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Civil Miscellaneous Petition No. 83‑R of 1979 in Civil Appeal No. 100 of 1973, decided on 26th June 1979.

----S. 73 read with S. 11‑Faced with situation as to how in view of his previous application instant application upon same facts could be maintainable counsel for parties agreeing petitioner to redeposit in executing Court a certain sum to be withdrawn by respondents subject to condition of furnishing adequate security to protect peti tioner's interests in case of appeal being finally allowed‑Applica tion in view of agreement between parties dismissed.

Kh. Muhammad Farooq, Advocate and Ch: Akhtar Ali, Advocate‑on- Record for Petitioner.

Karim Mahi Bhatti, Advocate and Kh. Walt Muhammad, Advocate‑on- Record (absent) for Respondents Nos. 1 to 3.

Nemo for Respondent No. 4.

Date of hearing : 26th June 19 79.

.‑The brief and relevant facts of the case are that a three decrees were passed against late Wali Muhammad, the predecessor in‑interest of respondents 4 (i) to 4(xiii), in favour of respondents 1, 2 and 3. In the decree passed in favour of the petitioner, which was for Rs. 1.12.916‑15, it was mentioned that the Rehabilitation Department owed to late Wali Muhammad Rs. 91,638.94, and when the same was deposited in the Executing Court it was to be distributed amongst the three respondents/ decree holders in equal proportion. The record would show that the said three decrees passed against Wali Muhammad were put in execution, and the learned Senior Civil Judge, Sargodha consolidated all the three cases, and ‑when the Rehabilitation Department deposited in the Executing Court Rs. 80,424.94, which it claimed was the only amount due to late Wali Muhammad, the learned Judge ordered the rateable distribution of the same amongst all the decree‑holders. In implementation of the said order, Rs. 60,005.94 came to the share of the petitioner. But of this the respondents felt aggrieved and consequently went to the High Court in its revisional jurisdiction. A learned Judge of the High Court accepted the said revision application and consequently set aside the order of the learned Executing Court by his judgment, dated 22‑9‑1972.

Being aggrieved of the judgment of the High Court, the petitioner filed a petition for leave to appeal in this Court, which was allowed, vide order dated 2‑10‑1973, on the ground that section 73 of the Code of Civil Procedure, which was interpreted and construed by the High Court, required authoritative exposition. By the same order, however, the stay application filed by the petitioner was dismissed.

In this application the prayer made is to the same effect as was made in the previous application filed by the petitioner viz., that the order passed by the Executing Court, directing the petitioner to re‑deposit the sum of Rs. 60,005.94, be suspended, as the same was not only illegal but was bound to prejudice the petitioner. In this behalf when the attention of the learned counsel was invited to para. 11 of his previous application, he could not satisfy us as to how upon the same facts the present application was maintainable. Faced with this situation, the learned counsel for the parties, however, agreed that the petitioner would re‑deposit in the Executing Court the sum of Rs. 60,005.94, the same would then be withdrawn by the respondents subject to the condition that they would furnish to the satisfaction of the Executing Court adequate security (but not personal security) to protect the interest of the petitioner in case the appeal filed by him in this Court is finally allowed. In this view of the agreement between the parties, this application is dismissed, but under the circumstances the parties would bear their own costs.

Application dismissed.

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