BASHIRAN Versus MUHAMMAD SHARIF
This judgment will dispose of C.M. 3600‑C/74 and C.M. 65‑C/78 which have arisen out of FAO 56 of 1974 decided on 3‑10‑1974 (by this Court).
2. In a suit for declaration of title filed by Mst. Bashiran, respondent in C.M. 3600‑C/74, a compromise was reached between the parties on 4‑7‑1973. A statement was recorded in which the parties agreed that if Sultan and Sardar the present petitioners defendants Nos.6 and 7, deposit Rs.5,000 in the Court for Mst. Bashiran on or before 4‑11‑1973 the suit of Mst. Bashiran may be dismissed as withdrawn otherwise the suit of Mst. Bashiran shall stand decreed. This amount of Rs.5,000 was never deposited. The said Sultan and Sardar filed an appeal against the said consent decree which was accepted by the learned District Judge vide order dated 4‑3‑1974 holding that no proper compromise had been reached and, therefore, the case was remanded for further proceedings. No stay order in regard to the deposit of the amount of Rs.5,000 was prayed for either through any application or orally and no stay order was issued even suo motu by ‑the said appellate Court. Against the said remand order dated 4‑3‑1974 Mst. Bashiran filed an appeal before this Court which was accepted vide order date 3‑10‑1974. The remand order of the learned District Judge was set aside and the judgment and decree of the learned trial Court were restored. Even during the proceedings before this Court no stay order was prayed for and none was granted. On 6‑11‑1974 the petitioners Sultan and Sardar filed C.M. 3600‑C/74 for extension of time for deposit of the said amount of Rs.5,000. On 12‑11‑1974 an interim order was made by this Court on the said petition allowing the said petitioners to deposit the amount of Rs.5,000 within 10 days "subject to objection, if any, of the other party". Mst. Bashiran was to appear in the said petition as a respondent. However, she filed C.M. 65‑C/78 also for recalling of the said order dated 12‑11‑1974. C . M . 3600‑C / 74 is opposed and contested hotly by Mst. Bashiran.
3. As narrated above the suit was disposed of through a compromise and on a statement made by the parties. The said compromise was tried to be avoided by the said Sultan and Sardar through an appeal in which an order in their favour was passed by the learned District Judge on 4‑3‑1974. However, the said remand order was set aside by this Court vide judgment dated 3‑10‑1974 and the original judgment and decree of the learned trial Court were restored. This means that the compromise remained intact. The compromise was to the effect that if a sum of Rs.5,000 was deposited for Mst. Bashiran by Sultan and Sardar up to 4‑11‑1973 the suit of Mst. Bashiran shall stand dismissed .as withdrawn and if the amount was not deposited by that date the suit shall stand decreed. This amount was not deposited in accordance with the said compromise and the suit of Mst. Bashiran automatically stood decreed under the said compromise which was confirmed by this Court vide order dated 3‑10‑1974. When the date is fixed through such a compromise a Court has no power to deviate from the same because it is an essential condition of the compromise itself which can be varied, if at all by the parties themselves by mutual agreement and cannot be varied by a Court itself.
4. The position would have been somewhat different if the operation of the judgment and decree passed by the learned trial Court had been stayed either by the learned District Judge in the proceedings of the appeal or by this Court in the proceedings of FAO 56/74. As mentioned above no such stay order was applied or prayed for by the said Sultan and Sardar and no such stay order was issued by the first appellate Court or by this Court. Therefore, the said Sultan and Sardar had to deposit the said amount up to 4‑11‑1973 and the question of extension of time could not arise. Similarly, if the first appellate Court or this Court had stayed the operation of the decree of the learned trial Court we could grant further time for deposit of the amount and not otherwise because that will not be an extension of time but would be a time granted to run again after the same had been stayed earlier by an order of a Court. After the passing of the decree by the learned trial Court and after the disposal of FAO 56/74 by this Court vide order dated 3‑10‑1974, both of the said Courts became functus officio and could not grant any extension of) time.
5. Therefore, no extension of time could be or can be granted to Sultan and Sardar for deposit of the said amount of Rs.5,000. C.M. 3600‑C/74 is dismissed and C.M. 65‑C/78 stands disposed of as a consequence. The amount of Rs.5000 deposited by Sultan and Sardar under the said order dated 3‑10‑1974 can be withdrawn by them. No order as to costs.
M.Y.H./B‑59/L Order accordingly.