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-- S. 42 & O. XXI, r. 28-Decree for re-instatement in service and payment of emoluments - Execution of decree - Suspension of operation of decree-Judgment-debtors' contention at revisional stage regarding decree in question being not executable since no employee could be thrust upon Government contrary to stand taken at time of filing regular second appeal and judgment-debtors in such appeal praying for suspension of operation of decree thereby impliedly conceding decree to be executable-Whether or not reliefs allowed by trial Court to respondent making order for payment of emoluments and re-instatement in service could also be allowed to respondent besides declaring respondent's dismissal from service as illegal, held, a matter not within province of executing Court to "determine or express opinion contrary to one delivered by trial Court-Refusal by second appellate Court to issue stay order in matter to executing Court-Superior Courts alone could make suitable pronouncement in such behalf but judgment-debtors could not be helped in proceedings as instituted

Syed Ali Shah for Petitioner.

The facts giving rise to this civil revision are that the respondent, Abdul Hayee was a Charge-man in the Pakistan Railways when he was dismissed from service. He filed a civil suit against Pakistan and others challenging the order of his dismissal. The. suit met with success with the result that a decree to the following, effect was passed by the Senior Civil Judge who heard the suit :

"It is ordered that the plaintiff is hereby granted a decree against the defendants to the effect that the impugned order of the plaintiff's removal from service dated 5-5-1970 is illegal, ultra vires, without jurisdiction and that the plaintiff continues to be in service of the defendants. The plaintiff is entitled to the emoluments and other benefits for the period he was kept out of service by the defendants. The defendants are hereby ordered to re-instate the plaintiff forthwith. The plaintiff is also awarded costs of the suit."

2. Feeling aggrieved by the judgment and decree of the trial Court, the defendants went in appeal before an Additional District Judge but without success. Therefore, they filed a regular second appeal before this Court which was admitted to a regular hearing by my learned brother M: E. Rana, J. Alongwith their regular second appeal, the defendants moved a miscellaneous petition for suspending the operation of the impugned decree but his Lordship declined to do so.

3. As there was no stay order against the execution of the decree passed by the trial Court the plaintiff-decree-holder filed an application for execution of the decree. Thereupon, the defendants‑judgment‑debtors made an application objecting to the execution of the decree on the ground that it was not executable. The objection; however, did not find favour with the executing Court. The judgment‑debtors then went in appeal before an' Additional District Judge which also failed. Hence this civil revision.

4. Learned counsel for the appellants judgment‑debtors contended that the decree in question was not executable inasmuch as no employee could be thrust on the Government. The position now taken by the judgment‑debtors is contrary to the one taken by them at the time of the filing of the regular second appeal when they prayed for suspension of the operation of the decree. By making prayer, by implication, they conceded that the decree was execut able. While passing the impugned decree, beside declaring the respondent's dismissal from service as illegal, ultra vires and without jurisdiction the learned trial Court allowed him two other reliefs relating to the payment of emolur‑ A ments and re‑instatement in the service. Whether or not these two reliefs could also be allowed to him is a matter on which the executing Court can not express an opinion contrary to the one delivered by the trial Court. 1t is now only upto a superior Court to make suitable pronouncement in this behalf. If the appellant could not sezure a stay order in the regular second appeal the executing Court or, for that matter; I, cannot help the appellant. In this view of the matter, the impugned order does not call for any inter ference.

5. The Civil revision, therefore, fails and is dismissed in limine.

s. A. H. Petition dismissed.

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