1989 PLP 377 (CLC)

M. Jhamat Jethanand for Respondents. Date of hearing: 8th May, 1988. This revision is directed against the orders dated 3‑9‑1978 and 30‑11‑1981 passed by the learned Ist Senior Civil Judge, Hyderabad and the learned Ist Additional District Judge, Hyderabad in Execution Application No.24 of 1978 (Suit No.120 of 1972) and Misc. Civil Appeal No.62 of 1978 respectively.

2. The brief facts leading to the filing of the above revision are that the respondent filed aforesaid Suit No.120 of 1972 for declaration that they had got the right for water course of the lands shown in Schedule A to the memo. from the existing source of water supply as sanctioned by defendant No.l by Secretary, Irrigation s Order dated 11th April, 1972 and for permanent injunction against the defendant from suspending/stopping or, dis‑connecting the above supply of water. It seems that the above suit was decreed ex parte on 20‑2‑1975. After that the respondent filed aforesaid Execution Application No.24 of 1978 as the supply of water was discontinued on 1‑5‑1978. The above execution application was resisted by the present applicant inasmuch as objections dated 10‑8‑1978 were filed which, inter alia, included the fact that under M.L.O. 62 issued by the Martial Law Administrator Zone‑ C direct let outs sanctioned during the period from 1‑7‑1972 to 4‑7‑1977 were cancelled. However, the learned Senior Civil Judge by his above order dated 3‑9‑1978 dismissed the above objections and granted the execution application. Against the above order the present applicant filed aforesaid Misc. Civil Appeal No.62 of 1978. It seems that during the pendency of the above appeal an amendment in M.L.O. 62 was issued on 23‑9‑1978, whereby the definition of the words orders of Authority used in the original M.L.O. 62 were explained and extended by including order or decree of any Court passed between Ist January, 1972 to 4th July, 1977 both gays inclusive. The above change in the law was brought to the notice of the learned Additional District Judge, who instead of deciding the same observed that it would be open to the applicants to move the Executing Court to decide the above question and dismissed the above appeal after making the above observations. The applicants being aggrieved by the above two orders, have filed the present revision.

3. I have heard the learned counsel for the parties Mr. Niaz Ahmad Khan and Mr. Jhamat Jethanand. It may be advantageous to. reproduce MLO‑62 as was originally issued and the subsequent amendment /clarification, which read as follow:‑ Original : Notwithstanding anything contained in any law, rule, order of any authority or agreement, all direct out‑lets given through feeders main canals and Branch canals and all irrigation changes made in respect of such direct out‑lets during the period from Ist January, 1972 to 4th July, 1977, are hereby cancelled and shall cease to function from 30th April, 1978. Clarification: In exercise of powers conferred under MLO‑10 and all other powers enabling in this behalf issued by the Chief A Martial Law Administrator, the Martial Law Administrator! Zone C is hereby pleased to clarify that the words order of any authority occurring in the clause (gal MLO‑62 issued by the Martial Law Administrator Zone. C on 16th April, 1978 shall be deemed to include the order or decree of any Court passed between Ist January, [1972 to 4th July, 1977 both days inclusive.

4. In view of the above amendment, it is evident that the above ex parte judgment/decree which was passed on 20‑2‑1975 i.e. within the period mentioned in the above amendment could not have been executed and the learned Additional District Judge should have set aside the order of the learned Executing Court. However, it has been further contended by Mr. Jhamat Jethanand that the above MLO‑62 has been repealed and the effect of the above repeal is that the above decree stands revived and has become executable.

5. In my view, this question cannot be agitated in the present execution application as the respondent will have to file fresh execution application on the basis of the above averments. The present revision B is allowed and the two orders are set aside subject to the right of the respondent to file fresh execution application in case it is competent in law on the above point urged. The revision stands disposed of in the above terms with no orders as to costs. M . Y . H . /P‑801 K Petition allowed.