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Civil Petition for Special Leave to Appeal No. 952 of 1974, decided on 30th July, 1975.

(On appeal from the judgment and order of the Lahore High Court made on the 15th August, 1974 in E. S. A. No. 341 of 1964).

-- S. 4-Decree--Error rectified Later-Limitation-Compromise decree for entire area in dispute passed -Decree-sheet had to con form to such decree and not to original entries in plaint-Agreed period of one year, held, could not start running until such time as an executable decree existed in field and such a decree came into existence only when error corrected by trial Court.-[Decree--Limi tation].

Parvaiz Akhtar, Advocate and Sh. .Abdul Karim, Advocate-on-Record for Petitioners.

Pir Altaf Hussain Shah, Advocate and S. Wajid Hussain, Advocate on-Record for Respondent No. I.

Nemo for the Remaining Respondents.

Date of hearing : 30th July, 1975 .

-In two pre-emption suits concerning the same sale transaction a compromise decree was passed on the 19th of February, 1962 under which the respondents were allowed one year's time to take possession of the pre-empted land by executing the decree on payment of Rs. 6,407. It was further stipulated that if they failed to execute the decree with the specified time, the same would stand cancelled and the suit of the rival pre-emptors. i. e. the petitioners before us, would stand decreed.

The respondents applied on 3rd November, 1962 for the correction of the decree as they discovered that the area of the disputed land had been shown in the decree-sheet as 50 kanals 6 marlas only instead of 60 kanals 6 marlas. This application was rejected by the trial Court on 16th January, 1963, but a second application was allowed on 26th March, 1963. Two days thereafter, the respondents moved for the execution of the decree.

The present petitioners moved an application before the executing Court praying that they be allowed to deposit the pre-emption money as the respondents Mst. Mumtaz Begum etc. had failed to get the decree executed within one year as stipulated under the compromise. This appli cation was, however dismissed by the trial Court on 13th November, 1963 on the ground that the parties could not, by a mutual arrangement, reduce the statutory period of three years provided for the execution of the decree. The Court also noticed the fact that the respondents had been making efforts to get the decree rectified before taking out execution.

This order of the trial Court was, however, reversed in appeal by the learned District Judge; Jhelum, by his order dated the 1st of April, 1964. He took the view that the respondents had slept over the matter for eleven - months. and that in any case he had no power to extend the time fixed by the decree since section 148, C. P. C. did not apply in the matter. He held that' the decree in favour of the respondents had become inoperative

Aggrieved by this appellate order the respondents filed a second appeal which has been accepted by a learned Single Judge of the High Court by his judgment dated 15th of August, 1974. He has observed that the decree being incorrect and not according to the compromise arrived at between the parties, it remained inexecutable until its rectifica tion by the trial Court on the 26th of March, 1963 and, therefore, the period of one year stipulated in the compromise decree should start from the date when an executable decree was passed. On this view of the matter he has set aside the order of the learned District Judge and restored that of the trial Court.

Leave to appeal is sought on the ground that the error in the decree sheet had crept in owing to the fact that in the respondents' plaint itself the, area of, the land in dispute was not correctly described, and, therefore, the respondents were not entitled to deduct the time taken by them for getting the decree rectified. It is next submitted that the learned District Judge had rightly observed that the respondents had delayed in moving the trial Court for the rectification of the decree, and that they were under a duty to take possession of the disputed land within the agreed period of one year.

The contentions raised on behalf of the petitioners are misconceived. Whatever the defect in the plaint filed by the respondents, remains that a compromise decree for the entire area in dispute had passed on the 19th of February, 1962 and the decree-sheet had to form to this decree, and not to the original entries in the respondent's plaint. It seems to us that the High Court has rightly observed that the agreed period of one year could not start running until such time as there was an executable decree in the field, and such a decree came into existence only on the 26th of March, 1963 when the error was corrected by the trial Court. We consider, therefore, that the High Court was right in holding that the decree in favour of the respondents was still operative in terms of the compromise and could be executed.

The petition accordingly fails and is hereby dismissed.

Petition dismissed.

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