P (PLP)
Sheikh MUHAMMAD RAFIQ‑‑Petitioner Versus SAHIBUN‑.NISSA BEGUM and others‑Respondents
| Citation | P (PLP) |
| Forum / Court | |
| Bench Members | M. R. Kayani, J |
| Parties | Sheikh MUHAMMAD RAFIQ‑‑Petitioner Versus SAHIBUN‑.NISSA BEGUM and others‑Respondents |
Q1: What are the key laws and sections cited in P (PLP)?
This judgment primarily cites: statutory provisions as referenced in Pakistani case law index.
Q2: Which judicial bench decided the case P (PLP)?
The case was heard and decided by the bench comprising: M. R. Kayani, J.
Q3: What is the official citation format for this judgment on Pakistan Law Portal?
Cite this legal precedent as: P (PLP) (Sheikh MUHAMMAD RAFIQ‑‑Petitioner Versus SAHIBUN‑.NISSA BEGUM and others‑Respondents). Read the full summary and cross-referenced laws free on Pakistan Law Portal.
Representation
- Sh. Akbar Ali, Advocate, for Petitioner.
- Sh. Abdul Aziz. Advocate, for Respondent.
Headnotes / Summary
(a) Civil Procedure Code (V of 1908), O. IX‑Whether applies to proceedings subsequent to preliminary decree -Administration suit. After a preliminary decree for taking accounts had been passed in an administration suit the trial Court fixed a date for the deposit of the commissioner's fee by the plaintiffs and as this order was not carried out in time, the plaintiff's were burdened with costs and a further date fixed for the deposit of the fee. On this date neither party was present and since neither costs had been paid nor the commissioner's fee had been deposited, the plaintiff's' application for the appointment of the commission was consigned to the record room for want of prosecution. The plaintiffs applied for the restoration of this application which was restored subject to the payment of costs. From the order of restoration the defendants went up in revision to High Court. On the plea of the defendants that a suit continues until the final decree is passed and that an application following a pre liminary decree for the preparation of the final de, ice is not an application for execution but is an application in the suit, and further that spice the suit continues even after the passing of should be subject to the provisions of Order IX Civil Procedure Code and consequently subject to the law of limitation : Held that Order IX, which applies to proceedings prior to the passing of the decree, could not be made applicable also to pro ceedings following a preliminary decree, for, after a decree has once been made in a suit, the suit cannot be dismissed unless the decree is reversed on appeal. Lachmi Narayan Marwary v. Balmakund Marwary A. I. R. 1924 P. C. 198 followed. Narain Das v. Bhagwati Parasad A I R 1934 All. 465 distinguished.
Judgment & Decree
M. R. KAYANI, J.‑Mst. Sahib‑un‑Nisa and her sister brought a suit against their brothers for the administration of the estate of their deceased father Maula Bakhsh and obtained a preliminary decree on the 24th of March 1943 from the Court of appeal which directed the trial Court to appoint a commissioner for taking account of mesne profits for a certain period. There was a second appeal to the High Court which, however, was dismissed. The trial Court then fixed a date for the deposit of the commissioner's fee by the plaintiffs and as this order was not carried out in time, the plaintiff's were burdened with costs and a further date fixed for the deposit of the fee. 'On this date neither party was present and since neither costs had been paid nor the commissioner's fee had been deposited, the plaintiff's' application for the appointment of the commissioner was consigned to the record room for want of prosecution on the 17th August 1948. The plaintiffs applied for the restoration of this application which was restored on the 22nd of March 1949 subject to the payment of costs. From this order the defendants have come in revision. The petitioner's counsel relied on Narain Das v. Bhagwati Parasad (A. I. R. 1934 All. 465) for the view that a suit continues until the final decree is passed and that an application following a preliminary decree for the preparation of the final decree is not an application for execution but is an application in the suit, arguing further that since the suit continues even after the passing of the preliminary decree, if it is dismissed in default, its restoration should be subject to' the provisions of Order IX Civil Procedure Code and consequently subject to the law of limitation. It is overlooked, however, that what the learned Judges said in Narain Das v. Bhagwati Prasad was intended to distinguish between proceedings in a suit and proceedings in execution and since execution could not start before the final decree had been given, the proceedings following the preliminary decree were obviously proceedings in the suit. Their Lordships could not have intended that the provisions of Order IX, which apply to proceedings prior to the passing of the decree, could be made applicable also to proceedings following a preliminary decree, for, after a decree has once been made in a suit, the suit cannot be dismissed unless the decree is reversed on appeal, see Lachmi Parayan Marwary v. Balmakund Marwary (A. I. R. 1924 Privy Council 198) where their Lordships observed that in such a case " the parties have, on the making of the decree, acquired rights or incurred liabilities which are fixed, unless or until the decree is varied or set aside ". The petition is dismissed with costs. A.H Petition dismissed.