P L D 1975 Lahore 403 (PLP)

According to law if the ex parte decree against the minors and infirm defendant was a nullity and not executable, then it was non est and no order for setting it aside was required. It would mean that the pre-emption suit filed by the plaintiffs-respondents was still undisposed of and it was the duty of the Court to try it in accordance with law. Ghulam Husain and others v. Ghauns Bakhsh and others 1968 S C M R 991 ref Iftikharul Haq Khan for Appellants. Iftikhar Ahmad Dar for Respondents. Date of hearing : 31st May 1974. This appeal is directed against the judgment dated 19-6-1964, passed by the Additional District Judge, Multan whereby the appeal against the order of the learned Administrative Civil Judge was accepted.

2. The facts of the case are that the plaintiffs-respondents filed a suit for possession on tae basis of pre-emption of 154 kanals 10 marlas of hind situated in Jalalpur Khakhi, Tehsil Shuja Abad, District Jhelum, against the appellants-defendants 1 to 6 and Karim Bakhsh, defendant No. 7, an idiot, and karim Bakhsh, Nabi Bakhsh and Khuda Bakhsh, defen dants 8 to 10, who were minors at that time. The last-mentioned four persons, who were suffering from legal disability, had 9/77 share in the joint land in question.

3. A decree for pre-emption of the whole land was passed by the learned trial Court against all the defendants, on account of the compromise effected by defendants Nos, 1 to 3 with the plaintiffs-respondents on 25-2-1960. It is admitted that ex parte proceedings were ordered against defendants Nos. 4 to 10. the pre-emption decree was however, passed in respect of the whole suit land on payment of Rs. 8,690-10-0 and ex parte decree against defendants 4 to 10.

4. The plaintiffs-respondents, in whose favour the decree was passed, filed an application thereafter, on 31-10-1960, for execution of the aforesaid decree. The defendants 7 to 10 submitted an application under section 47 of the C. P. C. objecting execution of the decree on the ground that the same was a nullity on account of their being under a legal disability and further that they had not been served upon. The learned executing Court upheld the objection and refused to execute the decree against the said defendants. The learned lower appellate Court, however, on appeal by the plaintiffs-respondents held that the decree was executable against the defendants, who were not suffering from any legal disability. It is non' denied that defendants 8 to 10 were minors and defendant No. 7 in the suit was also idiot. According to law they should have been sued through their guardian-ad-litem. Since this procedure was riot adopted, therefore its the eye of law they were never represented before the Court.

5. It has been argued that if the said defendants, who were suffering from legal disability, were party to the suit before the trial Court, then they were also not entitled to submit an application under section 47 of the C. P. C. Be that as it may, the fact, however, remains that the decree against; the minors and an insane person cannot be executed under the law unless they are duly represented before the Court. The executing Court can, in such circumstances, refuse to execute the decree irrespective of the E fact that remedy by way of regular civil suit is available to sushi defendants to get such decree declared null and void and not binding upon them. In the present case even the record of the learned trial, Court shows that the said defendants were minors and had not been duly represented. The objection in this behalf having been found correct the execution of the decree in question has been rightly refused.

6. It is significant to notice that it was a suit for pre-emption in respect of the whole suit land owned by the defendants, including those suffering from legal disabilities. It is well established principle of law that there can be no partial pre-emption except in case of necessity. In the present case no such necessity has been brought on record. If the defen dants suffering from legal disability have not been sued properly through their guardian-ad-litem, then it does not mean, that the share of the suite land held by them can be excluded from the operation of the decree. In that case it will be partial execution of the same and under the law it is not permissible. The plaintiffs-respondents cannot give up their claim, in respect of the land held by said defendants in order to avoid an litigation, as by doing so the suit will become defective. Reliance in this respect can be placed upon Ghulam and 3 others v. Khushi Muhammad and another (PLD1973SC444).

7. It has been argued by the learned counsel for the plaintiffs respondents, on the basis of Ghulam Hussain and others v. Ghaus Bakhsh and others (1968SCMR991) that if the decree passed in respect of the whole land is a nullity, as held by the learned executing Court, then the plaintiffs-respondents are entitled under the law to apply to the learned trial Court for proceeding with the pre-emption suit de novo. This has not been oppose by the learned counsel for the appellants. According to law if the ex part decree against the minors and infirm defendant was a nullity and not executable, then it was non est and no order for setting it aside was required. It would mean that the pre-emption suit filed by the plaintiffs respondents was still undisposed of and it was the duty of the Court to try it in accordance with law.

8. The result is that the appeal is accepted without any order as to costs and the judgment of the learned lower appellate Court is hereby set aside being without lawful authority and of no legal effect. The plaintiffs respondents are held entitled to apply to the learned trial Court for proceeding with the pre emption suit de novo, as discussed above. S. A. H. Appeal accepted.