ALLAUDDIN Versus MUHAMMAD SHAKIR

1. This is an execution, application filed by the decree‑holder for execution of decree in Suit No.50 of 1971 praying that the conveyance deed of plot No.l Row No.l sub‑Block H , Block III, Nazimabad, Karachi be executed and got registered by the Nazir of this Court in favour of the Decree‑holder on his paying Rs.40,000. It was filed on 3‑8‑1978. On 8‑9‑1979 the Judgment‑Debtor filed objections to the execution application. The Judgment‑debtor was asked to furnish security of Rs.5,000 under Order 21, Rule 23, C.P.C. which he has furnished. By order dated 16‑12‑1980 the Court had directed that affidavits should be filed in. proof of objections. Affidavits and documents were filed. Thereafter, the case lingered on upto 14‑1‑1987 when it was ordered that the evidence of the parties be recorded on commission. The Commission was executed and now the case is fixed for arguments. Mr. G . H . Malik is present for decree‑holder while Mr. Muhammad Ahmad has appeared for judgment‑debtor.

2. The main objection raised on behalf of the judgment‑debtor is that time was the essence of the contract and the decree‑holder not having got the sale‑deed scribed on requisite stamp paper and not A having asked the Judgment‑Debtor to appear before the Registrar and receive the payment of Rs.40,000 within 15 days has committed breach of the agreement and is therefore no more entitled to ask for the specific performance of the agreement.

3. The evidence led by the decree‑holder shows that he had issued a registered A/D notice to the Judgment‑Debtor Syed Muhammad Shakir on 27‑6‑1978 on his address but the same had been returned undelivered with the endorsement refused . Thereafter the decree holder filed execution application on 3‑8‑1978 and deposited an amount B of Rs.40,000 on 1-2‑1979 in the Court. As against this the Judgment Debtor led evidence and produced copy of notice dated 2‑8‑1978 wherein he had informed the Decree‑holder that by his having failed to pay the amount of Rs.40,000 within 15 days the compromise agreement had been violated. He has also referred to a telegram which was given by him. wherein he had asked the defendant to pay the amount.,

2. The application under Order 23, Rule 3, C.P.C. may be reproduced as under:‑

3. Application under Order 23, Rule 3 C.P.C.

4. The parties abovenamed beg to state that they have settled the matter on the following terms and conditions.

(1) That the plaintiff shall pay further total sum of Rs.40,000 (Rupees forty thousand only) to the defendant in full and final settlement of the oonsideration of the suit property viz. plot No.l, Row No.10, Sub‑Block H, Block III, Nazimabad, Karachi, which is in possession of the plaintiff.

(2) That the defendant shall not claim any other amount whatsoever from the plaintiff in respect of the conveyance of the said property.

(3) That the defendant shall execute and register the sale‑deed to convey the said property to the plaintiff on his paying the said sum of Rs.40,000 (Rupees forty thousand only) before the Registrar within fifteen days from this date.

(4) That the sale‑deed of the said property shall be for a consideration of Rs.93,500 (Rupees ninety three thousand and five hundred only) the expenses of which shall be borne by the plaintiff as agreed.

5. It is, therefore, prayed that this Hon ble Court may be pleased to decree the suit for specific performance‑in terms of this compromise.

6. Sd/‑Alauddin

7. Sd/‑ Iqbal Ahmad.

8. Karachi

9. Dated 15‑5‑1978

10. Advocate for the plaintiff.

11. Sd/‑SM. Shakir, Defendant.

12. Sd/‑ Syed Mumtazuddin Advocate for the defendant.

13. It will also be useful to reproduce the order passed by the Court on this application, which is as follows:‑

14. 15-5-1978

ORDER

15. Mr. Iqbal Ahmad. Advocate with the plaintiff.

16. Mr. S. Mumtazuddin, Advocate with the defendant.

17. Learned advocates for the, parties have presented application under Order 23, Rule 3, C.P.C. in Court today containing the terms on which the parties have settled the dispute. Learned counsel for the parties and the parties present in Court admit execution of the application. I find that the suit has been valued at Rs.55 000 but now in view of the compromise the value of the suit will be Rs.93,500. Before I accept the compromise, I direct the office to calculate the balance amount of court‑fee payable on the enhanced amount as the plaintiff is prepared to deposit the balance in Court today.

18. Sd/‑Naimuddin, Judge

19. 15‑5‑1978

20. Order

21. Mr. Iqbal Ahmad, Advocate.

22. Mr. S. Mumtazuddin, Advocate.

23. This order is to be read in conjunction with the earlier order of date. Since the amount of court‑fee has been paid by the plaintiff I accept the compromise and decree the suit in terms thereof. Court‑fee be purchased.

4. The first para. of the compromise application which speaks about the payment of Rs.40,000 does not mention that the payment was to be made within 15 days. The third para, which speaks of the execution and registration of sale‑deed, fixes the period of 15 days for the same i.e. execution and registration and it is in that context stated that it will be on payment of Rs.40.000 be[ore the Sub‑Registrar.

5. The contents of the compromise application or the orders passed thereon and the surrounding circumstances do not suggest that time D was essence of the contract but still it was expected that the parties had to perform that contract within a reasonable time. The sending of notice on 27‑8‑1988 and the filing of the execution application on 3‑8‑1978 and the deposit of the amount of Rs.40,000 on 1‑2‑1979 by him show that the Decree‑holder was vigilant and eager to perform his part of the agreement and had complied with the necessary obligations within reasonable time.

6. Under these circumstances I do not find any merit .in the objections raised by the Judgment‑Debtor. Hence I direct that the Decree‑holder shall get the draft Sale‑Deed prepared on requisite stamp paper within a week and present it before the Nazir. The Judgment‑Debtor shall appear before the Nazir on 27‑10‑1988 to accompany him to the Sub‑Registrar, failing which it will be presumed that he has no intention to obey the decree of the Court and in that case the Nazir shall get the Sale‑Deed registered without any further order of the Court. After the registration of the Sale‑Deed the Judgment‑Debtor will be at liberty to take away the balance, of the consideration deposited by the decree‑holder..

24. M . Y . H . / A‑429/ K ‑ Objection overruled.