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Civil Petition No: 139 of 1980, decided on 1st March, 1980;
(On appeal from the order dated 15th January 1980 of the Lahore High Court at Lahore in C. M. No. 176/C/80 in R. S. A. No. 248/77).
‑‑ O. XLI; r. 5‑Stay of execution proceedings‑Stay granted by High Court subject to petitioner's furnishing security for mesne profits‑Petitioner failing to comply with order of High Court for long time‑Petitioner, held, not entitled to exercise of discretion on a fresh application for same purpose.
Iftikhar Ahmed Din Advocate Supreme Court and S. Abid Nawaz, Advocate‑on‑Record for Petitioner.
Nemo for Respondents.
Date of hearing : 1st March, 1980.
‑Leave to appeal is sought from an order dated 15th January 1980 passed by a learned Single Judge of the Lahore High Court whereby prayer of the petitioner for stay of execution of decree during the pendency of an appeal in the High Court, was refused.
The High Court while admitting the appeal on 4th April 1977 had stayed the execution of decree subject to the petitioner's furnishing security for mesne profits within 15 days to the satisfaction of the trial Court. Admittedly, the petitioner failed to furnish the security. Accordingly, for this contravention of the order dated 4th April, 1977 the stay order was vacated on 7th November 1979. Therefore, the petitioner moved another application on 13th January 1980 for a fresh stay order. The same having been dismissed he has filed this petition for leave to appeal.
Admittedly, the security was not furnished by the petitioner till 7th November 1979 when the stay order was formally vacated. In fact the stay order passed by the High Court on 4th April, 1977 was effective and ensued for the benefit of the petitioner only if he had furnished the security. Therefore, even without formal recall of the stay order there was no such effective order in favour of the petitioner on 7th November, 1979. The explanation of the learned counsel that the petitioner was not aware of the condition that he was to furnish the security and further that although the petitioner presented the copy of the stay order before the trial Court, he was not informed by the said Court that security was to be furnished by the petitioner, is not enough to dilute the effect of the contravention of the condition under which the stay order was issued. The petitioner having failed to comply with the order of the High Court for such a long time, he was not entitled to exercise of discretion on filing a fresh application for the same purpose. There is no force in this petition and the same is dismissed.
Petition dismissed.
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