1996 M L D 1177

[Karachi]
Before G. H. Malik, J
INDUSTRIAL DEVELOPMENT BANK OF PAKISTAN---Petitioner
Versus
Messrs AL-FAUD COLD STORAGE and 3 others---Respondents

Civil Miscellaneous Applications Nos.318R, 3586 and 3646 of 1991 and Judicial Miscellaneous
No.46 of 1988, decided ca 7th June, 1992.
Industrial Development Bank Ordinance (XXXI of 1961)---
----S.39---Civil Procedure Code (V of 1908), O.XXI, R.92, O.XLIII, R.1, O.XLVII, R.1, Ss.47,
104 & 151---Order for sale of property in question-- Applicant's offer was accepted; documents
of title were handed over to him after full payment by him---Physical possession of the property,
however, could not be handed over to applicant (purchaser)---Purchaser's counsel making
application in Court whereby he made prayer for refund of purchase price which was accepted
by Court---Applicant on knowledge of such order of Court sought re-call of the order of Court
whereby his purchase amount was ordered to be refunded on the ground that prayer of counsel
was not authorised by him and that he was not bound by it---Question was whether order was
appealable or could be set aside by the Court itself which passed the same---Held, order in
question was not one under either O.XXI, R.92 or under S.47. C.P.C. but would be assumed to
have been passed in exercise of inherent powers under S.151, C:P.C.---Such order was,
therefore, not appealable either under O.XLIII, R.1 or S.104, C.P.C.---Even assuming that order
in question, was appealable, Court was competent to recall the same either under S.151 or under
O.XLVII, R.1, C.P.C.---Application to recall such order was thus maintainable either under
5.151 or O.XLVII, R.1, C.P.C ---Evidence on record clearly established that counsel
representing purchaser (applicant) had made statement in Court for refund of purchase price
without knowledge and without authority by the purchaser---Order for refund of purchase money
was recalled in circumstances.
Ghasiram Goenka v. Hari Bux Goberdhon Das AIR 1930 Cal. 477 and Mst. Noor Jehan v.
Azmat Hussain Farooqui (C.A. No.278-K of 1990) rel.
Onkar Bhagwan v. Gama Lakhaji & Co. AIR 1933 Bom. 205; Devendra Nath Sarkar v. Ram
Rakhpal Singh AIR 1926 Oudh. 315; Basangowda v. Yogangowda (1910) 34 Bom. 408; 12
Born. LR 223; Mst. Noor Jehan v. Azmat Hussain Farooqi (Civil Appeal No.278-K of 1990);
Mir Haji Ghulam Shah v. Khan Chand Gopaldas AIR 1939 Sindh 137; Muhammad Bibi v.
Abdul Ghani PLD 1973 Kar. 444 and Mrs. Mehr Sultan Jang v. Qurban Hussain 1972 SCMR 73
ref. -
Habibur Rahman for Petitioner. Zia Parvez for Respondents.
ORDER
This is an application by the purchaser Nabi Ahmad Ansari to set aside the. order, dated the 18th
December, 1991, whereby the money deposited by him on account of purchase price of the
property in question in this case was ordered to be refunded to him and the offer of Ramzan Ali
to purchase the property was accepted.
2. The property in question is the plots of land bearing No. 1-D-2 and 1-D-3, St-9/1, measuring
971.4 and 974 square yards, respectively, situated at Sector 16-B, North Karachi; and it was
ordered to be sold by order, dated the 20th August, 1990, passed under section 39 of the
Industrial Development Bank of Pakistan Ordinance, 1961.
3. Before the property could be sold in pursuance of the order dated the 20th August, 1990, an
application (C.M.A. 2402/91), signed by Mr. S. Zaki Muhammad, Advocate for respondents
Nos. l and 2, and Mr. Hidayatullah Ghulamali, Advocate for respondents Nos.3 and 4,
purportedly on behalf of the respondents, was filed on 26th August, 1991. It was not signed by
any of the respondents but the respondent No.2 filed an affidavit in support of it. In the
application it was stated that the respondents Nos. 2 to 4, being partners in respondent No. 1, had
"arranged a buyer by private negotiations" and that buyer had agreed to purchase the property for
Rs.14,00,000 and the respondents prayed that the property be sold to that buyer at that price. It is
significant that the buyer's name was not type-written in the application but was inserted in ink in
the space left blank for that purpose. This application was opposed by respondents Nos. l, 3 and
4 who filed counter-affidavits alleging, inter alia, that the counsel had no authority to make it.
The record shows that as on the 26th August, 1991 when C.M.A. 2402/91 was filed Mr.
Hidayatullah Ghulamali had filed a Vakalatnama on the Ist March, 1989, on behalf of respondent
No.4 and on the 14th February, 1990, on behalf of the respondents Nos. l and 3 the latter
Vakalatnama being signed by one Abdullah Khan as attorney; Mr. Noorullah Manji had filed a
Vakalatnama on the 23rd May, 1991, for respondent No.3, and on the 26th August, 1991, for
respondents Nos.l and 2. Thus, respondent No. l was represented by Mr. Hidayatullah Ghulamali
and Mr. S. Zaki Muhammad, the respondent No.2 by Mr. S. Zaki Muhammad alone, respondent
No.3 by Mr. Hidayatullah Ghulamali and Mr. Noorullah Manji, and respondent No.4 by Mr.
Hidayatullah Ghulamali.
4. Counter-affidavit opposing C.M.A. 2402 of 1991 was filed by Abdullah Khan as attorney of
respondents Nos. l and 3 and it was alleged therein that respondents Nos. l, 3 and 4 had
published a notice cancelling authority given to respondent No.2. The respondent No.4 had
produced with his counter affidavit a copy of public notice in HURRIYET, dated 15th
September, 1991, stating that power of attorney given to respondent No.2 was cancelled on the
21st March, 1989.
5. From the above it would seem that the respondent No.2 alone was responsible for making the
application C.M.A. 2402 of 1991 and the "purchaser" Masood Anwar was put up by him. The
application came up for hearing on the 6th October, 1991, when the following order was
passed---
"Mr. Bashir Memon O.A. states that he has received better offers in respect of the property. He,
therefore, prays that fresh offers be invited through advertisement in Dailies DAWN and JANG.
In terms of this order, C.M.A. 2402 of 1991 is disposed of. The applicant will, however, be at
liberty to make or offer subsequently before the Official Assignee after advertisement. By
consent to come up on 28-10-1991 when the offers will be placed before the Court for orders."
6.While the offers were being invited by the Official Assignee, the respondent No.2 made an
Application (C.M.A. 3052 of 1991) praying that he be allowed to purchase the property "at two
per cent above the highest bid in case the offer is not exorbitant and beyond his means." That
application came up for hearing on the 28th October, 1991, alongwith the reference dated the
27th October, 1991, made by the Official Assignee. On that date the offer is not exorbitant and
beyond his means." That application came up for hearing on the 28th October, 1991, alongwith
the reference, dated the 27th October, 1991, made by the Official Assignee. On that date the
offer of Nabi Ahmed Ansari to purchase the property for Rs.25,20,000 was accepted and the
respondent No.2 withdrew his Application (C.M.A. 3052 of 1991).
7. Nabi Ahmed Ansari subsequently deposited the balance purchase price and on the 7th
November, 1991, the Official Assignee was directed to hand over possession of the property to
the purchaser alongwith documents of title in respect thereof. It appears that the documents of
title were subsequently handed over to Nabi Ahmed Ansari but the possession of the property
could not be delivered to him. He, therefore, filed an application (C.M.A. 3188 of 1991) praying
that value of certain machinery which was missing be refunded to him and that possession of the
property be obtained from unauthorised persons and handed over to him. By order dated the 27th
November, 1991, the Official Assignee was directed to deliver possession to the auction
purchaser and obtain police aid if necessary; and the application remained pending with regard to
the prayer for refund of part of the purchase price.
8. The Official Assignee was unable to execute the order, dated the 27th November, 1991, and,
consequently it was ordered on the 11 th December, 1991, that notice be issued to S.H.O.,
Gulberg Police Station and S.I. Ghulam Sarwar Mirza to appear before the Court on "12-12-1991
". It appears that the case was not listed for hearing on the 12th December, 1991, and no
proceedings took place on that date. The Diary Sheet, however, contains the following noting on
12-12-1991:---
"Before Mr. Justice H. Kh. Adj. to 16-12-1991."
9. It is necessary at this stage to notice the developments which took place between the 11 th and
the 18th December, 1991, when the impugned order was passed. On the 12th December, 1991,
Ramzan Ali signed but did not file, an Application (C.M.A. 3586 of 1991) praying that the order
for police aid be recalled and constructive possession of the property be delivered to the (Nabi
Ahmed Ansari) because, as alleged in the affidavit, he, the tenant in the property, having
obtained tenancy respondent No.2 and Kafil Ahmad Siddiqui who were authorised to deal with
the property and the lease having been revised by Lease Agreement, dated the 18th February,
1989, executed by the same two persons. On the 15th December, 1991, Mr. Noorullah Manji
who had hither to been appearing for respondents Nos. 1, 3 and 4 filed Vakalatnama on behalf of
Nabi Ahmad Ansari. On the 16th December, 1991, the case was listed for hearing and although
the purpose for which it was fixed does not appear on the order sheet for that date it appears clear
it was for hearing of C.M.A, 3188 of 1991 and one other miscellaneous application. On the same
date Ramzan Ali filed his Application (C:M.A. 3586 of 1991). This application finds no mention
in the order, dated the 16th December, 1991, but, according to counter-affidavit filed by Nabi
Ahmed Ansari on 18th December, 1991, "on 16-12-1991 the police officer remained present but
one Ramzan Ali presented an application for recalling the order of the.police aid." On the same
day i.e. 16th December, 1991, respondent No.2 filed a counter affidavit opposing the prayer in
(C.M,A, 3188 of 1991) of Nabi Ahmad Ansari for refund of a part of the purchase price and
stating that one Mst. Rahmat Begum was prepared to purchase the property for Rs.25,70,000.
The hearing was, however at the joint request adjourned to 18-12-1991 ".
10. On the 18th December, 1991, the case came up in Court for orders on` C.M.A. 3586 of 1991
(By Ramzan Ali) and for hearing of C.M,A. 3266 of 1991 (by the petitioner for payment of the
purchase money) and C.M.A. 3188 of 1991 (by Nabi Ahmed Ansari). As stated above C.M.A,
3188 of 1991 was pending only in respect of the prayer therein for refund of the purchase money,
the other prayer for police aid having been already granted on the 27th November, 1991 Nabi
Ahmed Ansari, apparently filed a counter-affidavit on that date opposing the Application
(C.M.A. 3586 of 19 1) of Ramzan Ali. Thus, apart from the petitioner's Application (C.M.A.
3266 of 1991) which is not relevant for the purpose of this order, the only question for hearing
before the Court on the 18th December, 1991, was the prayer of Nabi Ahmed Ansari for refund
of a part of the purchase price. Ramzan Ali's Application (C.M.A. 3586 of 1991) was listed only
for orders. However, the following order was passed on that date: ---
"Mr. Noorullab Manji, learned counsel for auction/purchaser states that the purchaser had
offered to purchase the property on the understanding that the property would be transferred to
him and vacant possession thereof will be delivered by the Official Assignee under the direction
of the Court. Mr. Bashir Memon, learned Official Assignee has pointed out to the advertisement
appearing in the dailies 'DAWN and JANG' wherein one of the terms of sale of the property was
that the property would be sold on "as and where basis, according to which the purchaser would
only entitled to vacant possession of the property if the property had been in vacant possession
but if there are tenants/occupants he cannot seek their eviction in a summary manner by the
Court. In view of this position Mr. Noorullah A. Manj: requests that amount deposited by the
purchaser towards the property be returned to him. Order accordingly. At this juncture Mr. S.A.
Mannan, Advocate for applicant Ramzan Ali has made an offer in the sum of Rupees 25,50,000
which offer is acceptable to Mr. Habibullah Jatoi, learned counsel for petitioner as well as
representative of petitioner Mr. Zafar Hameed. Accordingly the offer of applicant Ramzan Ali is
accepted with direction to him to deposit 25 % of the sale consideration within a week hereof
and the balance 75 % within the next three weeks. "
11. Nabi Ahmed Ansari moved the present application on the 26th December, 1991, on the
ground that the order, dated 18th December, 1991 was procured by producing a fraudulent
document i.e. a lease in favour of Ramzan Ali. In para. 4 of the affidavit in support of the
application it is alleged: --
"That the Advocate Mr. Noorullah Manji, who was appearing for defendants Nos.l, 3 and 4 was
requested by me to seeking the permission of Court for police assistance and who filed the
counter affidavit but without my instruction had made a statement before the Court without
authority, which statement, was inconsistent to the affidavit, I had filed in the Court."
Ranizan Ali has filed a counter-affidavit alleging in para. 5 thereof:-
"I say that the averments of paragraphs Nos.4 and 5 are denied as false and misleading the
statement for withdrawal of the offer was made by the learned Advocate after consulting the
applicant inside the Court room with his construction. "
12. In view of the controversy mentioned in the preceding paragraph, it was considered
necessary to record the evidence of the parties. Nabi Ahmed Ansari deposed on his own behalf
but Ranizan Ali, in spite of being given opportunities to do so, did not appear to give evidence
and did not produce any witness.
13. Mr. Zia Parvez, the learned counsel for Ranizan Ali, contended at the outset that the order,
dated the 18th December, 1991, was one either under Order 21, Rule 92 or under section 47,
C.P.C. that, in either event, it was appealable; and that, therefore, it cannot be recalled in exercise
of inherent power under section 151, C. P.C.
14. As indicated above, the sale of the respondents' property was ordered under the provisions of
section 39 of the Industrial Development Bank Ordinance, 1961.
Subsection (10) of that section provides:---
"An order under this section for the attachment or sale of property shall be carried into effect as
far as may be in the manner provided in the Code of Civil Procedure, 1988 (Act V of 1908), for
the attachment or sale of property in execution of a decree as if the Bank were the decree holder.
"
It is, therefore, necessary to examine the provisions of C.P.C. relating to sale of a property in
execution of a decree. Those provisions are contained in Order 21, Rules 64 to 103. Rules 64 to
73 contain provisions regarding sales generally and Rules 74 to 81 concern sale of movable
property. Those rules, i.e. Rules 64 to 81 are not germane to the present argument and it is only
necessary to consider Rules 89 to 92 of Order 21. Rule 92 provides:---
"(1) Where no application is made under rule 89, rule 90 or rule 91, 02 where such application is
made and disallowed the Court shall make an order confirming the sale, and thereupon the sale
shall become absolute.
(2) Where such application made and allowed, or where, in the case of an application under rule
89, the deposit required by that rule is made within thirty days from the date of sale, the Court
shall make an order setting aside the sale:
Provided that no order shall be made unless notice of the application has been given to all
persons affected thereby.
(3) No suit to set aside an order under this rule shall be brought by any person against whom
such order is made."
15. Since the impugned order is not one of confirmation of sale but one setting aside the sale in
favour of Nabi Ahmed Ansari, it is only sub-rule (2) of rule 92 of Order 21 which needs to be
considered. The expression "such application" in sub-rule (2) refers, obviously to an application
under rule 89, rule 90 or rule 91 mentioned in Sub-rule (1); and the Court is required, by sub rule
(2), to set aside a sale where such an application is made and allowed. Under rule 89, "any
person, either owning such property (i.e. property which has been sold) or holding an interest
therein by virtue of a title acquired before such sale may apply to have the sale set aside. " Rule
90 provides that an application may be made by a decree-holder or any person entitled to a share
in rateable distribution of the assets to have the sale set aside on the ground of material
irregularity or fraud in publishing or conducting it; and, under rule 91, the purchaser may apply
to have the sale set aside on the ground that the judgment debtor had no saleable interest in the
property sold. Now, in the first place, there was no application in the present case by any one to
have the sale set aside. Even Ramzan Ali, far from seeking to have the sale set aside, only
wanted that constructive possession of the property be delivered to Nabi Ahmed Ansari and that
the order for police aid to obtain physical possession of the property be recalled. Indeed, Ramzan
Ali did not claim to be the owner of the property or having any interest therein except being
tenant therein. There was, therefore, no occasion for him to apply under rule 89. Again Ramzan
Ali, not being a decree holder or a person entitled to a share in rateable distribution of the assets
or a purchaser could not and indeed did not, apply under rule 90 or rule 91. It is, thus, clear that
the order setting aside the sale was not passed on any application for that purpose. The impugned
order was, therefore, not one under Order 21, Rule 92, C.P.C.
16. It also does not appear that the impugned order has been passed under section 47 of the Civil
Procedure Code. Subsection (1) of section 47 provides: --
"All questions arising between the parties to the suit in which the decree was passed, or their
representatives, and relating to the execution, discharge or satisfaction of the decree, shall be
determined by the Court executing the decree and not by a separate suit. "
The question or the dispute before the Court on the 18th December, 1991, was whether Nabi
Ahmed Ansari was entitled to physical possession of the property or whether he was entitled
only to constructive possession because Ranmzan Ali claimed to be the tenant of the judgment-
debtor; and that question of dispute was one between Nabi Ahmed Ansari and Ranmzan Ali.
Both of them were representatives of the judgment-debtor because Ansari claimed possession by
virtue of title acquired as purchaser of judgment debtor's interest in the property and Ranmzan
Ali claimed to be in possession by virtue of an alleged tendency rights. The decree-holder was
not concerned with the dispute. The question, therefore, was not one between the parties or their
representatives but merely between representatives of the same party. Further, the dispute related
to the possession of the property and the preponderance of authority is in favour of the view that
such dispute does not relate to execution, discharge or satisfaction of the decree.
17. Since the impugned order was not one under either Order 21, rule 92 or under section 47,
C.P.C. it may be assumed to have been passed in exercise of inherent powers under section 151,
C.P.C. Therefore, it was not appealable under either Order 43, Rule 1 or section 104, C.P.C. But,
even assuming that an appeal lay from the impugned order, this Court is not prevented from
recalling the order in exercise of its power under Order 47, rule 1 or section 151, C.P.C. In Onkar
Bhagwan v. Gama Lakhaji & Co. AIR 1933 Born. 205 an appeal challenging a compromise
decree passed by consent was dismissed as barred by section 96(3), C.P.C. but it was observed
that if a decree was alleged to be fraudulent it could be challenged in review or possibly under
section 151, C.P.C. and in the case of Devendra Nath Sarkar v. Ram Rakhpal Singh AIR 1926
Oudh. 315, where a District Judge had allowed an application to set aside a decree based on an
alleged compromise, it was held:---
"The District Judge has relied on the decision of the Bombay High Court: Basangowda v.
Yogangowda (1910) 34 Born. 408; 12 Born. LR 223 where it is stated that every Court has an
inherent power to correct its own proceedings, and where it was held that a Court could set aside
its own decree based on a compromise which it found to have been filed by a person having no
authority to make or present the compromise: No authority to the contrary has been shown to us
and we are of the opinion that the lower Court had power to act in the manner stated. It is
immaterial whether this power is to be found in section 151 or section 153 of the Civil Procedure
Code, or whether it is a power in review."
In unreported case of Mst. Noor Jehan v. Azmat Hussain Farooqi (Civil Appeal No.278-K of
1990), High Court Appeal was disposed of on the basis of a joint statement by the counsel for the
parties and the order disposing of the High Court Appeal was challenged by an application under
section 151, C.P.C. praying that the order be recalled because the joint statement was filed by the
petitioner's counsel without her authority and/or instructions. The application was dismissed by a
Division Bench of this Court and in appeal it was held by the Supreme Court that since the
statement pertained to a collateral matter, the Advocate had no authority to make it. It was held:
--
"We are, therefore, of the view that the statement seems to have been made inadvertently,
without considering the facts and circumstances of the case and without any specific authority
from the appellant in respect of matter which in the peculiar facts of this case was collateral to
the main controversy between the appellant and the respondent No. Such undertaking, therefore,
cannot be allowed to be continued."
It will be seen that the order passed on that basis of a statement made by a counsel was recalled
or set aside on application made under section 151, C.P.C. It would, thus, appear that the
application to recall the impugned order is maintainable either under section 151 or under Order
47, rule 1, C.P.C.
18. Mr. Zia Parvez sought to rely on the cases of Mir Haji Ghulam Shah v. 8 Khan Chand
Gopaldas AIR 1939 Sindh 137; Muhammad Bibi v. Abdul Ghani PLD 1973 Kar. 444 and Mrs.
Mehr Sultan Jang v. Qurban Hussain 1971 SCMR 73. In AIR 1939 Sindh 137, a subordinate
Judge at Hyderabad had dismissed the suit as against one of the defendants on the ground that it
was not maintainable because the liability for specific performance of an agreement to sell land
was within the term "debts and liabilities" in sections 8 and 9 c)f the Sindh Incumbered Estate
Act. His successor, taking a contrary view, came to the conclusion that the suit was competent
and set aside the order, purportedly under section 151, C.P.C. He had, however, "clearly
reviewed the judgment of his predecessor" as was observed in appeal. It was held that he was not
entitled to do so and further that neither Order 47 nor section 151, C.P.C. were intended to be
used to allow one Judge to sit in appeal on orders of his predecessor exercising an equal
jurisdiction. The facts of the present case are entirely different. The case reported in PLD 1973
Kar. 444 was concerned with setting aside an order obtained by fraud. In the present case, the
impugned order wa passed on the basis of a statement made by the Nurullah Manji and what is
questioned in the present proceedings in his authority to make such statement. It is true that the
application does mention fraud but that fraud is obviously alleged to be on the part of Ramzan
Ali and the impugned order is not based on any act of Ramzan Ali but on the statement made by
Mr. Manji. In 1972 SCMR 73 the petitioner refused to make an application for appointment of
receiver under Order 40, C.P.C. and it was held that he could not seek directions, under section
151, C.P.C., to the Nazir to collect occupation charges from persons in possession of the
property. That case is, therefore, distinguishable.
19. In order to see whether Mr. Noorullah A. Manji had the authority to act in the manner in
which he did on the 18th December, 1991, it is necessary to recapitulate, briefly, the preceding
events. The inventory of the property was prepared on the 19th December, 1988, by the Deputy
Nazir who reported, inter alia, that "one Rahim Bux stated to be labour of the factory was
present. The factory was not in running condition and all the rooms etc. were lying opened."
Before the offers for the purchase of the property were received by the Official Assignee, the
respondent No.2 made two attempts - vide C.M.A. 2402 of 1991 and C.M.A. 3052 of 1991 to
ensure that the property was not sold or, at least, sold to his nominee. Nabi Ahmed Ansari made
his offer personally and also obtained an order for delivery of possession, if necessary, through
police aid. On the 15th November, 1991, the Application (C.M.A. 3188 of 1991) made by Nabi
Ahmad Ansari was pending only in respect of the prayer in it for refund of a part of the purchase
money and it was on that date that he engaged Mr. Noorullah A. Manji, who was then also
appearing for some of the respondents. Ramzan Ali made his Application (C.M.A. 3586 of 1991)
on the 16th December, 1991, to recall the order for police aid and to deliver only constructive
possession to Nabi Ahmed Ansari. Thus, on the 18th December, 1991, when the case came up
before the Court, only questions before it were whether Nabi Ahmad Ansari was entitled to
refund of part of the purchase price and whether Ramzan Ali was entitled to remain in physical
possession of the property and Nabi Ahmad Ansari was entitled to only constructive possession
thereof. The property had already been sold to Nabi Ahmed Ansari and the sale had been
completed and the title in the property had vested in him. There was, therefore, no question
before the Court regarding the cancellation or the setting aside of the sale of the property to Nabi
Ahmed Ansari.
20. Mr. Habibur Rehman submitted that in these circumstances, it was incumbent upon Mr.
Manji to consult Nabi Ahmed Ansari before requesting the Court that the amount deposited by
him for purchase of the property be returned to him; and further that the return of the purchase
price or the cancellation of the sale was a matter which was collateral to the matters pending
before the Court and, therefore, Mr. Manji had no authority to make such request. He relied on
the case of Ghasiram Goenka v. Hari Bux Goberdhon Das AIR 1930 Cal. 477 and Mst. Noor
Jehan v. Azmat Hussain Farooqui (C.A. No.278-K of 1990). In AIR 1930 Cal. 477, a consent
decree had been made by Buckland, J. and' an application to set aside that decree on the ground
that the counsel had no authority to consent and had in fact consented against the wishes of his
client was heard by Panckridge, J. The decree was set aside and it was held that when a client is
present in Court, he has right to be consulted before the counsel gives his consent to a decree and
consent given by the counsel without such consultation is without authority express or implied.
In the case of Mst. Noor Jehan v. Azmat Hussain Farooqui, the respondent No. l had filed a suit
for recovery of possession of a house which the respondent No.2 had transferred to him, and for
mense profits. The house was in the possession of the appellant who was not impleaded as a
party. The respondent No.2 confessed judgment and the suit was decreed in terms of compromise
directing the respondent No.2 to hand over the possession of the property to respondent No. 1.
The appellant made an application under section 12(2), C.P.C. challenging the decree as having
been obtained by collusion and fraud and also an application for stay of execution in the
meantime. The application of the appellant for stay of execution was dismissed by a learned
Single Judge of this Court and the appellant filed a High Court Appeal against the order
dismissing her application. At the hearing of the High Court Appeal, a joint statement by the
Advocates for the parties was recorded whereby the appellant was required to deposit in Court a
sum of Rs.2,000 per month subject to the result of her application under section 12(2), C.P.C.
and the appeal was accordingly disposed of. The appellant claimed that the joint statement by her
counsel was filed without her authority and/or instructions, and filed an application under section
151, C.P.C. for recalling the order by which the appeal was disposed of. The learned Judges of
the Division Bench took the view that the Vakalatnama executed by the appellant in favour of
her Advocate expressly conferred the power of compromise on him and, therefore, he was
competent to make a compromise statement which was impugned by the appellant. It was held
that the question of recovery of mense profits from the appellant was a subject collateral to the
main controversy between the appellant and the respondent No.l and that if the facts and
circumstances of the case had been considered and made known to the appellant in normal
course she would not have agreed or instructed her counsel to enter into such a compromise. It
was further held that there was nothing on the record that the appellant had instructed her counsel
specifically to enter into such a compromise and that the compromise was on the basis of the
general authority given in the Vakalatnama which was extended to collateral subject. The
Supreme Court, therefore, took the view that the statement made by the counsel in High Court
Appeal was made inadvertently, without considering the facts and circumstances of the case and
without any specific authority from the appellant in respect of a matter which was collateral to
the main controversy between the appellant and the respondent No. l and that the undertaking
given by the counsel could not be allowed to continue.
21. As indicated above, the question of refunding the entire amount of purchase price to Nabi
Ahmad Ansari and the consequent cancellation or setting aside of the sale was not before the
Court on the 18th December, 1991. It was a question which was, thus, collateral to controversy
which was pending. The learned counsel who was appearing for Nabi Ahmed Ansari had,
therefore, no authority to make the request for refund of the purchase money. It may further be
noted that, in the facts and circumstances of the present case, it does not appear possible to
believe that any reasonable person would have consented to an order which was passed on the
18th December, 1991. The inventory prepared on the 19th December, 1988, did not show
Ramzan Ali or any one else to be in possession of the property. Neither in C.M.A. 2402 of 1991,
which was made at the instance of respondent No.2, nor in C.M.A. 3052 of 1991 made by
respondent No.2 is there any mention of any tenant in the property. The alleged agreement of
lease executed in favour of Ramzan Ali by respondent No.2 states expressly that the lesson ' is in
physical possession' of the property; and Nabi Ahmed Ansari had filed a counter-affidavit on the
18th December, 1991, disputing the claim of Ramzan Ali and alleging that the lease alleged to
have been executed in his favour is fraudulent. It is difficult to imagine, that Nabi Ahmad Ansari
having filed a counter-affidavit mentioned above would immediately consent to an order being
passed which ran counter to his strong assertion. Nabi Ahmed Ansari has categorically stated in
his evidence that his Advocate did not consult him on the 18th December, 1991, and has
maintained his stand even during cross-examination. Ramzan Ali, on the other hand, failed to
appear and give evidence to support his assertion, reproduced here in above, that Nabi Ahmad
Ansari was consulted by his counsel before making the request for refund of the purchase
money. It is therefore, clear that Mr. Noorullah A. Manji. made the request on the 18th
December, 1991, without consulting his client and without his authority. The order, dated the
18th December, 1991, is, therefore, liable to be, and is, hereby, recalled.
C.M.A. No.3188 of 1991 and C.M.A. No. 3586 of 1991 will be fixed for hearing in due course.
A.A./I-253/K Order
accordingly.