P L D 1956 (W (PLP)

HABIBULLAH KHAN. J.‑This appeal arises out of a pre emption suit brought by Fazal Ahmad and Nur Ahmad, of Abbottabad, in respect of the sale of three houses situated within the limits of Abbottabad Municipality, and purchased by Miss R. A. Money and Miss L. Money. The suit was dismissed by the trial Court on the ground that sale of property in the Municipal area of Abbottabad was not pre‑emptible. The N. W. F. P. Pre‑emption Act XIV of 1950 came into force on the 15th March 1950. Subsection (2) of section 7 of the Act empowers the Provincial Government to declare that in any local area or with respect to zany land or property or class of land or property, or with respect to any sale or class of sales, no right of pre‑emption shall exist. In exercise of these powers, the Governor, by Notification No. 4347‑L. D., dated 7th November 1951, published in the N. W. F. P. Government Gazette, declared that no right of pre‑emption shall exist in the municipal area of Abbottabad from the date of the enforcement of the said Act. The suit was instituted on 27th March 1952, and dismissed on 28th January 1953. Mainly two technical objections have been raised on behalf of the plaintiff‑appellants, namely: ‑ (1) that the Notification excluding the Municipal area of Abbottabad from the operation of the Pre‑emption Act has been issued by the Governor, and not the Provincial Government, as required by subsection (2) of section 7 of the Act, and (2) that the expression "loss of his interest occurring after the date of such decree" in section 16 of the Pre‑emption Act means "voluntarily loss of interest" incurred by the pre‑emptor, and not loss which he suffers on account of any notification issued by the Provincial Government. As regards the first objection, whereby the jurisdiction of the Governor to issue notification is questioned, we may refer to section 49 of the Government of India Act, 1935, (as adopted by the Pakistan (Provisional Constitution) Order, 1947, which says: ‑ "the executive authority of a Province shall be exercised by the Governor, either directly or through officers subordinate to him . . . . . ." On the plain words of this section, the Governor is quite competent to exercise the executive authority of his Province. It is further provided in section 59 of the same Act that all executive actions of the Government of a Province shall be expressed to be taken in the name of the Governor. The two sections, read together, make it" abundantly clear that the executive authority of a Province shall be exercised by the Governor and that all executive actions of the Government of a Province shall be expressed to be taken in his name. We do not find ourselves in agree ment with the argument of the learned counsel for the plaintiff‑appellants that the notification should have been issued by the Provincial Government, and not the Governor. It is now well‑settled that orders passed and notifications issued in the name of Governor will be deemed to have been passed and issued by the Provincial Government, and the point requires no elaborate discussion. It is not disputed that in the present case, the Governor issued the notification in question in exercise of the powers conferred upon him by subsection (2) of section 7 of the Pre‑emption Act, and the action was of an executive nature. The second objection raised holds little water. Section 16 of the Pre‑emption Act says: ‑ "no decree .for pre‑emption shall be passed in favour of any person unless he has a subsisting right of pre‑emption at the time of the decree, but where a decree for pre‑emption has been passed in favour of plaintiff, whether by a Court of first instance or of appeal, the right of such plaintiff. shall not be affected by any transfer or loss of his interest occurring after the date of such decree." In plain language the section lays down that the pre emptor must have a subsisting right at the time of the decree. No doubt, the sale in the present case took place on 28th March 1951, but the suit was instituted on 27th March 1952. The notification which was issued on 7th November 1951, had deprived the plaintiffs of their right of pre‑emption, and as such, they 'had no subsisting right on the date of the decision of the case or even on the date of the institution of the suit. The learned counsel for the appellants half‑heartedly advanced another argument also, namely, that the notification issued by the Governor could not take retrospective effect. It is not necessary to discuss this point, because we have already held that the plaintiffs had no subsisting right of pre‑emption on the date of the institution of the suit i.e., 27th March 1952, because of the effect of the notification issued earlier. An application has been submitted on behalf of the plaintiff‑appellants, praying for the adjournment of the appeal on the ground that the Deputy Custodian has declared the subject‑matter of the suit as evacuee property, and that a revision petition against his order is pending before the Custodian. In view of our finding that the transaction is not pre‑emptible, the adjournment asked for becomes unnecessary. We therefore, confirm the judgment and decree of the trial Court, and dismiss the appeal. As important questions of law are involved in the case, we leave the parties to bear their own costs. A. H. Appeal dismissed.