Nazir Ahmad etc. vs Adj etc.

FORM No. HCJD/C-121

ORDER SHEET

IN THE LAHORE HIGH COURT,

BAHAWALPUR BENCH, BAHAWALPUR

JUDICIAL DEPARTMENT

C.R.No. 790 of 2012/BWP

Nazir Ahmad and others. Vs. Addl. District Judge, etc.

Sr. No. of Date of order/ Order with signature of Judge, and that of order/ Proceeding Parties’ counsel, where necessary proceedings 18.02.2021. C.M.No. 970 of 2021/BWP Raja Muhammad Sohail Iftikhar, Advocate for applicants-petitioners.

Mr. A.R. Aurangzeb, Advocate for respondents No. 2 to 9, on watching brief.

Through this application filed under Order XLI Rule 5 (2) read with Section 151 of the C.P.C, the applicants/petitioners pray for suspension of operation of the impugned judgment and decree dated 29.11.2012 passed by learned lower appellate Court and judgment dated 09.02.2021 passed by this Court for enabling him for filing of appeal before the August Supreme Court of Pakistan, which is opposed by the learned counsel for respondents No. 2 to 9.

2.Learned counsel for the petitioners states that in terms of the Order XLI Rule 5 (2) of the CPC during the subsistence of period of limitation provided for filing of appeal before the apex Court, the petitioners are entitled to grant of stay, whereas the learned counsel for the respondents states that this Court had not passed any decree rather the Civil Revision was dismissed against the order passed by Civil Judge, Haroonabad, dated 15.12.1985 and by Addl. District Judge, on 29.11.2012, whereby the application for making award as rule of the Court was dismissed by both the courts below and present Civil

C.M.No. 970 of 2021/BWP in C.R.No. 790 of 2012/BWP Revision has also been dismissed, therefore, there is no occasion to grant relief.

3.Heard. Record perused.

4.Brief facts for the disposal of this revision petition are that the petitioners filed an application on 28.09.1985, before the learned Civil Judge, Haroonabad, to make the award of the Arbitrator dated 08.09.1985, regarding land measuring 200 Kanal, bearing Khata No. 45/43, Khatooni No. 167 to 169, situated in Chak No. 26/3R, Tehsil Haroonabad, District Bahawalnagar as ‘Rule of Court’ under Section 14 of the Arbitration Act, 1940 (the ‘Act’). Subsequently, on 29.09.1985, the vendor Muhammad Yousaf got recorded his statement to the effect that he had received Rs. 600,000/- and has no objection for the acceptance of afore-said application. The learned trial court, after hearing the arguments, dismissed the application vide order dated 15.12.1985, against which an appeal was filed. On 30.10.1986, learned counsel for the parties got recorded their statement that they had got no objection if the appeal is accepted. Subsequently, the appeal was accepted vide judgment dated 08.11.1986 whereby the order dated 15.12.1985 was set-aside and the award dated 08.09.1985 was made as Rule of Court. On 04.01.2005, the respondent No.12/Muhammad Shafi filed an application under Section 12 (2) of the C.P.C for setting-aside the judgment and decree dated 08.11.1986 on the ground that the same was obtained through fraud and mis- representation, which was resisted and consequently after framing of issues and recording evidence of both the parties, the same was accepted by the learned Addl. District Judge, Bahawalnagar vide order dated 04.12.2010 and the judgment and decree dated

C.M.No. 970 of 2021/BWP in C.R.No. 790 of 2012/BWP 08.11.1986 was set-aside and appeal was restored with the direction to file amended memo of appeal by impleading Muhammad Shafi and the legal heirs of decreased Muhammad Yousaf. Consequently, the learned appellant court dismissed the appeal vide impugned judgment dated 29.11.2012. Feeling aggrieved thereof, the petitioners filed this Civil Revision, which has also been dismissed vide impugned judgment dated 09.02.2021. The applicants- petitioners seek stay of operation of judgment dated 09.02.2021 passed by this Court during the period of limitation to provide them opportunity to file appeal/ petition for leave to appeal before the Hon’ble Supreme Court, which is opposed by the respondent on the ground that impugned judgment can only be suspended if any executable decree/order is passed by this Court, which has not been done, hence, this application is not maintainable. In order to resolve the said controversy, Order XLI Rule 5 of the C.P.C, which is relevant provision on the subject, needs to be examined, which provides as under:-

“Order-XLI Rule-5(1): “Stay by Appellate Court- An appeal shall not operate as a stay of proceedings under a decree or order appealed from except so far as the Appellate Court may order, nor shall execution of a decree be stayed by reason only of an appeal having been preferred from the decree; but the Appellate Court may for sufficient cause order stay of execution of such decree.

Explanation- An order by the Appellate Court for the stay of execution of the decree shall be effective from the date of the communication of such order to the Court of first instance but an affidavit sworn by the appellant, based on his personal knowledge, stating that an order for the stay of execution of the decree has been made by the Appellate Court shall, pending the receipt from the Appellate Court of the order for the stay of execution or any order

C.M.No. 970 of 2021/BWP in C.R.No. 790 of 2012/BWP to the contrary, be acted upon by the Court of first instance”.

Order-XLI Rule-5(2): “Stay by Court which passed the decree - Where an application is made for stay of execution of an appealable decree before the expiration of the time allowed for appealing therefrom, the Court which passed the decree may on sufficient cause being shown order the execution to be stayed”.

Order-XLI Rule-5(3): “No order for stay of execution shall be made under sub-rule (1) or sub- rule (2) unless the Court making it is satisfied- (a) that substantial loss may result to the party applying for stay of execution unless the order is made; (b) that the application has been made without unreasonable delay; and (c) that security has been given by the applicant for the due performance of such decree or order as may ultimately be binding upon him.”

The perusal of afore-referred Rule shows that jurisdiction of this Court to grant stay of execution of impugned order/judgment during the pendency of the limitation period for filing appeal is limited to the powers mentioned in the order XLI Rule 5 of the C.P.C and the sub-Rule 2 of the same is relevant, wherein it is provided that the Court that passed the decree could on sufficient cause being shown stay its execution in case the decree is appealable, however, in the present case through the impugned order/judgment, the application for making award as Rule of the Court has concurrently been dismissed by all the three forums and no executable decree has been passed, therefore, the condition provided in sub-Rule 2 relating to the said impugned order being executable of which proceedings have been sought to be stayed does not arise. Moreover, no direct appeal lies before the Hon’ble Supreme Court of Pakistan against the order passed by this Court, where the concurrent orders passed by courts below have been upheld resulting into dismissal of matter throughout the hierarchy of forums rather the

C.M.No. 970 of 2021/BWP in C.R.No. 790 of 2012/BWP petitioners have to seek remedy by filing petition for leave to appeal, therefore, provision of Order XLI Rule 5 (2) C.P.C are not attracted to the present case on that account as well. Reference in this regard is placed on 2005 MLD 1976 (Messrs SIGN SOURCE through Partner Versus Messrs ROAD TRIP ADVERTISERS through Partner and another), wherein it is laid down as under:-

“The trial court has been given Power to stay the Execution of appealable decree under Order XLI, Rule 5 (2), C.P.C. The said provision reads as under:-- “5. Stay by Appellate Court--(1) An appeal shall not operate as a stay of proceedings under a decree or order appealed from except so far as the Appellate Court may order, nor shall execution of a decree be stayed by reason only of an appeal having been preferred from the decree; but the Appellate Court may for sufficient cause order stay of execution of such decree.

Stay by Court which passed the decree.-- (2) Where an application is made for stay of execution of appealable decree before the expiration of the time allowed for appealing therefrom, the Court which passed the decree may on sufficient cause being shown order the execution to be stayed.

(3)No order for stay of execution shall be made under sub-rule (1) or sub-rule (2) unless the Court making it is satisfied.

(a)that substantial loss may result to the party applying for stay for execution unless the order is made,

(b)that the application has been made without unreasonable delay; and

(c)that security has been given by the applicant for the due performance of such decree or order as may ultimately be binding upon him.

(4)Notwithstanding anything contained in sub- rule (3), the Court may make an ex parte order for stay of execution pending the hearing of the application.’

In the present case the decree is appealable therefore, this Court has power to stay such decree on fulfillment of following conditions:--

(a)There should be sufficient cause for stay of decree.

C.M.No. 970 of 2021/BWP in C.R.No. 790 of 2012/BWP

(b)The application should establish that substantial loss will result if the execution is allowed to proceed.

(c)Security must be obtained for the performance of such decree or decree as may ultimately be passed.

(d)The application for stay should be made without unreasonable delay.

From the above provision of law it is clear that the rule will apply only when the decree is capable of execution. The decree in the present form is not capable of execution. However, important condition for grant of stay is that if the stay is not granted then substantial loss will result if the execution is allowed to proceed. I have gone through the application filed by the plaintiff and find that it has been filed on the ground that the plaintiff intends to file appeal, therefore, the decree may be suspended. It will be noticed that the ground taken in the application is not covered under Order XLI, rule 5, C.P.C., as such, the decree cannot be suspended on the above mentioned ground. “

5.Moreover, Order XLI Rule 5 (3) C.P.C provides that order for stay of execution under sub- Rule 2 shall not be made unless the court making it is satisfied that a substantial loss may result to the party applying for stay of execution if said order is not passed and the application has been made without unreasonable delay and further security has been given by the applicant for due performance of said decree or order as may be ultimately binding on him. In the present case, as already observed no executable order has been passed yet. In these circumstances, even if application is filed without delay, no ground exists for grant of stay.

6.It has been pointed out that no execution is pending before any forum or authority. It is settled by now that where no execution has been filed in any Court, application for execution of decree stay of proceedings cannot be ordered. Reliance in this regard is placed on PLD 1966 (W.P) Karachi 371 (IBRAHIM

C.M.No. 970 of 2021/BWP in C.R.No. 790 of 2012/BWP AND OTHERS Versus MUHAMMAD ISMAIL A.H.

MEMON COLLECTOR OF LASBELA AND OTHERS)

7.For what has been discussed above, it can safely be concluded that where no executable decree / order has been passed by this Court and no executable decree/order is in existence/holds the field, provisions of Order XLI Rule 5 sub-Rule 2 of the C.P.C could not be invoked to grant stay to the applicants against execution of order passed by this Court in order to avail remedy of appeal before higher forum. In view thereof, no ground to pass an order to stay of execution of order passed by this Court is made out in the present case, hence, this application being devoid of any merits is disposed of as not maintainable.

(Muzamil Akhtar Shabir) Judge Zeeshan Khan

Approved for reporting.

Judge