FAZAL KARIM vs RAWAL MALIK and anothers
This petition arises out of proceedings under Section 144 of the Code of Civil Procedure 1908, initiated by the respondents for restitution of possession of land after the pre-emption decree initially passed in favour of the petitioner was set aside by the appellate court and the case remanded for retrial. The core legal question was whether restitution of possession was rightly ordered under Section 144, Code of Civil Procedure 1908 when the underlying trial court decree was reversed on appeal. The Supreme Court of Pakistan held that the restitution was properly allowed as a natural consequence of the setting aside of the decree, and no illegality or infirmity was found in the concurrent orders of the lower courts and the High Court. The key principle laid down is that upon the reversal or setting aside of a decree, the court of first instance is bound to place the parties in the position they would have occupied but for the decree or such part thereof as has been varied or reversed, thereby mandating restitution.
- Whether restitution of possession can be ordered under Section 144 of the Code of Civil Procedure 1908 when a pre-emption decree is set aside on appeal?
- Is a party who executed a decree and obtained possession during the pendency of an appeal bound to restore possession upon the reversal of that decree?
- Section 144, Code of Civil Procedure 1908
1. ' SAIDUZZAMAN SIDDIQUI, J.---The above petition arises out of the proceedings under section 144, C.P.C. Filed by respondents as a result of setting aside of the decree passed in a pre-emption suit against them.
2. ' The relevant facts of the case are that the petitioner instituted a suit to pre-empt the sale in favour of respondents before the Civil Judge which^ was decreed on 18-6-1984. However, on respondents appeal, the judgment and decree of the trial Court was set aside on 25-1-1987 and the case was remanded for retrial. During the period when the appeal was pending before the first appellate Court the petitioner got the decree executed and obtained the possession of the pre- empted land. After the decree was set aside by the first appellate Court and case was remanded, the respondents filed application under section 144, C.P.C. For restitution of the possession of the land which was subject matter of the suit. This application was granted on 28-9-1991 and the appeal against the order was also dismissed by the District Judge, Sahiwal on 11-5-1994. The petitioner challenged the order of District Judge, Sahiwal, unsuccessfully in the Revision Application which was dismissed by the learned Judge of Lahore High Court through the impugned judgment against which leave to appeal is sought by the petitioner.
3. From the' facts stated above, it is clear that the restitution has been allowed by the Trial Court under section 144, C.P.C. As a result of setting aside of the decree by the first appellate Court. There appears to be no, illegality or infirmity in the order passed by the High Court refusing to interfere with the order whereby possession has been ordered to be restored to respondents as a result of setting aside of the decree passed in favour of petitioner. No case for interference with the judgment of the High Court is made out. The petition is, accordingly, dismissed and leave is refused.
Cited by 2 cases
- ABDULLAH and 8 others vs Mst. SAIDAN BIBI and 12 others 2009 CLC 1136
- Abdullah and 8 others vs Mst. Saidan Bibi and 12 others 2010 C.L.R. 244