ALI MUHAMMAD BROHI Versus MUHAMMAD HASHIM

1. JUDGMENT NAIMUDDIN, J.--This appeal under section 15 of the Code of Civil Procedure (Amendment) Ordinance, 1980 is directed against the Order dated 1-11-1981, passed by a learned Single Judge of this Court on an application under section 148, C: P. C. read with section 151, C. P. C. dismissing the same on the ground that the same was not maintainable.

2. The relevant facts giving rise to this appeal briefly stated, are as follows:

3. On 23-12-1976, the appellant/plaintiff filed a suit, being Suit No. 10 of 1977, against the respondent/defendant for possession of agricultural lands bearing Survey Nos. 21, 22, 25 to 31 and 34 to 38 situated in Deb Phihai, Tapo Landhi, Taluka Karachi East, admeasuring 90 acres and 7 Ghuntas, and for mesne profits.

4. On 23-4-1980, an application under Order XXIII, rule.3, C. P. C. was filed in Court and on the same day the suit was decreed in terms thereof.

5. We may hereinbelow reproduce the terms of the compromise as they have some bearing on the arguments advanced before us

6. "(1) Defendant acknowledges that the plaintiff is the owner and landlord of the land in suit.

(2) Defendant agrees to restore and place the plaintiff in Khas vacant possession of the land in suit in the manner following :

(3) That the plaintiff agrees to pay to the defendant by way of compensation Rs. 17 lacs (Seventeen lacs) only within one year of the date thereof.

(4) The-plaintiff shall pay to the defendant the agreed compensation. Upon payment the defendant shall forthwith place and restore possession of the land in suit to the plaintiffs as mentioned above.

(5) Meanwhile the plaintiff may get the land surveyed and planned for development, demarcation etc.

(6) The defendant shall withdraw and procure the plaintiffs in Suit 1020 of 1970 to withdraw the suit.

(7) Except as provided in decree herein all other proceedings in respect of the land in suit shall stand withdrawn."

7. Thereafter, on 17-3-1981, the appellant filed an application under section 148, C.P.C. for extension of time for payment of Rs. 17 lacs by one year.

8. The respondent filed objection in the form of counter affidavit wherein he took the stand that the application was not maintainable as the Court could not extend the time fixed by a consent decree and because the matter finally stood disposed of.

9. It appears that subsequently the parties had entered into an agreement whereby the respondent allowed the appellant six months more time for payment of the amount of Rs. 17 lacs (seventeen lacs) a photostat copy whereof was produced before the learned Single Judge.

10. However, the learned Single Judge dismissed the application by the order dated 1-11-1981, holding that the same was not maintainable and time extended by the alleged compromise could be agitated in execution proceedings.

11. It may be convenient for future reference, if we reproduce hereinbelow the order which is a short one in extenso. The order reads as follows:

12. "1-11-1981. Mr. J. H. Rahimtoola, Advocate.

13. Mr. G. H. Abbasi, Advocate.

14. Mr. J. H. Rahimtoola has produced a photostat copy of the agreement stated to have been executed by the Decree-Holders extending the time for payment of the decretal amount.

15. Mr. G. H. Abbasi the learned counsel for the defendants states that he has no instructions from his clients about this compromise alleged to have been entered into between the parties. However, this is a matter which could be agitated in execution proceedings, if any.

16. With the above observation and subject to the right of the plaintiff's to raise such objection in the execution proceedings (if any), this application is rejected as not maintainable in this suit."

17. The appellant has, therefore, come up in this Intra-Court Appeal.

18. We have heard Mr. J. H. Rahimtoola Advocate for the appellant and Mr. G. H. Abbasi, Advocate for the respondent.

19. The learned counsel for the appellant submitted that time fixed by a consent decree could be extended and he relied on Kandappa Nag v. Banwari Lal Nag and others (A I R 1921 Cal. 356), Mt. Nand Rani Kuer v. Durga Dass Narain (A I R 1924 Pat. 387), Gokul Prasad v. Fattelal (A I R 1946 Nag. 29), Bupendra Nath Lahiri v. P. K. Biswas (A I R 1960 Cal. 75), Asraf Ali alias Asrafuddin Mondal and another v. Bayia hasda and others (P L D 1967. Dacca 557), Habib and 8 others v. Haji Muhammad_and 3 others (P L D 1970 Kar. 495).

20. On the other hand the learned counsel for the respondent submitted that not only the application was not maintainable but the appeal was also not maintainable as the same was not against the interlocutory order. He relied on a decision of the Supreme Court in Shah Wali v. Ghulam Din alias Gaman and another (P L D 1966 S C 983) and also in two decisions of the English Courts in Hunt v. Allied Bakeries Ltd. ((1956) 3 A E R 513) and Rossage v. Rossage and others ((1960) 1 A E R 600).

21. Under section 15 of the Code of Civil Procedure (Amendment) Ordinance 1980 read with section 3 of the Law Reforms Ordinance an appeal would lie against an interlocutory order.

22. Section 1.5 of the first mentioned Ordinance reads as follows :

23. "15. Appeal to High Court in certain cases.-Notwithstanding anything contained in section 3 of the Law Reforms Ordinance, 1972.(XII of 1972), an appeal shall lie to a Bench of two or more Judges of a High Court from an interlocutory order made by a Single Judge of that Court in the exercise of its original civil jurisdiction."

24. Therefore, the important question for consideration is whether the application for a tension of time filed by the appellant was an interlocutory application and the order passed thereon an interlocutory order.

25. In order to find answer to the question we have to consider the meaning of the word or the term `interlocutory'. This word or term is not defined either in the Code of Civil Procedure or in the Law Reforms Ordinance, 1972 or the Code of Civil Procedure (Amendment) Ordinance, 1980.

26. We shall, therefore, first consider its dictionary meaning and then how it has been explained in judicial pronouncements.

27. According to Concise Oxford Dictionary the word "interlocutory" means "given in the course of legal action."

28. According to Oxford English Dictionary it means,

29. "1. Of the nature of, pertaining to, or occurring in, dialogue o conversation.

(b) Of a person : Taking part in a conversation.

2. Spoken intermediately, interjected into the main course of speech.

3. Pronounced during the course of an action ; not finally decisive of a case or suit ; esp. in interlocutory decree, judgment, order. Also relating to a provisional decision in a case."

30. The term `interlocutory' has also been discussed by Jowitt and Waish in their Dictonary called Jowitt's Dictionary of English Law, Second Edition, at page 999 as follows :

31. "Interlocutory.-A proceeding in an action is said to be interlocutory when it is incidental to the principal object of the action, namely, the judgment. Thus, interlocutory applications in an action include all steps taken for the purpose of assisting either party in the prosecution of his case, whether before or after final judgment ; or of protecting or otherwise dealing with the subject-matter of the action before the rights of the parties are finally determined ; or of executing the judgment when obtained. Such are applications for time to take a step e. g. to deliver a pleading) for discovery, for an interim injunction, for the appointment of a receiver, for obtaining a garnishee order, etc. So an order giving -.t plaintiff leave to sign judgment is interlocutory because he must sign judgment before be can issue execution. The question whether an order is interlocutory is of importance with reference to the time during which it may be appealed against, fourteen days being allowed for appeals from interlocutory orders, and (unless the time is enlarged when an order is made or unless the Court of Appeal enlarges the time subsequently six weeks for most, other appeals (R. S. C., Ord. 59, r. 4).

1. According to "Wharton's Law Lexicon", (XIV Edn.) (1976 Reprint)

32. "An interlocutory order or judgment is one made or given during the progress of an action, but which does not finally dispose of the right of the parties e. g., an order appointing a receiver or granting an injunction, and a motion for such an order is termed as interlocutory motion."

33. II. In "Words and Phrases Legally Defined", Vol. 3, Second Edition, p. 82, it is stated that

34. "Those applications only are considered interlocutory which do not decide the rights of parties, but are made for the purpose of keeping things in status quo till the rights can be decided, or for the purpose of obtaining some direction of the Court as to how the cause is to be conducted, as to what is to be done in the progress of the cause for the purpose of enabling the Court ultimately to decide upon tie rights of the parties."

111. In the "Handbook of Legal Terms and Phrases" by Muhammad Ilyas Khan, p. 236, the term is explained as :

35. "A judgment or order made during the pendency of the suit on a specific issue without finally deciding the suit.

36. It was settled by decisions of different High Courts that the word 'judgment' used in `Letters Patent' means a decision which affects the merits of the question between the parties determining some rights or liability. It may be either final or preliminary or interlocutory, the difference between them being that a final judgment determines the whole cause or suit and a preliminary and interlocutory judgment determines only a part of it leaving other matters to be determined." (?).

37. From the above stated meaning or explanation of the term it is clear that the term applies to an application made during the pendency of an action or to an order or decree passed in an action which does not finally dispose of the rights of the parties or which is made for the progress of the action for example, an order appointing a receiver, granting temporary injunction, attachment before judgment of the property of the defendant, giving or refusing leave to an assignee or successor to continue with the suit on assignment or devolution of interest, or granting or refusing leave to defend the suit.

38. In the present case a decree was passed in terms of compromise contained in the application filed on 23-11-1980 the terms whereof we have been reproduced hereinbefore.

39. A decree could- be preliminary or final. According to the explanation to the definition of the decree given in section `2', subsection (2) of the Code of Civil Procedure 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 suit. It may be partly preliminary and partly final.

40. If we examine the terms of the compromise in the light of the meaning of the term we find that nothing was left to be done by the Court subsequent to the passing of the decree in the suit and the Court had decided the right of the parties fully and finally in terms of the compromise and, therefore. the order or the judgment and decree passed in the suit was final and the Court was no more seized of the suit. In this view of the matter the application for extension of time could not be termed as an interlocutory application and the order passed thereon an interlocutory order. Consequently, the High Court Appeal not being from an interlocutory order, is not maintainable.

41. Now, I am also refer to 3 cases cited by Mr. Abbasi.

(1) In Shah Wali v. Ghulam Din alias Gaman and another the facts were that a person filed a suit for pre-emption. The suit was decreed and he was directed to deposit pre-emption money by 21-3-1961 and the Court further ordered that "otherwise his decree will be cancelled." On appeal by the vendee/defendant the amount of pre-emption was enhanced and the District Judge directed the pre-emptor to deposit the enhanced pre-emption amount by 30-3-1962 and ordered that "otherwise his suit will be treated as dismissed with costs." The pre-emptor on 18-4-1962 deposited the preemption amount which by a bona fide mistake fell short of Rs. 123.75. At the same time, however, he had filed a second appeal to the High Court and this appeal was dismissed in limine on 9-10-1962. On 17-10-1962 the preemptor sought extension of time to deposit the deficit amount of Rs. 123.75 on the ground that the short fall in payment was due to bona fide mistake. The trial Court refused to grant extension holding that it had no jurisdiction to extend time for deposit of pre-emption money under the decree or the appellate Court. Against ibis order of refusal to extend time the pre-emptor went in appeal and the District Judge disagreed with the finding of the trial Court and extended the time for depositing the pre-emption amount. The vendee, thereupon, went in revision before the High Court and the High Court relying on an earlier decision in the case of Shah Muhammad Khan v. Allah Diwaya (P L D 1961 Lah. 743) dismissed the petition and held that the appellate Court had jurisdiction to extend time. The vendee thereafter came up in appeal to the Supreme Court after obtaining special leave. The question before the Supreme Court, under the circumstances, was:

42. "Whether extension of time could be granted to a successful preemptor on appeal against an order of refusal to extend the time for depositing pre-eruption money when the original decree was not under appeal."

43. On these facts it was held that the pre-emptor's suit stood dismissed for his default in making payment of the correct amount within the time fixed by the appellate decree and there was no question of extension of. the time involved, either by the original Court or by the appellate Court thereafter, the appeal or revision from the appellate decree having already been dismissed.

(2) In Rossage v. Rossage and others the facts were that the mother of a child applied to strike out certain affidavits, filed on the child's father's application to suspend her access to the child, on the ground that the affidavits were scandalous and irrelevant. Three of the affidavits contained much hearsay evidence as well as some relevant material. The trial Judge ruled that the hearsay was irrelevant and inadmissible but refused the application to strike out on the ground that he was quite capable of Shutting his mind to the irrelevant matter. On appeal by the wife the husband contended, inter alia, that as the proceeding was interlocutory an affidavit might contain, by virtue of the proviso to R. S. C. Ord. 38, r. 3; "Statement of information or belief with sources and grounds thereof".

44. On these facts it was held that as the application to suspend access, although interlocutory in form, an application to decide the rights of the parties it was not an "interlocutory proceeding" within the meaning of the proviso.

45. In this case reliance was placed on Gilbert v. Endean ((1878) 9 Ch. D 259).

46. These cases fully support the view which we have taken.

47. So far as Hunt v. Allied Bakeries Ltd. is concerned it is distinguishable on facts.

48. We may also refer to Shaikh Ayezuddin v. Priya Shankar Choudhury (6 D L R 595) wherein it has been held by Dacca High Court as follows:

49. "Where a party is required to do something under a decree or order and a time limit is prescribed for doing it, the Court which passed the decree or order has no jurisdiction to extend the time. This is undoubtedly the general rule, but it is subject to the qualification that the decree or order which fixes the time is not intended to be final and the Court still retains control over the proceedings, the Court may extend the time under section 148, Civil Procedure Code, A distinction is to be drawn between a case when the proceeding has terminated and one in which it has not terminated and the Court still retains control over it. Whether the Court still retains control over the proceeding or not must be determined upon the nature of the proceeding and the order passed therein. If that order is a final order the Court is functus officio and it cannot enlarge time."

50. Now, we take up the cases cited by Mr. J. H. Rehmatullah. In Kand arpa Nag v. Ban wari Lai Nag and others. It was held by a Division Bench of Calcutta High Court that two principles are well-settled with regard to the nature and operation of consent decrees. In the first place, there is high authority for the proposition that a consent decree is just as binding on the parties thereto as a decree after a contentious trial. It was further held that a consent decree cannot have greater validity than a compromise itself. In this case the question was `whether the Court after passing of the decree could grant relief against forfeiture which was provided in the compromise decree. But the point involved before me is not one of grant of jurisdiction to relief against forfeiture which was the point involved in that case but whether the Court has jurisdiction after the passing of a decree with consent or otherwise whereby the rights of the parties have been fully and finally decided by it to entertain an application for extension of time. Therefore, this case is distinguishable.

51. In Mi. Nand Rani Kuer v. Durga Dass Naraln it was held that where under a compromise decree time is fixed for payment of the decretal amount, the Court can extend the time for payment, if in its discretion it thinks that time is not of the essence of the contract, and such an order extending the time is not subject to revision. In this case the subordinate Judge in a part of his judgment had expressed the view that section 148, C. P. C. was applicable to the case but the learned Judges were of the view that the jurisdiction to extend the time could be based on the general rules of equity.

52. But with due respect I am not inclined to follow this case for it is settled so far Courts of this country are concerned that Court cannot extend time under section 148, C. P. C. where the period is fixed or granted by the decree or final order.

53. In Gokul Prasad v. Fattelal it was held by a Single Judge of Nagpur High Court that a decree in a suit for specific performance of a contract for sale fixing time for payment of purchase money is in the nature of a preliminary decree and, therefore, the Court has power to extend the time fixed by the decree.

54. Reliance was placed on the decision by a Single Judge of Madras High Court in Metta Rama Bhatlu v. Metta Annayya Bhatlu (A I R 1926 Mad. 144) wherein reliance was placed on section 35 of the Specific Relief Act.

55. In the cited case the decree was in the following terms :

56. "It is ordered and decreed that on plaintiff's depositing Rs. 6,664 in Court for payment to defendant on or before 21st September, 1942, the defendant shall execute a sale-deed in respect of his 0-8-0 share of Mouza Palode with all rights appertaining thereto including the Khudkasht lands (consisting of Patti No. 1) together with occupancy and absolute occupancy (fields) and that the sum of Rs. 1,022 only be paid by the defendant to the plaintiff on account of costs of this suit . . . . . . . . . if the defendant fails to execute the sale-deed the plaintiff will get the same executed through Court according to law. If the plaintiff fails to deposit the amount in Court in time, his suit shall stand dismissed with costs."

57. The decree was passed on 31st August, 1942. The period of 21 days allowed in the decree was to expire on the 21st September, 1942. On that day Gokul Prasad the decree-holder applied for extension of time by a month saying that the balance of the purchase money should have been reduced by Rs. 1,022 which Fattelal had been ordered to pay on account of costs. While that application was under consideration Gokul Prasad deposited the entire amount on 31st October, 1942 in the Court for payment to Fattelal as per terms of the decree. On that very day Gokul Prasad filed the appeal in that Court for reduction of his decree by Rs. 1,022 and for the grant of reasonable extension of time for payment of the decretal amount. The application for extension of time made in the lower Court succeeded and the lower Court by an order made on 20th January, 1943 extended the time by 1 month and 10 days and treated the deposit made by Gokul Prasad, on 31st October, 1942 as having been made within time and called on Fattelal to execute a conveyance, and that was done. Fattelal's Revision Petition (Civil Revision No. 129 of 1943) was directed against the lower Court's order dated 20th January, 1943 extending the period fixed in the decree.

58. It will be seen from the above stated facts that this case too is distinguishable on facts. In the case under consideration the suit filed on original side of this Court was not for specific performance of the contract but was for possession, which was compromised.

59. In A I R 1960 Cal. 75, the facts as would appear from the head note were that during the pendency of second appeal filed by the defendant against an ejectment decree passed against him, the defendant applied to the High Court for stay of execution of that decree and ultimately obtained a rule absolute by consent of parties on certain terms. It was also provided that "on breach of any of the. conditions of this Rule it will stand discharged with costs." The defendant had made the initial deposits within time in pursuance of the terms of that order but subsequently the monthly deposits of rent were not made owing solely to the default of his lawyer. The defendant, therefore, applied again to the High Court for stay of execution.

60. On these facts it was held that though there was an automatic discharge of the Rule by breach of the conditions, the Court had power to grant relief to the defendant in the circumstances of the case because, firstly, the relevant order was not an express, condition mentioned in decree, but an order made in connection with an appeal which was still pending. Secondly, even though, the order in question was passed upon consent of the parties and on the occasion the plaintiff/respondent was withholding consent to passing any further order in favour of the defendant/petitioner, that circumstance alone was not an insuperable bar to a favourable order being passed now in favour of the petitioner. In matters of this kind equitable considerations cannot be entirely overlooked. Thirdly, the application filed by the defendant petitioner could well be treated as a fresh application, and there was no statutory bar to the entertainment of such Application and granting adequate relief thereunder:

61. This case, therefore, has no relevancy to the point under consideration in the present appeal.

62. In Asraf Ali alias Asrafuddin Mondal and another v. Bayia Hasda and others it was held by Sikandar Ali, J. at pages. 562 and 564. of the report as follows :

63. It is thus clear that the decree in an action for specific performance of contract, no matter whatever may be the form in which it may be drawn up; is, in the eye of law, a preliminary decree, and as such, even where a default clause is attached thereto, is not dead but pending, though in a comatose condition. Necessarily the Court retains control over the action and has, therefore; jurisdiction to enlarge time regardless of the said default clause.

64. In view of the law, as embodied under section 148 of the Code and section 35 of the Specific Relief Act, as well as the authorities discussed above, I am inclined to accept the contention of Mr. K. Hossain that in the case of a decree for specific performance of contract the Court retains the jurisdiction to extend time under section 148 of the Code of Civil Procedure, even though the decree contains a default clause providing that in default of the plaintiff to make the requisite payment within the period fixed by the Court the suit shall stand dismissed. In other words, the present case does not in my view, come within the mischief of the decision in the case of Shaikh Ayezuddin v. Priya Sankar Chuwdhury."

65. It will be seen from the above observations that this case also is distinguishable.

66. In P L D 1970 Kar. 495; it was observed that it was an established principle of law that a consent decree is just an agreement between the parties notwithstanding the fact that it has been recorded by and bears the seal of the Court. Therefore, the consent preliminary decree passed in a case, like all other agreements, could be amended by the. consent of the parties without any objection.

67. This case also is of no help to Mr. Rahmatullah, Advocate for on the facts of the present case, 1 have held that the suit had been disposed of finally and thus there was no preliminary decree and there was no consent too.

68. I have already stated, while not following A I R 1924 Pat. 387 that it is well-settled that the Court cannot extend the time under section 148, C. P. C. where the period is fixed or granted by the decree or final order.

69. Here I may refer to Haji Nawab Khan v. Fazalur Rahman and another (1976 S C M R 502), Ilam Din etc. v. Abdul Hamid etc. (1980 C L C 807), Khan Shah Muhummad Khan v. Allah Diwaya and others, Jalil Ahmad and 3 others v. Muhammad Ishaq and 2 others (P L D 1972 Kar. 341). In the last named case it was observed by Khuda Bakhsh Marri, J. at p. 347 of the report as follows :

70. "A bare reading of this section goes to show that the underlying principle as regards the applicability of section 148, C. P. C. to a case depends on the question where the matter has been finally disposed of by the Court or the Court is still seized of the matter and has control over it if the order is not final, obviously the Court is seized of the matter. In that case it has power to make any just or necessary order, in proper cases, to extend time under the above section. On the other hand it is to be seen that if the effect of the order is that the Court has finally disposed of the matter, and there is nothing for it to intervene further, only in that case the Court ceases to have any control over the matter and become functus officio, therefore, only in that case it cannot grant extension of the period which has already passed."

71. Reference may also be made to Himmun v. Fauja (A I R 1921 Lah. 6). In this case it was held by the Full Bench that a decree can be altered by review, on appeal or on revision, but neither section 148 nor section 151 can be utilized for the purpose of altering a decree.

72. It was additionally submitted by Mr. Abbasi that by subsequent agreement the respondent had agreed to extend time by 6 months up to 10-12-198.1, which time was allowed to expire without paying the amount of compensation to the respondent. Mr. Abbasi, further submitted that even the time applied for expired on 23-4-1982 without complying with the terms of the decree a to payment of compensation. He, therefore, argued that whatever view of the matter is taken the appeal has become infructuous. Indeed, he submitted that the appellant has challenged the compromise decree by an application under section 12(2), C. P. C. on the ground of fraud etc., which was dismissed by the learned Single Judge by the order dated 18-4-1982, against which an Intra-Court Appeal, being High Court Appeal No. 47/1982 has been filed. In these circumstances, he argued that the question of extension of time did not arise.

73. We agree with Mr. Abbasi on both the points.

74. For the reasons given above, we dismiss this appeal with costs.

75. M. z. M. Appeal dismissed.