NAZOO Versus HASSU KHAN

ORDER

1. MUHAMMAD AFZAL ZULLAH, J ,‑‑Leave to appeal has been sought by a plaintiff‑decree holder in a pre‑emption matter against the dismissal of his Civil Revision by the High Court, which had arisen out of a controversy regarding so‑called execution of the said t decree.

2. It seems that the petitioner's formal application for execution of decree was dismissed for default but according to some findings on record, he had succeeded out of Court, in getting the possession of the land. The formal execution having not taken place, both the sides the vendee‑judgment debtor and the plaintiff‑pre‑emptor/ decree‑holder claimed the land in dispute during consolidation proceedings. The petitioner in order to achieve success in those proceedings was compelled to file another suit for declaration with regard to his ownership of the land in dispute by virtue of the aforementioned decree. It was decreed in his favour. The respondents' appeal was accepted on ground of bar contained in section 47, C . P . C . Petitioner's Civil Revision having been dismissed, leave to appeal has now been sought.

3. After hearing the learned counsel, we feel that no doubt that the provisions contained in section 47, C.P.C. were relevant for examination. But they had to be considered together with the provisions contained in Order XXI, C.P.C. with regard to the execution of decrees, jointly with Order XX, R.14, C.P.C. regarding execution of pre‑emption decrees. It has also to be noticed that according to the findings, the petitioner was found in possession of land though according to the High Court long after the decree was passed in his favour. If so, it would further require examination; whether the petitioner having come into possession out of Court after the aforesaid decree for possession through pre‑emption had been passed in his favour, could not be allowed the relief claimed by him. The ground that his application for execution was dismissed for default also needs examination.

4. These questions and the others raised in this petition require examination. Leave to appeal accordingly is granted.

5. Security Rs.5,000.

6. Appeal shall be prepared on the present record with direction to the parties concerned to file all necessary additional documents.

7. M.I./N‑86/S Leave granted.