Haji BANARIS KHAN And Others vs CENTRAL Governmentthrough Secretary, Defence And Military Estate Officer And Another
This petition for leave to appeal under Article 185(3) of the Constitution of the Islamic Republic of Pakistan challenges an order of the Peshawar High Court dated 24-2-1986, whereby the High Court confirmed an interim stay of execution granted in favor of the Central Government against a land acquisition compensation decree. The core legal question concerned the propriety of staying the execution of a money decree for enhanced land compensation against the Government pending appeal. The Supreme Court held that the reasons given by the High Court for staying execution were sound, noting that substantial loss might be caused to the Government, that no difficulty would arise in recovering the amount from the Government if the appeal failed, and that under Order XXVII Rule 8-A of the Code of Civil Procedure 1908, security could not be required from the Government. The petition was accordingly dismissed.
- Whether execution of a decree for enhanced land compensation can be stayed against the Government pending appeal?
- Is the Government required to furnish security under Order XLI Rules 5 and 6 of the Code of Civil Procedure 1908 when seeking a stay of execution?
- Does an objection petition under section 18 of the Land Acquisition Act accompanied by an application under Order 1 Rule 8 of the Code of Civil Procedure 1908 constitute a valid reference to the designated court?
- Article 185(3), Constitution of the Islamic Republic of Pakistan 1973
- Section 18, Land Acquisition Act 1894
- Order I Rule 8, Code of Civil Procedure 1908
- Order XLI Rule 5, Code of Civil Procedure 1908
- Order XLI Rule 6, Code of Civil Procedure 1908
- Order XXVII Rule 8-A, Code of Civil Procedure 1908
ORDER
ALI HUSSAIN QAZILBASH, J.--Haji Banaris and others seek leave to appeal under Article 185(3) of the Constitution of the Islamic Republic of Pakistan against the order, dated 24-2-1986 of the Circuit Bench of the Peshawar High Court at Abbottabad in Civil Miscellaneous No. 18 of 1986 in R.F.A. No. 3 of 1986.
2. The facts, in brief, are that the Land Acquisition Collector, Abbottabad, acquired land measuring 1,242 Kanals 9 Marlas situate in Village Mirpur belonging to the petitioners and their co-villagers as per Award No. 5, dated 3-10-1982. This was objected to under section 18 of the Land Acquisition Act on behalf of the petitioners as well as other co-owners of the village. The objection petition accompanied an application under Order 1, Rule 8, C.P.C. A reference was accordingly made to the Senior Civil Judge, Abbottabad as a designated Court. The Senior Civil Judge after giving notices to all the parties proceeded with the adjudication of the case and after recording necessary evidence enhanced the compensation of the land to the tune of rupees one lac per Kanal vide his judgment, dated 19-10-1985. Respondent No. 1 feeling aggrieved of the enhancement filed an appeal bearing No. R.F.A. 3 of 1986 in the High Court and along with the appeal an application was also filed for the stay of the execution. An interim stay was granted on 20-1-1986. The petitioners also filed an application for the vacation of the stay on 25-1-1986. Both the matters were heard by the learned Judges of the High Court and, vide order, dated 24-2-1986 confirmed the stay in favour of the respondent.
3. We have heard Mr. M. Sardar Khan for the petitioners. While granting stay, the learned Judges of the High Court observed that:- "As far the recover), of the excess amount is concerned we would stay the execution proceedings for a substantial loss is likely to cause to the judgment-debtor/appellant if the execution of the impugned decree is not stayed. Further the judgment-- debtor/appellant is a Government and there is likely to be. Faced no difficulty in the recovery of the amount from it in case of the failure of the appeal and the maintenance of the impugned decree. Further no such security. As mentioned in Rules 5 and 6 of the Order XLI shall be required from the Government for which a reference may be made to Order XXVII, Rule 8-A, C.P.C."
4. We think the reasons given above are sound and the learned counsel for the petitioners was not able to make out any case in favour of his clients. This petition is thus dismissed.