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Civil Revision No. 434 of 1963, decided on 27th April 1964.
O. XLI, r. 5‑Stay of execution‑No application for execution of decree pending in any Court‑Stay of proceedings cannot be ordered.
Harnaman and others v. Dasondhi and others A I R 1920 Lah. 373 and Jinardan v. Nilkant I L R 25 Bom. 583 ref.
Nasir Shahmir holding brief of Qutubuddin Ahmed for Applicants.
Naimuddin for Respondent No. 1.
M. I. Abbasi for Respondents Nos. 2 and 3.
Mr. Naimuddin points out that the interim stay order is not maintainable in law as there is no application for execution of any decree now pending in this matter. He relies for 'this submission upon two cases reported in A I R 1920 Lah. 373 and in I L R 25 Bom. 583. In the first case it was held that:
"No order for stay of execution can be made under Order XLI, rule 5, C. P. C. if there is no application for execution of the decree under appeal pending before any Court."
In the earlier case of Jinardan v. Nilkant (I L R 25 Bom. 583) a Division Bench of the Bombay High Court had taken a similar view. In view of this legal position Mr. Naimuddin submits that the interim stay order granted in this case is not maintainable in law. On facts, also, Mr. Naimuddin points out that this interim stay order is infructuous as possession of the land in question is with respondents 2 and 3. Mr. Muhammad Ibrahim Abbasi appearing on behalf of respondents 2 and 3 states that possession of these lands is with his clients from 5‑8‑63, that is to say, four months prior to the interim order passed in this matter. In view of these submissions, then, it seems to me that the interim order passed by me on 23‑12‑63 is not maintainable either on facts or in law and it is, therefore, set aside.
2. With regard to the main Revision Application No. 434/63 Mr. Nasir Shah Mir appearing today on behalf of Mr. Qutubuddin Ahmad is not fully prepared and hence requests for a short adjournment. Accordingly I adjourn this main revision appli cation to Monday next 4th May 1964 when it should be placed at No. 1 on the cause list of regular hearing matters for that day.
Costs will be determined when deciding the main revision application.
K.B.A. Order accordingly.
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