UMAR DIN Versus KHAN

ORDER

1. JAVID IQBAL J.‑‑ This petition for leave to appeal is directed against the judgment of the Lahore High Court. Lahore, dated 7 February, 1982 whereby the Execution Second Appeal of the petitioner was dismissed.

2. Briefly the facts are that the petitioner filed a suit to pre‑empt the sale of the disputed land. It was sold by one Mst. Iqbal Begum to respondents Nos. 7 to 13. While the suit was pending, but within one year of the sale, out of the suit land the aforesaid respondents sold a portion thereof to respondent No. 1. On the same day the remaining land was alienated by them by way of sale in favour of predecessor‑in‑interest (namely Wali Muhammad) of respondents Nos. 2 to 6. It may be pointed out at this stage that the subsequent vendees were not impleaded as parties in the suit by the petitioner. The trial Court decreed the suit in favour of the petitioner. However, the subsequent vendees appeared on the scene at the execution stage by filing an objection petition. They inter alia asserted that since they had purchased the land in question in exercise of their superior right of pre‑emption as compared to the petitioner within the period of limitation and that, furthermore since they were not arrayed as defendants by the petitioner in his, suit, they were not bound by the decree passed therein and that by virtue of t he second sale the decree stood discharged. The objection petition of the subsequent' vendees was allowed by the executing Court and the appeal of the petitioner before the Additional District Judge failed. Thereafter, his execution second appeal was also dismissed by learned Single Judge of the Lahore High Court, Lahore as stated above. Hence the present petition.

3. Learned counsel for the petitioner argued before us that the subsequent sales took place during the pendency of the suit and that they were violative of the rule of lis pendens. It was also submitted that since the land was transferred to the second vendees during the pendency of the petitioner's suit under Order XXI, Rule 102, C.P.C. the objection petition of the subsequent vendees was not maintainable. We have heard learned counsel at some length. The High Court while relying on P L D 1971 Lah. 171 (Mst. Fateh Bibi v. Ahmad Khan etc.) had arrived at the conclusion that when a sale was made by the vendor to a person having a right equal with the pre‑emptor or a right superior to him, within one year of the first sale, it was not hit by the rule of lis pendens. The argument of learned counsel based on Order XXI, Rule 102, C.P.C. was also attended to by the High Court and rightly found without any merit. While the suit of the petitioner was pending, within the period of limitation, the second sale was made to the subsequent vendees who should have been impleaded as defendants by the petitioner.

4. Since this is the position we do not find any substance in this petition which is accordingly dismissed.

5. M.Y.H./U‑14/S Petition dismissed.