ORDER WITH THE SIGNATURE OF THE JUDGE

For hearing of CMA No. 425/2015

21.12.2015

Mr. Muhammad Siddique Mirza, advocate for the Judgment-

Debtors No. 1 and 2.

The decree-holder has filed this CMA seeking permission to withdraw the instant execution. Learned counsel for the judgment-debtors has filed counter-affidavit to this application that the judgment-debtor cannot unilaterally enter into any settlement with the decree-holder. According to him, there is a Litigation Agreement between him and the judgment debtor whereby in terms of clause 5, the judgment-debtor cannot make compromise with the decree-holder on his own but with a written consent and approval of all the parties to the agreement. He states that he,in terms of the agreement, is a necessary party and this being a contingent agreement becomes enforceable on happening of some incident. He is of the view that as soon as a settlement is arrived at between the judgment-debtor and the decree-holder, this agreement shall come into force. His case is that in terms of the agreement he has got lien on the subject property in his favour, which cannot be returned back to the decree-holder or sold out in presence of the agreement. The judgment-debtor and the decree-holder cannot be allowed to have a settlement with each other and towithdraw this execution application. Learned counselin support of his arguments has referred to Sections 31 and 32 and 171 of the Contract Act. He emphasizes that his rights arising out of the agreement cannot be compromised by the decree-holder or by the judgment-debtor. Learned counsel states that since without his knowledge decree-holder and the judgment-debtor have come to a settlement, it is not sustainable in the eye of law. According to him when he came to know that Suit No. 61/2010 filed by the judgment-debtor through him against the bank was attempted to be withdrawn by the judgment-debtor through another counsel engaged by him, he resisted it, because in terms of the agreement the judgment-debtor could not negotiate any settlement without his consent with the decree-holder. He states that he duly informed the decree-holder about the terms of the said agreement but the decree-holder did not pay any heed to it and made a settlement with the judgment-debtor and is now trying to withdraw this application. His case is that the bank may be restrained not to act upon any settlement between it and the judgment-debtor without consent of all the parties mentioned in the said agreement. Learned counsel in support of his argumentshas also referredto the case laws reported in AIR (39) 1952 Himachal Pradesh 11, 2012 SCMR 345.

During hearing of this matter,Iput a query to the learned counsel as to how the agreement is binding upon the decree-holder,when it is not party to it,and how the decree-holder, because of presence of this agreement, between him and his clients, cannot be allowed to withdraw this execution application, In reply to which, he has referred to Clause 5 of the agreement to establish his point. For ready reference Clause 5 of the Agreement is reproduced hereunder :-

“That, the First Party” shall not make any compromise with the Silk Bank Ltd., at any stage of the proceeding without joint written consent and approval of all the parties to the agreement.”

The legal value of this agreement and the above clause in present contextis although a different matter and need not to be dilated upon,nonetheless from a reading of the same, it does not transpire that the decree-holder, which is an independent concern having no relationwith the learned counsel, and not a party to the so-called agreement between him and his client,can be stopped from withdrawing the instant application. Admittedly itcannot be construed that this agreement has any effect of regulating the relations between the learned counsel and the decree-holder. The decree-holder has simply moved an application to withdraw the instant execution application unconditionally and has made a reference to a private settlement between it and the judgment-debtor as a reason for withdrawing this application. Even the deed of compromise or terms whereof have not been brought on record. I fail to understand how a nexus can be established between a litigation agreement executed by the learned counsel and his client, who happens to be the judgment-debtor, and the moving of application by the decree-holder to withdraw the instant application. I am of the view that the objection of the learned counsel to the withdrawal of the instant application is not sustainable under any law, and cannot be attended to. On the contrary raising such objection over the application of withdrawal on the grounds as urged by him, learned counsel has tried to mis-lead this Court. In the circumstances, application for withdrawing the instant Execution Application stands allowed. The Execution Application is dismissed as withdrawn.

J U D G E

ZahidBaig