Mst. ASMA BEGUM Versus ABDUL HAMEED (deceased)

SHAHID BILAL HASSAN, J.--- The present controversy arises out of inheritance Mutation No. 2534 dated 18.07.1996 pertaining to the suit property. Respondents Nos. 1 to 6 instituted a suit for declaration against the petitioners and others, asserting that the said mutation was illegal and ineffective with respect to their rights and claiming ownership on the basis of a gift deed dated 28.11.1994. During the pendency of the suit, the petitioners/ defendants sought appointment of a receiver to collect their share of produce from the land in dispute. Although the trial court allowed the application, the appellate court set aside the order; however, in civil revision the matter was settled through an undertaking before the High Court that in the event the respondents/plaintiffs failed in the suit, they would compensate the petitioners according to their share recorded in the mutation.

The suit was ultimately dismissed by the trial court on 17.09.2005, and the dismissal was maintained in appeal and civil revision up to the Peshawar High Court. Following the failure of the respondents suit, the petitioners initiated execution proceedings seeking recovery of the amount representing their share of the produce in terms of the undertaking. Objections filed by the respondents were dismissed by the Executing Court on 19.12.2008 and the execution petition was held maintainable; however, while dismissing the respondents appeal, the appellate court observed that further proceedings in execution might remain stayed in view of the High Court s earlier order.

Subsequently, after dismissal of the respondents civil revision by the High Court on 26.03.2011, the execution proceedings were restored and the trial court directed the petitioners to submit the mode of execution. The respondents again objected, contending that evidence was required to determine the extent of produce and possession of the property. These objections were dismissed by the trial court on 13.06.2012, which order attained finality.

Meanwhile, the parties approached this Court through C.A. No. 139-P/2011 and C.P. No. 446-P/2011 against the High Court judgment dated 07.11.2011. The matter was ultimately resolved on the basis of a compromise vide order dated 01.06.2016 whereby Mutation No. 2534 was to be modified to the extent that the share of the predecessor of the petitioners was reduced to 100 kanals, which was agreed to be treated as the final settlement regarding the disputed mutation.

Pursuant to the said compromise, the petitioners filed a fresh schedule of recoverable amount before the Executing Court. The respondents again raised objections which were dismissed by the Executing Court on 28.01.2017; however, on appeal the matter was remanded by the appellate court on 10.07.2017. Both parties then filed civil revisions before the Peshawar High Court. By judgment dated 18.07.2024, the High Court allowed the respondents revision, set aside the orders dated 10.07.2017 and 28.01.2017, and dismissed the execution petition filed by the petitioners, while the petitioners revision was dismissed. Aggrieved of the said judgment of the High Court dated 18.07.2024, the petitioners have filed the instant Civil Petition for Leave to Appeal.

2. The controversy in the instant petition essentially revolves around whether the undertaking/compromise recorded by the superior Courts, and the order disposing of the proceedings in terms thereof, could be enforced through execution proceedings and whether the High Court was justified in setting aside the orders of the Executing Court?

3. It is by now a settled proposition of law that an order passed on the basis of compromise between the parties, even where no formal decree is drawn, remains binding upon the parties and is capable of enforcement. In Mehar Zulfiqar Ali Babu and others v. Government of Punjab (1997 SCMR 117) , this Court held that even if a decree was not formally drawn, an order disposing of the proceedings in terms of a compromise is nonetheless binding upon the parties and operative between them. Such an order cannot be permitted to be rendered ineffective merely on technical grounds.

4. The jurisprudential basis for this principle flows from section 36 of the Code of Civil Procedure, 1908, which provides that the provisions relating to execution of decrees shall, so far as may be applicable, apply equally to the execution of orders. This position was elucidated in Ranjit Singh Hazari v. Juman Meah (PLD 1961 Dacca 842) wherein it was held that orders of a Court are equally capable of enforcement through the execution mechanism provided under the Code. Earlier judicial opinion expressed in Kilachand Devchand and Co. v. Ajodhuaprasad Sukhamnand (AIR 1934 Bombay 452) also emphasized that once a Court possesses jurisdiction to pass an order, it necessarily retains the jurisdiction and authority to enforce the same, and the law does not permit its machinery to be rendered ineffective or clogged.

Similarly, this Court in Hassan Masud Malik v. Dr. Muhammad Iqbal (1995 SCMR 766) held that a party who voluntarily undertakes before the Court to perform a particular obligation cannot subsequently resile from such undertaking. An undertaking recorded by the Court carries sanctity and enforceability, and the party giving such undertaking cannot be allowed to wriggle out of it at a later stage.

The same principle finds support in Bakhtawar etc. v. Amin etc. (1980 SCMR 89) where it was reiterated that, by virtue of section 36, the provisions relating to execution of decrees apply equally to the enforcement of orders of the Court.

5. Applying the above settled principles to the present case, it is evident that the undertaking recorded during the earlier proceedings and the subsequent compromise recorded by this Court constituted a binding adjudication between the parties. The order disposing of the matter in terms of compromise was not a mere informal arrangement but a judicial order possessing full legal force. Consequently, the petitioners were fully justified in invoking the jurisdiction of the Executing Court for enforcement of the obligations arising out of the said undertaking and compromise.

6. The Executing Court, after considering the objections raised by the respondents, rightly held the execution petition to be maintainable and proceeded in accordance with law. The objections raised by the respondents essentially sought to re-open issues which had already attained finality or which flowed directly from the compromise recorded by the Court. Such an attempt was legally impermissible, as the Executing Court cannot go behind the order sought to be executed.

7. The High Court, while exercising revisional jurisdiction, fell into error in interfering with the well-reasoned orders of the Executing Court and the appellate court and in dismissing the execution petition altogether. The impugned judgment thus resulted in rendering the undertaking and compromise recorded before the Courts insignificant, which is contrary to the settled principles governing enforceability of judicial orders.

8. For the foregoing reasons, these petitions are converted into an appeal and allowed. The impugned judgment dated 18.07.2024 passed by the High Court in Civil Revision No.559-P/2017 is set aside. The Executing Court shall proceed with the execution petition and conclude the proceedings expeditiously in accordance with law.

UN/A-11/SC Appeals allowed.