the compromise regarding seven Marlas of land being an agreement extraneous to the subject-matter of suit, the decree to the extent thereof cannot be executed while the question of treating the execution application as a suit will be determined by the executing Court in accordance with law and on its own merits, in the light of the observation herein-above.