P L D 2011 Lahore 497 (PLP)

MAMOON RASHID SHEIKH, J.

This petition calls into question the order dated 12-4-2011 passed by the learned Civil Judge/Executing Court, Rahim Yar Khan and the order dated 18-4-2011 passed by the learned Additional District Judge, Rahim Yar Khan.

2. Briefly stated the facts giving rise to this petition are to the effect that respondent No.3 filed a snit for recovery against the petitioner under the summary procedure provided under Order XXXVII of the C.P.C. The suit was decreed to the tune of Rs.6,50,000 plus costs (total Rs.6,80,800) through the judgment and decree dated 20-2-2010. The petitioner's appeal against the said decree (R.F.A. No.22/10/BWP entitled Muhammad Iqbal v. Muhammad Sharit) was dismissed by a learned Division Bench of this Court on 16-9-2010. The petitioner has challenged the dismissal of his appeal before the Hon'ble Supreme Court of Pakistan through C.P.L.A. No.1883-L/2010. The said C.P.L.A. is pending. No stay order, however, has been passed by the Hon'ble Supreme Court of Pakistan.

3. Respondent No.1 in the meantime filed a petition for execution of the decree dated 20-2-2010. The said petition is pending before respondent No.2 (the learned executing court). The petitioner took the stand before the learned executing court that since his appeal is pending before the Hon'ble Supreme Court, the execution proceedings be stayed. The learned executing court in absence of any stay order declined his prayer. The execution process continued with the result that due to the petitioner's non-appearance his warrants of arrest were issued on 12-4-2011. Feeling aggrieved the petitioner filed a revision petition before the learned District Judge, Rahim Yar Khan, which came up for hearing before respondent No.1 who through the impugned order dated 18-4-2011 dismissed the petitioner's revision petition.

4. The learned counsel for the petitioner contends that the impugned orders dated 12-4.2011 and 18-4-2011 are bad in law inasmuch as both the learned Courts below ignored the fact that the petitioner's appeal is pending before the Hon'ble Supreme Court of Pakistan. This fact alone should have made the learned Courts below to stay their hands in the matter. The impugned orders are illegal and without lawful authority. In passing the impugned orders the provisions of section 51, Order XXXVII and Order XL of the C.P.C. have not been adhered to by the learned Courts below. Moreover, instead of issuing warrants of arrest of the petitioner the learned executing court should have first of all sought execution of the decree against the person who stood surety on behalf of the petitioner in the suit filed by respondent No.1 under the summary procedure provided under Order XXXVII of the C.P.C.

5. I have considered the arguments of the learned counsel for the petitioner and have also gone through the petition as also the record appended thereto with the assistance of the learned counsel for the petitioner.

6. I do not find force in the contention of the learned counsel for the petitioner that since the petitioner's C.P.L.A. was pending before the Hon'ble Supreme Court, the learned courts below should have stayed their hands in the matter. It is settled law that mere filing of an appeal/revision/representation before a higher forum does not automatically operate as a stay of the order impugned. I find support for the above proposition from the judgments reported as Shah Wali v. Ghulam Din alias Gaman and another (PLD 1966 SC 983), H.M. Fazil Zaheer v. Kh. Abdul Hameed and others (1983 SCMR 906) and Government of Punjab through Secretary, Labour and Manpower, Civil Secretariat and others [2006 PLC (C.S.) 325(sic)].

7. Even otherwise, under Order XX of the Supreme Court Rules, 1980 the filing of a C.P.L.A. or an appeal does not prevent execution of B a decree or order appealed against unless a stay of execution of the decree or order is passed by the Hon'ble Supreme Court of Pakistan. As cited in a judgment reported as Hilbro Instruments (Pvt.) Ltd. Through Chief Executive, Lahore v. Mst. Sikandar Begum through Special Attorney (PLD 2008 Lahore 57) in C.P. No.48-L/2005 the Hon'ble Supreme Court of Pakistan passed the following order on 28-3-2005:-- "Perused the explanation furnished by Mrs. Kaneez Faiza Bhatti, Civil Judge 1st Class/Magistrate Section 30, Sheikhupura. It is not satisfactory. She is warned to be careful in future. She must proceed with the cases unless stay is produced before her. A copy of this order be sent to the Registrar, Lahore High Court for keeping it in her personal file. The provisions of Order XX of the Supreme Court Rules, 1980 be brought to the notice of the Registrar of all the High Courts for "strict compliance by ail the Courts/Forums working under supervision control of the High Court."

8. The contention of the learned counsel for the petitioner is, therefore, misconceived. As held by the Hon'ble Supreme Court of Pakistan the learned Courts below are to proceed with cases unless a stay order is produced before them. Under the circumstances, this contention of the learned counsel. for the petitioner is repelled.

9. As to the contention of the learned counsel for the petitioner that the provisions of section 51, Order XXXVII and Order XL of the C.P.C. were not followed by the learned courts below nor any proceedings have been initiated for sale of the property of the person who stood surety for payment of the decretal amount during pendency of the suit, suffice it to say that this contention of the learned counsel also does not come to his aid. The reasons therefor being: firstly under section 128 of the Contract Act, 1872 the liability of a surety is co-extensive with that of the principal debtor which in this case is the petitioner. And secondly it is borne out from the record that not only is there no stay order in the petitioner's favour but also that the petitioner has been acting from day one in a manner designed to frustrate the execution of the decree. The petitioner despite being "served through his father did not appear before the executing court. Consequently, warrants, for his arrest firstly bailable and thereafter non-bailable were issued. The petitioner finally entered appearance before the learned executing court on 22-11-2010. The petitioner in the meantime had filed a revision petition which was dismissed on 26-10-2010 with the observation that the petitioner as undertaken shall appear before the executing court. It appears that the petitioner appeared before the executing court on 22-11-2010 in view of the said order dated 26-10-2010 passed by the revisional court. After appearing before the learned executing court on 22-11-2010 the petitioner failed to appear on the subsequent date i.e. 10-12-2010. As a consequence non-bailable warrants of his arrest were issued for appearance on 21-1-2011. On this date the petitioner appeared and sought time to file an objection petition. Time was granted. On 8-3-2011 the petitioner instead of filing an objection petition filed an application that the proceedings before the learned executing court be stopped as the petitioner had filed the C.P.L.A. before the Hon'ble Supreme Court of Pakistan. But as there was no stay 'order in the field the learned executing court declined the said plea and directed the petitioner to either pay the decretal amount or to produce a copy of the stay order issued by the Hon'ble 'Supreme Court of Pakistan on the next date, which was fixed as 22-3-2011. Thereafter the matter was adjourned for a couple of dates and on 12-4-2011 the petitioner appeared before the learned executing court in the earlier part of the day and then absented himself. The learned executing court was, therefore, constrained to pass the impugned order dated 12-4-2011 which is being reproduced hereunder for ease of reference:- The petitioner challenged the above order by way of a revision petition but the learned Additional District Judge primarily due to the conduct of the petitioner declined to interfere in the matter and dismissed the revision petition through the impugned order dated 18-4-2011.

10. From a resume of the facts given above it is evident that the petitioner's conduct has not been above board. He was provided an opportunity to file an objection petition. He failed to do so and instead without a stay order having been issued by the Hon'ble Supreme Court of Pakistan sought to have the execution proceedings stayed. The learned executing court acting in accordance with the law as quoted hereinabove declined the said prayer. The petitioner, therefore, having failed to avail of the opportunities granted to him left the learned executing court with no choice but to proceed further in the matter in accordance with the law.

11. Under the circumstances I do not feel inclined to interfere in the matter by exercise of the extraordinary constitutional jurisdiction vested in this Court under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973.

12. This petition consequently fails and is accordingly dismissed in limine. M.H./M-887/L Petition dismissed.