CHAIRMAN, CENTRALLY ADMINISTERED TRIBAL AREA (CATA) DEVELOPMENT CORPORATION, PESHAWAR Versus MALIKZADA MUHAMMAD AKBAR

1. MUHAMMAD HALEEM, J---- This order will dispose of Civil Petition for Special Leave to Appeal No. 113‑P of 1974 and Civil Appeal No. 6‑Pof 1976.

2. The petitioners in C. P. S. L. A. No. 113‑P of 1974 have assailed the order of learned Single Judge dated 7‑6‑1974 of the Peshawar High Court by which Civil Revision No. 373 of 1973 was allowed. Respondents Nos. 1 and 2 filed a suit for the recovery of Rs.67,751 against the petitioners and 3 others in the Court of the Senior Civil Judge, Peshawar. Summons of the suit were duly served on the petitioners and the petitioners engaged Mr. Ashraf Ali Khan, Advocate, who appeared in the trial Court until the case had become ripe for the recording of the evidence. On 19‑6‑1973, when evidence was to have been recorded, Mr. Ashraf Ali Khan appeared and stated that since be had been appointed as Admin1strator, Municipal Committee, Peshawar, he would not be able to appear and that the hearing be adjourned to enable: the petitioner to engage another counsel. The hearing was accordingly adjourned to 4th of September, 1973, but on that date neither the petitioners nor their counsel appeared and, therefore, the Court ordered that further proceedings be taken ex parte against the petitioners. The trial Court thereafter recorded the evidence of the witnesses produced by the respondents Nos. 1 and 2 and adjourned the case for arguments to 8th of September, 1973. On that date, Sahibzada Akhtar Munir appeared on behalf of the petitioners and submitted his Vakalatnama, and further requested for the hearing to be put off on the ground that he would apply for setting aside the ex pane order. The trial Court put off the hearing of the case to 12th of September, 1973. The petitioners' counsel on that date filed an application for setting aside the ex parte order dated 4‑9‑1973. The trial Court adjourned the hearing to enable the respondents Nos. 1 and 2 to file their reply which was submitted on 19‑9‑1973 and the hearing was put off on 19-10-1973. On that date the petitioners examined Amir Haider, Executive Engineer, Bara River Canal Division, Peshawar but no evidence was led in rebuttal. After hearing the counsel by order for the parties on 5‑11‑1973, the trial Court set aside the ex parte order dated 23-11‑1973 on payment of Rs. 40, as costs This amount was not accepted by the counsel for the respondents Nos. 1 and 2, and therefore, it was deposited in the Court. Being aggrieved by this order respondents Nos. I and 2 preferred a Revision in the Peshawar High Court which was allowed as aforesaid and the impugned order dated 23‑11‑1973 was set aside. The case went back to the file of the trial Court and after hearing the arguments, the trial Court decreed the suit by judgment dated 24‑7‑1974. The petitioners thereupon filed an appeal in the Peshawar High Court to assail that judgment. Respondents Nos. 1 and 2 have lodged a Caveat to oppose the grant of leave to the petitioners.

3. In spite of the petition for special leave to appeal having been filed, the petitioners did not care to apply for the stay of proceedings before th e trial Court with the result that with the passing of the decree the petition has become infructuous and liable to be dismissed. The learned counsel for the petitioner has urged that the petitioners will face difficulty in challeng ing the validity of the ex parte order in view of the order of the High Court dated 7‑6‑1974 which has assumed finality. But for this it is the petitioners alone who are to be blamed. However, we would leave to the appellate". Court to consider whether it would entertain afresh the challenge to the validity of the ex parte decree in the face of the earlier order of the High` Court, if raised before it but no such relief can be granted in this petition. With this observation the petition is dismissed.

4. Civil Appeal No. 6‑P of 1976 :

5. The appellants in Civil Appeal No. 6‑P of 1976 challenged the order dated 6‑11‑1974 of a Division Bench of the Peshawar High Court by which the execution proceedings were stayed on an application filed by 'respondent No. 1 alongwith the appeal against the judgment dated 24‑7‑1974 decreeing the suit.

6. After hearing the counsel for respondent No. I we decided to convert the petition into an appeal and dispose it of as such.

7. It being a money decree the execution of the decree could not have been stayed without ordering either for the deposit of the decretal amount Court or furnishing security for its payment. There is, therefore, a clear violation of the proviso to rule 8 of Order XLI of the Code of Civil Procedure.

8. We would accordingly, modify the order and direct that the stay of execution shall be subject to the respondents' depositing the decretal amount in Court in which case the appellant will be at liberty to withdraw the amount against a Bank Guarantee.

9. The appeal is allowed but with no order as to costs.

10. S. Q Appeal accepted.