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Civil Petition for Special Leave to Appeal No. 253 of 1968, decided on 26th June 1968.
(On appeal from the judgment and order of the High Court of West Pakistan, Karachi Bench, Karachi, dated the 14th May 1968, in Letters Patent Appeal No. 77 of 1968).
O. XXI, r. 10 & S. 151 Execution of decree‑Injunction restraining applicant from executing decree‑Court on default in appearance of decree. holder not justified in dismissing execution case‑Application under S. 151, for restoration of dismissed execution case, competent.
Mahmud Ali Qasuri, Senior Advocate Supreme Court (Rafiq Ahmad Sheikh, Advocate Supreme Court with him) instructed by Fazal‑i‑Hussain, Attorney for Petitioner.
Nemo for Respondent.
Date of hearing : 26th June 1968.
‑This petition for leave to appeal from an order of a Division Bench of the High Court of West Pakistan at Karachi arises in the following circumstances :‑
The respondent filed a suit (No. 74/51) against the petitioner for a sum of Rs. 81,000 in the Court of the Senior Civil Judge, Hyderabad and obtained a decree on the 12th March 1955. The appeal filed by the petitioner against the decree was dismissed by the High Court on the 6th March 1960. A number of applications were filed for the execution of the decree. The one with which we are concerned was filed on the 6th July 1961. In this execution case the respondent prayed that the decretal dues should be realised from the assets of the Electric Ginning Factory, Tando Ghulam Ali property of the firm J/D., including the buildings, machinery tools, spare parts, stocks of cotton seeds with all rights and apartments by attachment and sale, by the attachment of the four Oil Expellers with the Diesel Engine of other machinery of the Oil Mills, situated within the factory at No. 2, and sale under Order XXI, rule 5, C. P. C. The respon dent also prayed for the appointment of a Receiver to collect and receive all the earnings of the two factories.
During the pendency of the execution proceedings one Muhammad Farooq filed a suit and obtained an interim injunc tion restraining the respondent from getting the Sind Electric Ginning Factory sold in execution of the decree in Suit No. 74 of 1951 of the First Class Civil Court, Hyderabad. On the 28th February 1962, when the execution case came up for hearing it was dismissed as the decree‑holder was absent. It appears that in the execution case itself an order was passed on the 13th of December 1961, to the following effect :‑
"Interim stay in respect of auction to issue in view of the injunction order of the Karachi Court with notice, costs. Hearing 10‑1‑62. "
The respondent after the dismissal of his execution case on the 28th February 1962, filed a fresh application on the 26th April 1962, seeking restoration on the file of the previous execu tion application. Later on an application under section 151, C. P. C. was filed for the restoration of the dismissed execution case. This application was allowed by the Senior Civil Judge, Hyderabad and the petitioner did not. succeed in the appeal filed in the High Court to get the same reversed. The order was affirmed by a learned Single Judge of the High Court and the Letters Patent Appeal filed was dismissed in limine.
Mr. Mahmud Ali Qasuri has argued that the dismissal of the execution case was an appealable order and therefore the same could not be vacated on an application under section 151, C. P. C. The facts of this case clearly show that the Court was not justified in dismissing the execution case of the respondent when there was an injunction restraining him from executing the decree and this order of injunction admittedly continued right up to the 21st May 1967. In the execution case itself there was an order staying execution which was never vacated. In these circumstances we feel that the Courts below have rightly held that section 151, C. P. C. was applicable.
The petition is dismissed.
Leave refused.
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