' This appeal is directed against the order of Civil Judge 1st Class, dated 17-3-1999, rejecting the joint application of the appellant and respondent No,6 under section 151, C.P.C., for permission to deposit the balance consideration price amounting to Rs, 3,87,34,450 in terms of the decree for specific performance, dated 21-11-1998.
2. Facts in brief are that respondents Nos.1 to S (hereinafter referred to as sellers) by a written agreement, dated 30-8-1977, agreed to sell the suit property to the appellant (hereinafter described as buyer). The appellant filed a suit for specific performance of the aforesaid agreement. Along with 'the suit an application for .Temporary injunction restraining the sellers from alienating property was also filed. Vide order, dated 29-7-1998 the trial Court accepted the application. The sellers filed an appeal in this Court (F.A.O. No,192 of 1998), which. Was partly allowed to the extent that the application for temporary injunction shall be deemed to have been allowed subject to' the condition that the balance of sale consideration of Rs,3,87,34,450 is deposited by the buyers within three days, which amount, if deposited, shall be invested in some profit bearing scheme. Against the judgment passed in appeal the buyer sought leave to appeal in the Supreme Court of Pakistan. In the said learned Court the parties arrived at a compromise, which was marked ' A' and the terms thereof read as under:--- "(1) that the captioned C.P.S.L.A. Is pending disposal before this Honourable Court and is fixed for hearing on 19-11-1998.
(2) That dispute between the respondents and M/s. Wafi Associates (Pvt.) Limited with respect to a sale agreement relating to property No,134 (Commercial Plot) Block ' E-I' Gulberg-HI, Lahore measuring 3 Kanals, 4 Marlas and 116 Sq. Ft. Etc., as per terms of agreement to sell, dated 30-8-1997 (suit property) is pending disposal before the Civil Court in the shape of a suit for specific performance of contract.
(3) That the Alflah Bank's suit for the recovery of Rs,28,082,782 of 1997 is also pending in the Banking Court against the respondents.
(4) That the parties to the main petition and Alflah Bank have settled the respective disputes pending litigation amicably and with mutual consent. The terms of which are enumerated below.
(a) That M/s, Wafi Associates have agreed to pay and deposit the balance sale consideration of Rs,3,87,34,450 within a period of four months computing from the date of decree.
(b) That on payment/receipt of the aforesaid price of Rs,3,87,34,450 M/s. Tasneem Ismail etc., (Respondents in the petitioner) shall undertake to execute the sale-deed in favour of M/s, Waft Associates regarding Property No,134-EGulberg-III, Lahore measuring 3 Kanals, 4 Merles and 116 Sq.
Ft. (Suit Property) as per agreement of sale, dated 30-8-1997.
(c) That it has been agreed by M/s. Tasneem Ismail etc. (respondents) that after the receipt of the consideration of the aforesaid sale proceeds of Rs,3.87,34,450 a sum of Rs,6.5 million shall be paid to M/s. Alflah Bank' immediately. In consideration thereof the Bank has agreed that it has no objection to the sale of the property to M/s. Wafi Associates as mentioned above and has further agreed to forego all their claims, rights, interest in the above said property.
(d) That the parties have agreed that a joint application shall be tiled on 21-11-1998 before the learned Civil Judge for passing a decree for specify performance of the contract in favour of M/s. Wafi Associates in the terms agreed upon.
(e) That in case M/s. Wafi Associates fail to deposit/pay the balance of price amounting to Rs,3,87,34,450 to M/s. Tasneem Ismail etc. (Respondent) as agreed upon, within the specified period of 4 months, the suit for specific performance shall be dismissed.
' That the parties to, the petition and Bank Alflah have entered into a lawful compromise the terms of which have been recorded above. It is in the interest of justice that the present petition may be disposed of on the above terms.
' It is, therefore, respectfully prayed that this august Court may graciously record the aforesaid terms of agreement and the present petition may kindly be disposed of on the above terms and the learned Civil Judge, (Before whom the suit for specific performance is pending and fixed for hearing on'21-11 - 1998 may kindly be directed to decree the suit in view of the above terms on 21-11- 1998."
3. Pursuant to the decision in the Supreme Court the parties moved the trial Court to take up the case. The buyer moved the trial Court for adjustment in the sale price by way of an application under section 151, C.P.C. The trial Court declined the application for readjustment of the sale price on the ground that the same has been fixed by the Supreme Court in the recorded compromise and it could not modify the said determination. On the same date, i,e,, 21-11-1998 the trial Court decreed the suit in favour of the buyer and against the sellers and made compromise marked 'A' as part of the decree. The plaintiff was directed to deposit Rs,3,87,34,450 in the Court till 21-3-1999, failing which the suit was ordered to stand dismissed. In terms of the above order, a regular decree sheet was drawn up.
4. On 16-3-1999 the buyer and respondent No,6 herein (Mian Abdul Waheed) together filed an application under section 151, C.P.C., praying that "petitioner No,2 i,e, Mian Abdul Waheed be kindly allowed to deposit the balance sale consideration i,e, Rs,3,87,34,450 in this Honourable Court and the decree, dated 21-11-1998 passed in favour of the petitioner No,1 may graciously be transferred in favour of petitioner No,2 and the said decree be ordered to be executed in favour of petitioner No,2 with all rights available to petitioner No, 1 . The bank concerned may also be called to receive their amount." The basis of this prayer was that the buyer has assigned his rights under the decree in favour of respondent No,6 herein by virtue of an agreement, dated 13-3-190, copy of which is attached at page 32 of this file. This application was taken up for consideration on 17-3-1999 and was rejected on the same date in limine without notice to the sellers. The Court relied on Shah Wall v. Ghulam Din alias Gaman and another (PLD 1966 SC 983 at page 1000) to hold that it had become functus officio and could not direct the deposit by petitioner No,2 before it for this amounted to variation of the decree. It is against this order that this appeal was filed in this Court on 20-3-1999 at 2-15'p.m.
5. It is argued by Mian Iqbal Hussain Kalanauri, Advocate for the appellant that the Trial Court has misconceived the situation as the buyer was not seeking any variation in the decree. It is stated that under Order 21, Rule 16, C.P.C., the buyer could and -did validly assign his interest in the decree in favour of respondent No,6 but the trial- Court has failed to take into consideration the provisions of Order 21, Rule 16, C.P.C., as well as the condition No,2 in the agreement to sell, dated 30-8-1997. It is urged that under condition No,2 the sellers have to execute and register sale-deeds 'in favour of the buyer or such person/parties as may be nominated by the buyer. M/s. Talib H. Rizvi and Mian Hamid Farooq, Advocates appearing for seller have refuted the submission by urging that in fact there is no decree which could have been assigned. According to them the executable decree could only come into existence after the deposit of Rs,3,87,34,450 had been made by 21-3-1999, failing which the suit will be deemed to have been dismissed. Reliance has been placed on PLD 1982 SC 292 and 1988 MLD 2248. They have also relied on the definition of decree as given in C.P.C.
6. The detailed resume of facts shows that in, terms of the compromise and after rejecting the plea of the buyers for adjustment of some price, the trial Court passed the decree on 21-11-1998. The formal decree sheet was also drawn. In section 2(2), C.P.C., decree has been defined as:--- decree' means the formal expression of an adjudication which, so far as regards the. Court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit and may be either preliminary or final. It Shall be' deemed to include the rejection of a plaint, the determination of any question within section 144, and an order under Rules 60, 98, 99, 101 or 103 of Order XXI but shall not include---
(a) any adjudication from which an appeal lies as an appeal from an order, or
(b) any order of dismissal for default.
Explanation.---A decree is preliminary when further proceedings have to be taken before the suit can be completely disposed of It is final when such adjudication completely disposes of the SO. It may be partly preliminary and partly.
7. The crucial question, therefore, is whether the trial Court has passed any decree in the case because if the decree has been passed the same could be assigned under Order XXI, Rule 16, C.P.C.
The perusal of the order/judgment, dated 21-1-1998 shows that in so far as the trial Court is concerned the rights of the parties have been finally adjudicated.' The buyer's claim has been upheld by directing him to deposit the specific amount, by a given date and it was also stated that if, the deposit is. Not so made, the suit 'shill stand . The framing of the decree sheet also shows that the Court has nothing more to do. I, therefore; hold that the trial Court had .Passed the-decree within the meaning' of section '2(2), , C.P.C., ' and decree could be validly assigned by the buyer cum decree holder in favour of respondent No,6. The arguments of M/s. Talib Rizvi and. Mian Hatnid Farooq, Advocates that in terms of the agreement as recorded in the Supreme Court, only, the buyer could deposit the sale price, has no force. The terms of compromise nowhere preclude the decree holder to assign the decree or interest therein as this is a right enjoyed by a decree holder under ordinary law. There is also considerable force in the arguments of Mian lqbal, Advocate that under clause 4(b) of the compromise the other conditions of the agreement of sale, dated 30-8- 1997 were kept alive, as according to this clause on payment of the said price, M/s. Tasneein Ismail etc., shall undertake to execute the sale-deed in' favour of M/s. Wafi Associates regarding property, as per agreement to sell, dated 30-8-1997. The condition No,2 in the agreement of safe reads as under:--- "The sellers shall, at the option of the buyer. Execute and register a sale-deed in respect of the plot transferring, selling and conveying all rights title and interest of the sellers in favour of the buyer or such persons/parties as may be nominated by the buyer."
8. Mr. Kalanauri. Advocate is, therefore, correct in submitting that in any case the seller should have no objection whether the deposit of sale price is made by the buyer or by the assignee and that they should be interested that the sale price is deposited according to the time fixed in the decree i,e, 21-3-1999."
9. -The judgments relied upon by Mr. Rizvi proceed on their own facts and are not helpful to resolve the point involved in this appeal, 1998 MLD 2248 is a Single Bench judgment of this Court, in which the point involved was whether a decree for specific performance "amounted to a sale" which could be pre-empted under the Pre-emption Act, 1913 and the answer was given in the negative. It was held that only when the sale. Deed is registered under the decree that the pre-emptor could competently file the suit. In the present appeal the point involved is whether a decree within the meaning of section 2(2), C.P.C., exists, which could be validly assigned.
10. For all .That has been stated above this appeal is allowed and the order, dated 17-3-1999 passed by the trial Court is set aside. The joint application of the buyer and respondent No,6 is allowed. The buyers/assignees are now granted time to deposit amount of Rs,3,87,34,450 up to and inclusive of 13-5-1.999. Parties are left to bear their own costs.