1. ' USMAN ALT SHAH, J.-This intra-Court appeal is directed against the judgment of his Lordship the Acting Chief Justice of this Court dated 28th July 1977 by which he, in his capacity as Company Judge, partially allowed the execution application of the present appellants filed by them on the basis of the judgments of the Supreme Court of Pakistan which will be referred to hereinafter. The grievance of the appellants is that his Lordship the Acting Chief Justice (hereinafter called the learned Company Judge) was bound to execute and implement the order of the Supreme Court in letter and spirit passed in Civil Appeal No, 81 of 1976 in regard to which necessary direction was again issued to this Court by the Supreme Court in its subsequent order dated 11th April 1977 in Civil Misc. Petition No, 5-R of 1977. But the learned Company Judge instead of executing and implementing the order in question of the Supreme Court in its entirety. Dismissed the execution application as concerns relief sought by appellants Nos, 2 and 3 namely, Major-General (Retired)
2. Jebanzeb Khan and Sairab Hayat Khan, and partly allowed it as concerns relief sought by appellant No, 1, namely. Salahuddin Khan, in that be only directed the respondents that In view of the agreement dated 4-1-1976 adopted and confirmed in the meeting of the Board of Directors held on 74-1976 and embodied in the order dated 24-11-1976 of the Supreme Court of Pakistan in Civil Appeal No, 81 of 1976, Salabuddin Khan be allowed to perform his duties and functions as Chief Executive of the Takbt Bhai Sugar Mills & Distillery Ltd. Until 31-1-1978 unless be is sooner removed or he ceases to hold office in accordance with law.
3. ' It will be pertinent to mention here that the aforesaid agreement dated 4-1-1976 was reached between the parties in the Governor's house, N.-W. P. P. And according to it, appellant No, t.
4. Salahuddin Khan, would be the Chief Executive of the Company (Takht Bhai Sugar Mills & Distillery Ltd.) while appellant No, 3 Sairab Hayat Khan, would be its General Manager and appellant No, 2, Major-General (Retd.) jehanzeb Khan, would be the Director (co-opted).
5. ' The respondents have also filed an objection application in these proceedings praying that the order of the learned Company Judge declaring the removal of Salahuddin Khan as without lawful authority be set aside and direction contained in paragraph 23 of his impugned judgment be set aside.
6. ' We propose to dispose of the appeal and the objection application both by this judgment.
7. ' The care bas a long Watery, in that there were up to the Supreme Court of Pakistan multifarious proceedings between the parties. The facts of the case base been elaborately discussed in the judgment of the Supreme Court of Pakistan dated 11th February 1975, recorded by his Lordship Mr. Justice S. Anwarul Haq (now Chief Justice of Pakistan) printed in Salahuddln and 2 others v. Frontier Sueor Mills & Distillery Ltd. Takht Bhai and 10 others (1). We do not reel called upon to discuss the history of the case in full detail. For the purpose of the disposal of the present proceedings, we would confine ourselves to what is material and necessary in the light of the arguments addressed before us by the learned counsel for the parties.
8. ' The Takht Bhai Sugar Mills & Distillery Ltd. Was incorporated as a Joint Stock Company in 1938. Taj Muhammad Khanzada became the Managing Director of the Company and continued in that capacity up to 15-1.1972 when on if at date the Companies (Managing Agency and Election of Directors) Order, 1972 (President's Order No, 2 of 1972) was promulgated in view of which he ceased to hold the office as did the Directors nominated by him in his capacity as Managing Agent.
9. Pursuant to this Presider t's Order, the Board of Directors fixed the number of Directors at 9 in the meeting held on 10th March 1972.
10. ' On 31st March 1972, the annual general meeting of the shareholders was held in which new Directors were elected, including Sairab Hayat Khan. These newly elected Directors met on 15th April 1972 and after some consideration Salahuddin Khan appellant No, 1 was appointed as Chief Executive of the Company in terms of the President's Order No, 2 while respondent Taj Muhammad Khanzada was appointed as Resident Director. Respondent Khanzada instituted a declaratory suit challenging the proceedings of the annual general meeting of the bbareholders held on the 31st March 1972. The first phase of this litigation ended with the judgment of Supreme Court of Pakistan reported in PLD 1975 SC 244 in which it was, inter alla, held :-- "We have already seen that offices of Director or Chief Executive of as joint-stock company are public offices, and for that reason they are amenable to the jurisdiction of the High Court under Article 201 of the Interim Constitution. That being so, any direction or declaration regarding the lawful authority of the incumbent of such an office, or the re-instatement of a only elected or appointed Director or Chief Executive would not amount to interference with the internal management, but would be, on the contrary, a step for the advancement of the public interest by ensuring that the company is managed according to law by those who ate legitimately entitled to do so. The office of Director or of the Chief Executive, who is also deemed t be a Director if not otherwise a Director, being a public office, is not to be regarded as being merely employment under the company and, therefore, in such a case the Court is not seeking to enforca contract of personal service. It seems to us, therefore, that a operative order in favour of the appellants, or against the respondents cannot be refused on the basis of these objections, if it is otherwise warranted."
11. ' At pages 270-71 it was further held : "After giving our anxious consideration to the large number objections urged by Mr. Mabmood All Qasuri, we are of the vie that they do not affect the validity or authenticity of the decider taken at this meeting. We have already mentioned that the factual
(1) PLD 1975 SC 244 of the meeting is not disputed by the respondents. In the suit filed by respondent Taj Muhammad Kbanzada and his nephew Zaib Alam Kbanzada on the 12th of May 1972, in the Court of Senior Civil Judge at Mardan the fact that appellant Salahuddin Khan had been appointed as Managing Director at a meeting of the Board of Directors held on 15-4-1972 was conceded, but the legality of this appointment was challenged on the ground that it had been made by the nine illegally elected Directors of the Company. Mr. Qasuri was not able to show that in that suit respondent Kbanzada had expressed any doubt regarding the authenticity of the minutes of this meeting of the Board of Directors, nor was any grievance made at that time of any chaos or confusion created by the appellants or of any prejudice having been caused by want of a formal agenda. It is clear, therefore, that the objections raised by the five Directors, belonging to the opposite camp, regarding the genuineness of the minutes of this meeting were in the nature of an afterthought.
12. ' It was in pursuance of those decisions that the Administration Committee, consisting of three Directors, met on the 16th April 1972, to consider the question of the allocation of duties etc. Between the two office-holders. The respondents, particularly respondent Kbanzada, were bound by these decisions and could not unilaterally repudiate them, as the two important appointments were made as a result of mutual compromise between the opposing factions of the Directors of the Company. The question no v is about the effect of the proceedings taken at the extraordinary meeting of the shareholders held on the 15th of June 1972 on the requisition of certain shareholders."
13. ' In the concluding paragraph of the judgment, it was held :- "We are of the view that these considerations apply with full force in the case before us. As we have found the appellants to be lawfully entitled to the office claimed by them, and we have also found that the respondents have illegally usurped those offices, it follows that both the parties stand restored to the position obtaining immediately before the meeting of the 15th of June 1972 in accordance with the decisions taken at the meeting of the shareholders held on the 31st March 1972, and the meeting of the Board of Directors held on 15-4-1972. They are entitled to hold their respective offices for the unexpired portions of their terms under Article II of the Presidential Order of 1977, unless they are sooner removed or otherwise cease to hold office in accordance with law.
14. The period for which their tenure of office has been illegally interrupted shall not be counted."
15. ' Now, it is submitted by the learned counsel for the appellants, the directions contained in the above judgment of the Supreme Court of Pakistan were not implemented with the result that Salahuddin Khan filed Writ Petition No, 109 of 1976 in this Court but it was dismissed on 16th July 1976. Salahuddin Khan then filed in the Supreme Court of Pakistan Petition for Special Leave to Appeal No, 5-R of 1975 which was allowed and the petition was accordingly converted into Civil Appeal No, 81-R. Of 1976. This appeal was disposed of by the Supreme Court of Pakistan by its order dated 24th September 1976, on the basis of a compromise arrived at between the parties to the emit that : "(I) Both the parties accept that the agreement dated 4th January 1976, at in a meeting held at the Governor's House, Peshawar and later incorporated in the minutes of the Directors meeting held on the 7th January 1976, is binding on the parties."
(2) In accordance with the aforementioned agreement, the following shall continue as Directors of the respondent-Company t- "(1) Taj Muhammad Khanaada.
(2) Salahuddin Khan.
(3) Sairab Hayat Khan.
16. (4)
(5) .
(6) ..
17. (7)
18. (8)
19. (9)
(10) Major-General (Retd.) Jehanzeb Khan.
20. These Directors shall hold office until 31st January 1978, unless they or any of them is sooner removed or ceases to hold office in accordance with law."
(3) The respondents undertake to withdraw the orders dated 5.5-1976 and 16-8-1976 by which the appellaht was suspended and later removed from the office of the Chief Executive of the respondent Company. A resolution to this effect will be passed within a week.
(4) The appellant shall continue to hold office of the Chief Executive of the respondent-Company till 31st January 1978, unless sooner removed or he ceases to hold office in accordance with law. He will perform his duties and functions as Chief Executive of the company in accordance with law and the decisions taken by the Board of Directors, in accordance law with.
(5) The books of the company shall be returned to the registered office of the Company by the appellant and they shall not be removed from there except in accordance with law."
21. ' In consequence of the above agreement reached between the parties, their Lordsbips of the Supreme Court in the concluding paragraph of the judgment observed that "as the compromise is in the interest of smooth functioning of the Company, we accept the same and dispose of the appeal in terms thereof leaving the parties to bear their own costs".
22. ' It is this order of the Supreme Court of Pakistan the execution and implementatton of which was sought by the present appellants before the learned Company Judge through execution application which his Lordship disposed of by his judgment dated 28th July 1977, impugned in the present appeal. The prayers made in the execution application bled before the learned Company Judge were : "(a) That this learned Court may execute the judgment of the Supreme Court of Pakistan dated 24th November 1976, in letter and spirit and ensure that the affairs of the Company are managed in accordance with law declared by the Supreme Court of Pakistan. It is further prayed that all actions taken by the respondents in violation of the aforesaid judgment of the Supreme Court and of law be treated as nullity and being of no legal effect whatever.
(b) It is further prayed that in accordance with the law laid down by the Supreme Court of Pakistan, the tenure of the petitioners be directed to be Increased by the period/periods during which they have been denied the right to perform their functions by the respondents.
23. (c)It is also prayed that costs of this petition be allowed to the petitioners as also special costs for deliberately violating the directions of the Supreme Court of Pakistan surd of law."
24. ' It will be necessary to mention here that before filing the above execution application before the learned Company Judge, appellant Salabuddin Khan had filed Civil Misc. Petition No, 5 of 1977 before the Supreme Court that respondent Taj Muhammad Khanzada be committed to contempt of that Hon'ble Court, for be failed to obey its order dated 24th September 1976, according to which he had undertaken to comply with the agreement incorporated in that order. According to their Lordships of the Supreme Court, however, contempt proceedings against respondent Taj Muhammad Khanzada were not called for and while disposing of the aforesaid petition by order dated 11th April 1977, this is what their Lordships of the Supreme Court observed :- "However, we consider that action by way of contempt is not the proper remedy in this case, as we cannot convert ourselves into an executing agency in respect of the matters comprised in the undertakings embodied in our order of the 24th of November 1976. For a proper resolution of the controversy now brought to our notice by the petitioner it would be necessary to examine the facts and documents supporting the allegations made by the petitioner. We consider that it would be more appropriate if these matters are agitated before the learned Company rudge in the Peshawar High Court, who may issue necessary directions for the implementation of the mutual settlement between the parties as embodied in the aforesaid order of this Court."
25. ' In consequence of the above order, the present appellants accordingly filed the execution application before the learned Company Judge and his Lordship, by the aforesaid order of 28th July 1977, disposed it of in the following manner :- "In that view of the matter this Court "as Executing Court cannot determine at ibis stage whether the said judgment/order of the Supreme Court is declaratory or executable and no argument contrary to what has been held by the Supreme Court, in that regard, can be entertained."
26. ' In paragraph 20 of his judgment his Lordship further held :- ' Therefore, calling of the meeting of the Board of Directors or for that matter of the shareholders on 31-3-1977 and taking a decision to terminate the service of petitioner could hardly be justified. In fact such action betrays lack of good faith."
27. ' In paragraphs 22 and 23 of the judgment, his Lordship came to the conclusion :- "22 The relevant executable part, so far as petitioner No, 1 is concerned, of the judgment/order dated 24-11-1976, referred to above, is that Mr. Salahuddin Khan shall be allowed to perform his duties and functions as Chief Executive of the respondent-Company in accordance with law and the decisions taken by the Board of Directors in accordance with law. He has to continue his functions as such till 3i-1-1978, unless sooner removed or he ceases to hold office in accordance with law. To that extent a direction can he issued and is thus being issued to respondents 2 to 6 to allow Mr. Salabuddin Khan petitioner to perform his duties and functions as Chief Executive of the respondent-Company in terms cf the agreement dated 4-1-1976 adopted and confirmed in the meeting of the Board of Directors held on 7th January 1976, and as embodied in the judgment/order dated 24-11-1976 of the Supreme Court of Pakistan in Civil Appeal No, 81 of 1976 till 31-1-1978 unless he Is sooner removed or he ceases to hold office, in accordance with law. He shall exercise the powers and perform the duties and functions as Chief Executive of the respondent- Company in accordance with law and according to the decisions taken by the Board of Directors in accordance with law. In quantum and nature, these powers, duties and functions shall be the same as are exercised and performed by his counterpart Major General (retired) Sherin Kban in Charsadda Sugar Mills. Removal of Mr. Salabuddin Khan from the office of the Chief Executive of the respondent-Company on 31-3.1977 during the pendency in CHI Misc. S of 1977 and in particular after the passing ' of the interim order dated 8-3-1977 in those proceedings could not be considered as valid or to be having legal backing.
(23) It is hoped that these directions shall be complied with, by both the parties in letter and spirit and in a spirit of accommodation and in the interest of the smooth running of the Mill. So far as petitioners Nos, 2 and 3 are concerned, I have already held that they have no locus standi to seek their relief through the present execution petition."
28. ' It is contended by the learned counsel for the appellants that the learned Company Judge has erred in not allowing the prayer of appellant No, 1 that the period during which he had been unlawfully deprived of his office as Chief Executive of the Company be added to the period ending on 31-1-1978, and in so far as his finding that appellants Nos, 2 and 3 have no locus standi to claim relief before him is concerned, it is not supported by tie material on record as also that it is clearly contrary to law. He urged that Sainab Hayat Khan could not be removed from the office of General Manager except in accordance with law and since he has not been so removed, his re-instatement should have been ordered. He further urged that the learned Company Judge has failed to execute and implement the judgment of the Supreme Court dated 24-11-1976, in so far as the emoluments claimed by appellant No, 1, Salabuddin Khan for the period from January to April 1976 are concerned, for according to him, his removal during that period was unlawful.
29. ' The first objection raised before us by Mr. S. M. Zafar, the learn counsel for respondents is that the relief granted to the appellants by the Supreme Court was in the nature of declaratory relief which does not adm of execution and therefore the learned Company Judge has erred in having passed the order under appeal. In reply to this objection we are constraine to advert to the judgment of the Supreme Court of Pakistan dated 1 It April, 1977. Their Lordships of she Supreme Court observed that "W cannot convert ourselves into an executing agency in respect of the matter comprised in the undertakings embodied in our order of the 24th of Novem 1976". In view of fiese observations, it would be obvious that their Lordships were fully aware that the nature of relief sought by present appellants before them was the execution of the order dated 24th November 1974. Their Lordships did not even remotely suggest that the order was not capable of execution because of any bar, legal or otherwise. On the other hand, their Lordships expressed themselves in very clear terms that the order in question would be executed in the High Court, for the Supreme Court cannot be supposed to execute its own order. It would, therefore, be manifestly clear that the reference was for no other purpose than that of executing the order of 24th November 1976. In this respect, we are yet fortified by another observation of their Lordships that "the learned Company Judge in the Peshawar High Court will issue necessary directions for the implementation of the mutual settlement between the parties". This would clearly indicate that the learned Company Judge before whom the matter was to be placed by the appellants was to issue direction for the implementation of the agreement and it can hardly be denied that this means the execution of a decree. A fortiori therefore, we cannot go into the question whether the order of the Supreme Court is executable or not in view of the clear direction made for execution and implementation of the agreement reached between the parties.
30. ' Mr. S. M. Zafar, the learned counsel next argued that once the Board of Directors withdrew the offensive resolution which the Supreme Court directed it to withdraw, the order of that Hon'ble Court stood executed. He submitted that Salahuddin Khan was thereafter again removed by Board of Directors and there was no bar against his removal. Accoodingly to the learned counsel, there was, therefore, no order in the field which wa to be executed. It has already been indicated above that the learned Company Judge did not approve of this submission and we agree with for the agreement was not acted upon sincerely and in good faith.
31. ' Mr. S. M. Zafar further contended that Salahuddin Khan was the only person who had gone to the Supreme Court and therefore the order of that Hon'ble Court could be executed only, so far as his rights are concerned. He submitted that Sairab Hayat Khan and Major-General (Retd.) Jehanaeb Khan wore not parties to the proceedings before the Supreme Court. Therefore, they could neither be proper parties before the Court in execution proceedings nor was there any order in their favour which could be executed by this Court in the present proceedings. This argument completely ignores the order of the Supreme Court. The order of the Supreme Court is for the implementation of the agreement. The agreement was between Salahuddin Khan on the one hand and raj Muhammad Khanzada with the support of Directors on the other. In any way, the agreement, as reproduced in the judgment of the Surpeme Court, very clearly incorporates the stipulation that MajorGeneral (Retd.) Jeharzeh Khan and Sairab Hayes Khan would be the Directors of the Company and that they shall hold offices until 31st January, 1978. The submission of Mr. S. M. Zafar to the contrary thus holds no water. The agreement which has to be executed in letter and spirit by this Court as directed by the Supreme Court also contains that these two gentlemen would continue as Directors and therefore it is incumbent upon this Court to enforce this agreement which has been incorporated in the order of that Hon'ble Court. It is well settled that a decree- holder need not be party to the decree. It is enough if the decree confers some rights enforceable under the decree upon some persons mentioned in it.
32. ' Mr. S. M. Zafar next contended that the Supreme Court has itself held in its original judgment (PLD 1975 SC 244) that the High Cowl does not have the power to direct the Company to restore a Director to the office and thus the appellants cannot approach this Court for the restoration of their offices. In this respect, he referred to the following observations of their Lordships at page 262 of the judgment :- "It is also clear that, while acting under clause (2) (b) (fa the High Court would only grant a declaration as to the authority of the respondent to hold the office in question, but It could not grant a mandamus to restore or re=instate the applicant to that office in case it comes to the conclusion that the incumbent had no authority to hold the same. The High Court would in such a case only declare the office to be vacant, leaving the rightful claimant, if any to take whatever steps may be open to him to occupy the same."
33. ' Even if the point of view expressed by Mr. S. M. Zafar were to be accepted as a correct interpretation of these observations, there is no bar to the present proceedings. As has been seen, the Supreme Court has wound up the observations by saying :- ................................. Leaving the rightful claimant if any, to take whatever steps may be open to him to occupy the same."
34. ' One of the steps which the present appellants took in pursuance of these observations was to file an application for the contempt of Supreme Court by persistent refusal of respondents to act in accordance with the declaration granted by the Supreme Court in its judgment. When the matter came up before the Supreme Court, it directed the appellants to have recourse to execution proceedings before this Court. Article 1b7, Clause (2) of the Constitution lays down that :- "Any such direction, order or decree shall be enforceable throughout Pakistan and shall where it is to be executed in a Province or a territory or an area not forming of a Province but within the jurisdiction of the High Court of the Province be executed as if it had been issued by the High Court of the Province."
35. ' The High Court if, therefore, duty bound to execute the order of th Supreme Court and the words "direction order and decree" are in no manne inhibited or circumscribed by any consideration whatever. So long as it is an order or a decree given by the Supreme Court, Article 187 of the C Constitution makes the same executable and also makes it the duty of the High Court concerned to execute it.
36. ' Article 190 of the Constitution may also be quoted in this respect. It provides:- "All executive and judicial authorities throughout Pakistan shall act in aid of the Supreme Court."
37. ' Lastly, Mr. S. M. Zafar contended that the number of Directors could not be raised from 9 to 10, for in the Articles of Association of the Company, the number has been fixed at 9, and thus the appointment of Major-General (Retd.) Jehanzeb Khan as 10th Director was illegal. We do not see any force in this contention. In this respect, it would suffice to quote with advantage the following observations of their Lordships of the Supreme Court in the aforesaid case of Salahuddin Khan v.
38. Frontier Sugar Mills & Distillery Ltd. (page 259) : ' The composition of the Board of Directors of a Company incorporated as a public Company in whose operation the public at large has an interest, and whose constitution is required to be determined by the wishes of the shareholders, is a matter of the greatest interest to the public.
39. Therefore, it is conceivable as a public duty bearing upon the conduct of the members of a Board of Directors that they shall admit to their number every person who is qualified to be a Director of a Company."
40. ' Even otherwise, the contention of the learned counsel loses its importance in view of the agreement reached between the parties in the Supreme Court recognizing Major-General (Retd.)
41. Jehanzeb Khan as Director of the Company and on the basis of this agreement the Supreme Court accordingly passed the order dated 24th September, 1976.
42. ' In view of this position, therefore, tee finding of the learned Company Judge that the removal of Major-General (Retd.) Jehazeb Khan was lawful cannot be sustained, for this Court is required to execute and implement the order of the Supreme Court in its entirety.
43. ' Our conclusion, therefore, is that in view of the various observations of the Supreme Court quoted in this judgment and the provisions of Articles 187 and 190 of the Constitution, far from there being any bar to the execution of the order of the Supreme Court in the present case, there is a duty cast upon this Court to execute and implement the same in its entirety.
44. ' Having retched the conclusion that the order of the Supreme Court is executable and having held that the removal 'of Major-General (Retd.) Jebanzeb Khan as Director was unlawful, we now proceed to propose that order has to be pasted in this case.
45. ' We are in no doubt that the mere expression of a wish or a declaration is not what is required to be done in this case. The requirement of the order of the Supreme Court is that the agreement referred to in the order dated 24th November, 1976. Must be implemented in letter and spirit. We would, therefore, direct that the parties shall enforce the agreement dated 4-1-1976 which was confirmed by the Board of Directors of the Company on 7-1-1976 and for this purpose the Company shall proceed to recognise Salahuddin Khan as Chief Executive of the Company while Sairab Hayat Khan as Director/General Manager and Major-General (Retd.) lehanzeb Khan as Director. They shall be ' installed in their respective offices immediately. Salahuddin Khan shall continue to hold the office of Chief Executive of the Company as directed by the Supreme Court and he shall perform his duties and functions as such in accordance with law and the judgment of the Supreme Court. The salaries of Salahuddin Khan as Chief Executive of the Company from 1-5-1976 to 31-1- 1978 and also up to the date when he would relinquish the charge according to law shall be deposited in this Court at the rate at which it was fixed when he was elected as Chief Executive of the Company.
46. ' No hindrance shall be placed in the implementation of this order either by the respondents or any body else. The officials of the Company shall pay due respect to and obey the order of the Supreme Court as the recognition of Salahuddin Khan as Chief Executive of the Company. In so far as the tenure of the offices of the Director and Chief Executive is concerned, this Court can offer no opinion in this respect and considers itself bound by the determination of the Supreme Court that "the period for which the tenure of office has been interrupted shall not be counted".
47. This appeal, in the terms indicated above, is accepted with costs. accordingly.