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Civil Revision No.272 of 1987, decided on 23rd February, 1987.

---Ss.12(2),115,151 & O.XXXIX, Rr.l & 2--Grant of interim relief- Application for--Petitioner otherwise having no case on merits, failed to establish prima facie case, irreparable loss and balance of convenience in his favour--Petitioner admittedly neither gained nor lost anything if execution proceedings under decree passed in favour of respondents were stayed at his instance--Courts below, held, rightly dismissed stay application filed by petitioner alongwith h petition under S.12(2), C.P.C.

Mrs. Dino Manekji Chinoy and 8 others v. Muhammad Matin PLD 1983 S C 693 and Syed Zaigham Hussain and others v. Syed Kaisar Hussain and another 1979 S C M R 463 ref.

Ch. Abdur Rashid Cheema for Petitioners.

The petitioner made an application on 9-4-1986 under section 12(2), C.P.C. against the respondents in the Civil Court at Sialkot alleging that respondents Nos.l and 2 instituted a suit for possession of a house situated in Mohallah Pir Thekri, Sialkot through redemption against respondents Nos.3 to 17 in the Civil Court at Sialkot and by collusion got the suit decided on 23-12-1984 on the basis of a compromise. The petitioner was owner of the said house and in possession thereof as the property was a part of Darbar Imam Sahib and the petitioner was a Mujawar and Gaddi Nashin of the said Darbar. The judgment and decree, dated 23-12-1984 was procured through fraud, as such the same was liable to be set aside. The petitioner also filed alongwith the said application an application under section 151, C.P.C. praying that the execution proceedings under the said decree be stayed till the decision of the main petition. The respondents Nos.l and 2 decree-holders denied the averments by the petitioners and maintained that the petition had been filed in collusion with the judgment-debtors.

2. The learned Civil Judge observed that there was nothing on the record to establish a prima facie case in favour of the petitioner except his pleading nor the petitioner had explained that what sort of irreparable loss he was to suffer if the execution proceedings were not stayed. The balance of convenience lay in favour of the respondents-decree-holders who according to him must not have suffered just because a petition under section 12(2) C.P.C. had been filed against them wherein the petitioner had failed to establish a prima facie case. He dismissed the application for the stay of the execution proceedings vide his order, dated 21-6-1986.

3. Being aggrieved from the said order the petitioner filed an appeal which came to be decided by the learned Additional District Judge, Sialkot. Before him a preliminary objection was raised that the appeal was filed under section 43 rule 1 C.P.C. The appellant had not appended with the appeal an affidavit that he had given notice of the appeal to the respondents or their counsel accompanied by a copy of the memorandum of appeal. The learned Additional District Judge observed that there were 17 respondents, the photostat copy of the receipt as to registered post showed that the registered letter was addressed to Muhammad Siddique respondent No.1 only. The photo-stat copy of the notice was silent as to whom that was referred to. The notice also did not show as to whether the legal requirements of Order 43 rule 3 had been complied with. According to him the decision in Mrs. Dino Manekji Chinoy and 8 others v. Muhammad Matan P L D 1983 S C 693 was attracted and as the affidavits etc. were not submitted, therefore, the appeal was not entertain able. He dismissed the appeal vide his order, dated 7-2-1987.

4. In this revision having been brought against the said order of the learned Additional District Judge the learned counsel for the petitioner has contended that the notice sent to respondent No.1 through registered post was a sufficient notice of appeal as respondent No.1 was the real brother of respondent No.2 who had in the beginning filed the suit for the redemption of the property and as the property had been redeemed by virtue of the consent decree, therefore, all the other respondents were in the position of pro forma respondents. The learned counsel for the petitioner has relied upon Syed Zaigham Hussain and others v. Syed Kaisar Hussain and another 1979 SCMR 463. In this case it was observed that a notice under section 30 of the Displaced Persons (Compensation and Rehabilitation) Act 1958 had been sent to one S. Syed Hussain who was in occupation of the residential property as such that was not necessary to send separate notices to the petitioners who were his sons and living as one family.

5. The next contention of the learned counsel is that the learned Civil Judge had wrongly refused the interim relief as prayed for.

Even if the service of notice as to the filing of appeal on respondent No.1 is regarded as sufficient for the purpose of Order 43 rule 3, C.P.C., there is no idea to admit this revision ultimately for the learned Additional District Judge to decide the appeal on merits as the petitioner has no case on merits. The petitioner neither gains nor loses anything, if the execution proceedings are stayed at his instance then in that event the property remains with the heirs of Mst. Ghulam Fatima, the original mortgagee, if the same are not stayed, then the property comes to respondents Nos.l and 2 who have redeemed the mortgage. The learned Civil Judge has rightly dismissed the application for stay. This Civil Revision is dismissed in limine, being without any substance.

H.B.T./T-11/L Revision Petition dismissed.

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