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Civil Petition for Special Leave to Appeal No. 114 of 1973, decided on 8th May 1974:

(On appeal from the judgment and order of the Lahore High Court, dated the 5th November 1973, in Civil Miscellaneous No. 2316/C of 1973, in R. S. A No. 181 of 1973).

Civil Procedure Code (V of 1908)‑

--‑‑O. XLI, r. 5‑Stay order‑Decision in P L D 1949 Lah. 100 holding that stay order operates from time such order is made and not from time it is communicated to executing Court‑View expressed in decision, held, in accord with law and needs no re‑examination.

Karam Ali and others v. Raja and others P L D 1949 Lab. 100 ref.

Ch. Muhammad Siddiq, Advocate Supreme Court (Pervaiz Akhtar. Advocate with him) instructed by Sh. Salahuddin, Advocate‑on‑Record for Petitioners.

Nemo for Respondents.

Date of hearing : 8th May 1974.

WAHEEDUDDIN AHMAD, J.‑‑

The dispute between the parties is in respect of agricultural land measuring 605 kanals situated in Mauza Kiri Alimardan, Tehsil and District Muzaffargarh, owned by one Abdul Rehman. He sold this land by mutation No. 813 to the respondent, Mst. Nasim Akhtar ostensibly for Rs. 55,000. The petitioners filed a suit for possession of land by pre‑emption in the Court of the Administrative Civil Judge, Muzaffargarh. The trial Court decree the suit on payment of Rs.45000 Dissatisfied, the respondent went up in appeal against the decree. The learned District Judge, Muzaffargarh, on the 24th May 1972, partly accepted the appeal and decreed the suit for possession of the land in favour of the petitioners against the defendant/respondent on payment of Rs. 51, 700. Thereafter, the respondent filed R. S. A. No. 181 of 19th in the Lahore High Court on the 8th May 1973. This appeal was put on motion on the 9ih May 1973, before a learned Single Judge of the High Court. On this, he called for the record and also ordered that in the meantime, the execution of decree should be stayed. It, however, appears that on the 8th May 1973, the petitioners obtained a warrant from the executing Court for the possession of the land in dispute through tire Collector. In pursuance of this warrant, the petitioner obtained constructive possession of the property in dispute on the 9th May 1973. The respondent thereupon, filed an application for restoration of possession of the land to her. She also filed a separate petition under section 3 of the Contempt of Court ,"Fact and Article 206 of the Constitution of Islamic Republic of Pakistan. On the application for restoration of possession of the land, the High Court, by order dated the 5th November 1973, directed that the possession of the land should be restored to the respondent and that the status quo as on 9th May 1973, may be maintained. The petitioners seek permission to file appeal against the said order.

It would appear that the High Court while accepting the application for restoration of possession of the land in dispute, has relied on Karam Ali and others v. Raja and others (P L D 1949 Lah. 100), a Full Bench decision of the Lahore High, Court. In that case, after examining the case‑law on the subject, it was held that both on principle and authority of Order XLI, rule 5, the stay order operates from the time that such order is made and not from the time it is communicated to the executing Court.

Ch. Muhammad Siddiq, learned counsel for the petitioners, has con tended that contrary view expressed by the Calcutta High Court, Dacca High Court, and Allahabad High Court should be taken into consideration and the decision of the Lahore High Court requires reconsideration. We have considered the contention of the learned counsel and in our opinion, the view expressed by the Lahore High Court is in accordance with law. It is not necessary to re‑examine the question already decided by the Lahore ''

High Court. The petition is dismissed.

Petition dismissed.

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