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Civil Revision Application No. 162 of 1986, decided on 28th October, 1986.

‑‑‑S. 47‑‑Execution of decree‑‑Compromise between parties during execution proceedings resulting in partial satisfaction of original decree‑‑Right to obtain satisfaction of remaining decree made dependent on redemption of property from mortgage‑‑Requirements for execution of such unsatisfied decree‑‑Decree‑holder, held, would be required to prove date of such redemption so as to determine his right to apply for execution as well question of limitation‑‑Execution order could not be issued without first disposing of objection regarding non‑maintainablity of execution on ground of limitation.

Ch. Karam Rabbani and 11 others v. The Central Exchange Bank Ltd., Lahore P L D 1973 Lah. 679 and Government of West Pakistan v. Niaz Muhammad P L D 1978 S C 271 ref.

‑‑‑Ss. 47 s 115‑‑Revisional jurisdiction, exercise of‑‑Where orders of Courts below for execution of decree were made without first disposing of objection regarding non‑maintainability of execution on ground of limitation, High Court in revisional jurisdiction set aside such orders of execution, remanding case back to Execution Court with direction to first determine question of limitation and thereafter to dispose of execution application in accordance with law.

Masood Hussain Khan for Applicant.

A. Majeed Khan for Respondent.

Date of hearing: 2nd October, 1986.

This civil revision application is filed by the judgment debtor/ applicant against the order of IInd Additional District Judge, Karachi, dated 29th July, 1985 in Appeal No. 84 of 1984 which arose out of execution proceeding No. F.C.D. 1 of 1968, filed by the respondent/ decree‑holder to enforce a compromise arrived at between the parties on 7‑3‑1969 in Civil Miscellaneous Appeal No. 256 of 1968. The only contention raised by the learned counsel for the judgment‑debtor/ applicant is that the execution is barred by limitation, as the decree in the case was dated 8‑3‑1966 while the execution was filed in October, 1982. The learned counsel for the respondent/decree‑holder on the other hand supported the orders of Courts below and claimed that the execution application filed by the respondent/decree‑holder was within time as it was filed to enforce the compromise decree dated 7‑3‑1969 passed in Civil Miscellaneous Appeal No. 256 of 1968. In order to appreciate the contentions of the learned counsel for the parties it is necessary to state here the following facts;‑‑

The respondent who is member of the applicant (a Co‑operative Housing Society) was allotted a residential plot which was subsequently cancelled by the applicant. The matter was then agitated by the respondent before the Registrar Co‑operative Society and ultimately by an award of Registrar's nominee, dated 8‑3‑1966 the applicant was directed to provide an alternate plot of the same size to respondent in the Society. Armed with this award the respondent filed execution (F.C.D. 1 of 1968) before VIIth Civil Judge 1st Class, Karachi, who by his order dated 31‑8‑1968 dismissed the execution on the ground that the respondent had failed to point out the plot against which execution was sought. Aggrieved with the above order of Civil Judge the respondent filed Civil Miscellaneous Appeal No. 256 of 1968 which ended in a compromise between the parties which was recorded by the Court on 7‑3‑1969. It appears that the applicant subsequently challenged the legality of the compromise by filing Suit No. 669 of 1972 but the plaint in the suit was rejected on 30‑4‑1977. Thereafter, appeal against rejection of the plaint was also dismissed on 31‑5‑1981 and it is stated at the bar that Civil Revision No. 81 of 1982 filed by the applicant against rejection of plaint in Suit No.669 of 1972 is' now pending in this Court. Be that as it may, the respondent filed Execution No. 12 of 1982 on 19th October, 1982 to enforce some of the terms and conditions of the compromise recorded by the Court on 7‑3‑1969 during pendency of the Civil Miscellaneous Appeal No. 256 of 1968. It will be advantageous to reproduce here the compromise arrived at between the parties during the pendency of the appeal against the order of rejection of execution application on 7‑3‑1969. It is as follows:‑

"Application under Order XXIII, Rule 3, C.P.C. The parties in the above appeal have compromised on the following terms:‑

(1) That the respondent in its capacity as the lessee of the Plot No. 841‑14, measuring 120 sq. yds. (K.D.A. Scheme No. 16) with construction thereon has surrendered the said lease in favour of the Telephone Employees Cooperative Housing Society Ltd. who are the original allottee of the land from the K.D.A.

(2) That the encumbrance in the nature of the mortgage of the said plot and construction with the Government shall now be the responsibility of respondent (T . E. C . H . S. Ltd. Karachi).

(3) That the respondent hereby restores the original allotment No. T . E. C . H . S .98 dated 19‑3‑1960 in favour of the appellant in compliance of the award of the Registrar's nominee dated 24‑3‑1966. The original allotment has been restored as the said plot with construction thereon is now available on vacation by the Telephone Exchange.

(4) That the allotment has been restored by the respondent in favour of the appellant for a consideration of Rs.4,500 being the full occupancy value and the cost of construction standing over the said plot.

(5) That the respondent has received a cheque No. P.C.B.D. 948525 dated 6‑3‑1969 for a sum of Rs.2,500 from the appellant, and the possession of the said plot with construction thereon has been handed over by the respondent to the appellant.

(6) That the balance consideration of Rs.2,000 shall be paid by the appellant to the respondent at Rs.100 per month, payable by the 10th of each calendar month commencing from April, 1969.

(7) That the respondent as the original allottee of the land from the K . D . A . and also as the lessee of the plot with construction thereon which has been surrendered in favour of the respondent shall be exclusively responsible for the payment of the mortgaged amount to the Government, and also for any/all other encumbrances or dues of any nature including the dues if any payable by any person in occupation of the said plot for the said period prior to 6‑3‑1969.

(8) That the appellant shall be entitled to raise any additional construction over the plot.

(9) That the respondent covenants that the interest of the appellant shall be fully safe guarded and the final transfer and lease in favour of the appellant shall be effected on the release of the mortgage.

(10) That the respondent shall redeem the mortgage by June, 1972 and the amount payable to the Government shall be paid by other assets of the respondent.

The appeal be disposed of in terms of the above compromise."

It will be seen that the original decree in the case, namely the award of Registrar's nominee dated 8‑3‑1966, directed the applicant to provide an alternate plot of the same size to respondent. The affect of the above compromise between the parties was the partial satisfaction of the said decree as the applicant restored the allotment of respondent on payment of full occupancy value of Rs.4,500 out of which the respondent paid Rs.2,500 through cheque to applicant and respondent was also put in physical possession of the plot with construction thereon. The applicant had undertaken under para. 10 of the compromise to get the plot redeemed by June, 1972 by paying the amount due to Government out of its other assets. The learned counsel for the applicant no doubt is right in contending that no new decree came into existence as a result of the compromise in Civil Miscellaneous Appeal No. 256 of 1968 which could be independently executed, but as pointed out earlier the effect of compromise dated 7‑3‑1969 was the partial satisfaction of the decree dated 8‑3‑1966. Since the compromise provided that the satisfaction of the remaining decree could be obtained only upon release of the disputed plot from mortgage, the right to enforce the unsatisfied part A of the decree was made dependent on that contingency. It is quite clear from the other terms of the compromise that the right of respondent to obtain satisfaction of the remaining decree was made dependent on redemption of the property from mortgage by the applicant. In these circumstances, the question of limitation involved in the case could only be resolved with reference to the date when the right to apply for satisfaction of the remaining decree became available to respondent. Unfortunately neither the Courts below considered the case from this angle nor the decree‑holder pressed the execution application on this basis. The learned counsel for applicant relied on the case of Ch. Karam Rabbani and 11 others v. The Central Exchange Bank Ltd., Lahore P L D 1973 Lah. 679 to contend that the starting point of limitation for filing an execution application is the date of decree and not the date when the decree is drawn and signed by the Judge. The learned counsel for the respondent on the other hand relied on the case of Government of West Pakistan v. Niaz Muhammad P L D 1978 SC 271 in support of his submission that the period of limitation for applying for execution of a decree will start only from the date when the decree was actually drawn and signed by the Judge. It is not necessary to decide this controversy in the present case as it does not arise on the admitted facts and circumstances of the case. As pointed out earlier the compromise in Civil Miscellaneous Appeal No. 256 of 1968 did not bring into existence any new decree but only amounted to partial satisfaction of the original decree while right to obtain satisfaction of remaining decree was made dependent on happening of certain events namely redemption of the property from mortgage. In these circumstances, it was neither necessary nor permissible to draw any decree on the basis of the compromise. As the right to apply for execution of the remaining decree was dependent on the redemption of B mortgage by the applicant, the respondent/decree‑holder should have first established the date of redemption of the property by the applicant so as to determine his right to apply for execution of remaining decree as well as the question of limitation applicable to the case. As this was not done, the trial Court could not issue the execution without first disposing of the objection of applicant regarding non‑maintainability of execution on the ground of limitation. I accordingly accept the revision application, set aside the orders of the Courts below and remand the case back to the executing Court with direction to first determine the question of limitation in the light of the above observation and thereafter dispose of the execution application of the respondent in accordance with the law. There will be no order as to costs.

A . A Revision accepted

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