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Civil Revision No. 934 of 1978, decided on 30th January, 1980.

--- S. 144 read with O. XLI, r. 5-Restitution of possession Pre-emptor--decree- depositing pre-emption money, applying for execution of decree, arid getting possession of land-Appeal having been filed, first Appellate Court on same day ordering suspension of operation of impugned judgment and decree-Appellants having not taken possession of disputed land on same day when stay order issued respondents making application to first Appellate Court for restoration of possession and Court directing possession to be restored to such respondent---Held : First Appellate Court before making order for restoration of possession ought to have decided whether delivery of possession to petitioners preceded or. followed making of stay order by him on same day-Such course having not been adopted impugned order suffered from a material irregularity-Case remanded to first resolve controversy and. then make fresh order in light of such resolution.

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

Muhammad Afzal Watoo for Petitioners.

Iqbal Ahmad Malik for Respondent No. 1.

Nemo for Respondent No. 2.

Date of hearing : 30th January, 1980.

This civil revision relates to a pre-emption suit brought by the petitioners, Ali Muhammad and two others; against the rest andeots, Maulvi Sultan Ahmed and another. The suit was decreed-on 5th June, 1978 on payment of Rs. 17,000, which amount was deposited by the petitioners within the time any the trial Court. -- The petitioners then filed an application for execution of the decree, and in execution thereof they got possession of the disputed land on 15th June, 1978. On the same day, an order had been passed by an Additional District Judge, in an appeal filed by the .first. respondent against the judgment and decree of the trial Court, suspending the operation of the impugned judgment and decree. Since the. appellants had taken possession of the disputed ladd on the same day when the said stay order was issued, the first respondent made an application to the learned Appellant Court for restoration of the possession. On this, vide his order dated 15th July, 1978, the learned Additional District Judge directed that the possession of the disputed land he restored to the said respondent. Feeling aggrieved by that order, the petitioners have come up in revision to this Court.

2. Learned counsel for the petitioners contended that before ordering restitution of the possession, the learned Additional District Judge ought to have satisfied himself that on 15th June, 1978; the possession was delivered to the petitioners after the issuance of the stay order by him and since this was not done by him before making the impugned order, it was not sustainable. In this connection he drew my attention to Karam Ali and others v. Raja and others (P L D 1949 Lah. 100).

3. On the contrary, learned counsel for the respondent maintained that it was after becoming aware of the stay order granted by the learned Appellate Court that the petitioners had prevailed upon the Patwari concerned to enter fictitious report in regard to the delivery of possession and, therefore, they were liable to surrender possession as directed by the learned appellate Court. He did not cite any authority to support his contention.

4. 1 have carefully gone through the order under revision and find that before making the same the learned Appellate Court did not find it as a fact that, in point of time, the possession of the disputed land had been delivered to the petitioners on 15th June, 1978, in execution of the decree in their favour, after he had made order on the said day suspending the operation of that decree. According to the observations made in case of Karam Ali and others the learned Additional District Judge ought to have, before making the order under revision, decided the question as to whether the delivery of possession of the disputed land to the petitioners on 15th June, 1978 had proceeded or followed the making of stay order by him on the same day but as it was not done by him, the said order suffers from a material irregularity.

5. I, therefore, accept the revision petition, set aside the order, dated the 15th July, 1978, assailed herein, and remand the case to the learned Additional District Judge with a direction that he shall first resolve controversy as to whether the petitioners had obtained possession before or after the grant of the stay order by him and then make a fresh order on the respon dent's application for restoration of possession, in accordance with law. There shall be no order as to costs.

6. In view of the peculiar circumstances of this case I also direct that the appeal shall be decided by the learned Additional District Judge by the end of March, 1980. The parties shall appear before him on 19th February, 1980.

S. A. H. Petition accepted,

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