MUHAMMAD ISMAIL vs Raja MUHAMMAD YOUNIS
This civil revision petition arises out of execution proceedings where the respondent alleged disobedience of an injunction decree dated 4-2-1966. The trial court found the decree had been disobeyed and passed an order under Order XXI, Rule 32 of the Code of Civil Procedure 1908. The appellate court dismissed the petitioner's appeal, holding that an appeal against an order under Order XXI, Rule 32 is not competent. The Lahore High Court examined the record and held that an order passed in execution proceedings under Order XXI, Rule 32, C.P.C. relating to the execution of an injunction decree is squarely covered by Section 47 of the Code of Civil Procedure 1908, as it determines a question between the parties relating to the execution, discharge, or satisfaction of the decree. Consequently, such an order is appealable under Section 104(1)(ff) of the Code of Civil Procedure 1908. The High Court set aside the impugned appellate order, ruled that the appeal was competent, and directed the District Judge to decide the appeal on merits.
- Whether an order passed under Order XXI, Rule 32 of the Code of Civil Procedure 1908 is appealable?
- Does an order regarding the execution of an injunction decree fall within the scope of Section 47 of the Code of Civil Procedure 1908?
- Is an appeal maintainable under Section 104(1)(ff) of the Code of Civil Procedure 1908 against an order passed in execution proceedings under Order XXI, Rule 32?
- Order XXI Rule 32, Code of Civil Procedure 1908
- Section 47, Code of Civil Procedure 1908
- Section 104(1)(ff), Code of Civil Procedure 1908
Alleging disobedience of a decree for an injunction passed on 4-2-1966, the respondent filed an application under Order XXI, rule 32, C.P.C. The application was resisted by the petitioner stating that he has not disobeyed the decree. Issues were framed. The evidence of the parties was recorded. The learned trial Court found that decree has been disobeyed and proceeded to pass orders accordingly on 25-1-1994. Against this order an appeal was filed. This appeal was taken up by a learned ADJ, Rawalpindi, who proceeded to dismiss the appeal holding that an appeal against an order made under Order XXI, rule 32, C.P.C. Is not competent.
2. Learned counsel for the petitioner contends that the learned Additional District Judge has refused to exercise the jurisdiction vested in him while passing the impugned order. Learned counsel for the respondent on the other hand refers to a judgment of this Court in the case of Muhammad and 3 others v. Allah Bakhsh and others 1998 CLC 757 to urge that the appeal has been rightly held to be not competent.
3. I have gone through the records, with the assistance of the learned counsel for the parties. The mode of execution of a decree, inter alia, for an injunction has been prescribed in Order XXI rule 32, C.P.C. The respondent by all means had filed an application for the execution of the decree for injunction in the manner prescribed. The order was, therefore, passed in relation to execution of the said decree. This order is squarely, covered by section 47, C.P.C. Being a lies between the parties to the suit in which the decree was passed. This being so, the order was appealable under section 104(1)(ff), C.P.C. So far as the said judgment is concerned, it dealt with an order urged to be covered by section 104(1)(h), C.P.C. The learned Additional District Judge has, therefore, refused to exercise the jurisdiction vested in him of hearing and deciding the appeal filed by the petitioner.
This civil revision is allowed. The result would be that the appeal filed by the petitioner shall be deemed to be pending before the learned District Judge Rawalpindi, who shall requisition records, summon the parties and hear and decide the said first appeal in accordance with law. No orders as to cost.
4. A copy of this order immediately be remitted to the learned District Judge, Rawalpindi.
Cited by 5 cases
- MUHAMMAD SAEEDULLAH Versus JAMIA MASJID MADNI 2017 YLR 2078
- Muhammad Saeedullah vs Jamia Masjid Madni 2017 IHC
- M/s. LALA ZAR TEXTILE MILLS, etc vs MUHAMMAD YASAR HAYAT, etc. 2013 PLJ Lahore 556
- M/s. Lala Zar Textile Mills,. etc. vs Muhammad Yasar Hayat, etc. 2013 PLJ Lahore 556, 2013 C.L.R. 1019
- Messrs LALA ZAR TEXTILE MILLS and others vs MUHAMMAD YASAR HAYAT and others 2014 MLD 820