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Writ Petition No. 1369 of 1982, decided on 27th April, 1983.
‑‑‑S.47 and O.XXI, R.29‑‑Constitution of Pakistan (1973), Art.199‑ Decree Execution of‑‑Stay of execution‑‑Stay of execution of decree a discretionary matter‑‑Executing Court, held, was not bound to stay execution proceedings of decree on ground of pendency of suit between decree‑holder and judgment debtor with regard to sale in dispute before Collector‑‑Concurrent orders of Courts below for refusal to stay execution of decree, based on sound reasons, could not be said to have been passed without lawful authority.
Atta‑ur‑Rehman Khan for Petitioner.
Muhammad Akhtar Khan for Respondent No.3
Date of hearing: 27th April, 1983.
This is a petition under Article 9 of the Provisional Constitution Order, 1981, whereby, Aziz Ahmad petitioner wants this Court to declare the orders, dated 31‑3‑1982 and 17‑11‑1982 passed by learned Civil Judge and learned District Judge, Vehari, respectively, to be without lawful authority and of no legal effect.
2. The facts leading up to this petition in brief are that Zafar Ahmad Khan respondent No.3 filed a suit for pre‑emption before Civil Judge, 1st Class, Mailsi on the basis of his superior right being brother of the vendor. The petitioner contested the suit by raising preliminary objections and denying averments in the plaint. The trial Court framed as many as 5 issues:‑‑
(1) Whether Rs.70,000 was fixed in good faith or paid as sale price
(2) What was the market value of the suit property at the time of sale
(3) What is the effect of the pre‑emption suit pending before the Collector
(4) Is the description of the suit property incorrect
(5) Relief.
On issue No.1, the trial Court found that Rs.70,000 were fixed in good faith and actually paid. As for issue No.2, the trial Court observed that the same was not "called for", Issues Nos.3 and 4 were found against the defendant /petitioner. In view of these findings, the trial Court decreed the suit for Rs.70,000 on 18‑3‑1981. During the execution of this decree, Aziz Ahmad Khan filed objection petition under section 47, C.P.C. wherein he raised the objection that since a suit for possession through pre‑emption on the basis of superior right being a tenant is pending before the Collector with regard to the sale in dispute, therefore, the execution of the decree be stayed till the decision of the rival suit filed by the petitioner against respondent No.3. This application was, however, rejected on 31‑3‑1982. Feeling aggrieved, Aziz Ahmad Khan petitioner filed revision which was also dismissed on 17‑11‑1982. Hence this petition.
3. The learned counsel for the petitioner contends that under Order XXI, Rule 29, C.P.C. proceedings before the executing Court were liable to be stayed till the disposal of suit for possession through pre‑emption with regard to the same property pending adjudication before the Collector, Mailsi.
As against this, the learned counsel for the respondents has defended the impugned orders.
4. After hearing the learned counsel and going through the record I am not inclined to interfere with the impugned orders, and for that the relevant provisions of rule 29 of Order XI may be reproduced here with some advantage:
O.XXI, R.29.‑‑ Stay of execution pending suit between decree‑holder and judgment‑debtor.
"Where a suit is pending in any Court against the holder of a decree of such Court, on the part of the person against whom the decree was passed, the Court may, on such terms as to security or otherwise, as it thinks fit, stay execution of the decree until the pending suit has been decided".
The plain reading of this rule makes crystal clear that the stay' of the execution of a decree is a discretionary matter and that the execution Court was not bound under the law to stay the proceedings on the ground of the pendency of a suit before the Collector, Since both the Courts have applied their mind and have given reasons for the refusal to stay the execution of the decree, therefore, it cannot be said that the impugned orders have been passed without lawful authority.
5. For what has been stated above, there being no merits in this petition, the same is dismissed, leaving the parties to bear their own costs.
H.B.T. Writ refused.
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