P L D 1992 LAHORE 300 (PLP)

MUHAMMAD ILYAS, J.‑‑‑Civil Miscellaneous No.1‑C of'1992 has been made by the Federation of Pakistan and two others in an appeal, riled by them, against the respondents, Bashir Ahmad and others. The appeal relates to certain land owned. by the respondents, which has been acquired under the Land Acquisition Act, 1894. The i Land Acquisition Collector, Lahore, allowed compensation to the respondents at the rate of Rs.75,000 per Kanal. On a reference made to a ~7ivil Judge of Lahore, however, the learned Civil Judge awarded compensation at the rate of Rs.2,10,000 per Kanal. Above appeal is directed against the judgment and decree passed by the learned Civil judge. 2. , In the civil miscellaneous petition, referred to earlier, the petitioners have prayed for suspension of operation of the judgment and decree under challenge. While presenting his arguments on the said petition, it was submitted by learned counsel for the petitioners that there was no sound basis for awarding exorbitant amount to the respondents by way of compensation. Relying on rule 8‑A of Order XXVII of the Code of Civil Procedure, it was maintained by him that operation of the judgment and decree in appeal could be suspended without requiring the petitioners to furnish iecurity. The said rule 8‑A reads as follows:‑‑ "8‑A. No security to be required from Government or a public officer in certain cases.‑‑‑No such security as is mentioned in rules 5 and 6 of Order XLI shall be required from the Government or, where the Government has undertaken the defence of the suit, from any public officer sued in respect of an act alleged to be done by him in his official capacity."

3. On the other hand, it was contended by learned counsel for the respondents that the decree assailed herein is a money decree and execution of such decree is not normally suspended. He prayed that the sum awarded to the petitioners thereunder may be allowed to be paid to them on furnishing of bank guarantee by them so that they may make use of it during the pendency of the appeal. He cited rule 8 of Order XLI of the Code of Civil Procedure, to support his plea. As for rule 8‑A of Order XXVII, relied"upon by learned counsel for the petitioners, his argument was that it was not applicable to the present case. According to him, the provisions of law attracted to the instant case are contained in rule 8 of Order XLI which make the following reading: "8.Exercise of powers in appeal from order made in execution of decrce.‑‑The powers conferred by rules 5 and 6 shall be exercisable where an appeal may be or has been preferred not from the decree but from an order made in execution of such decree: Provided that, where such appeal has been preferred by the judgment debtor, he shall be required, unless the Court is of opinion that prima facie the appeal is one which must succeed owing to an error apparent on the face of the record,‑‑‑ (a) in the case of a. decree for the payment of money, to deposit the decretal amount or to furnish security for its payment; and (b) in the case of any other decree, to furnish security for the due performance of the decree."

4. Rules 5 and 6 of Order XLI of the Code of Civil Procedure are in respect of appeals prefefred against the decrees but as the opening part of rule 8 of Order XLI reveals, this rule relates to appeal directed against an order passed in execution of a decree and not to appeal filed against a decrees itself would, therefore, follow that the decree mentioned in the provis0 to rule 8 of Order XLI of the Code of Civil Procedure means the decree which is subject‑matter of execution, proceedings in which, the order appealed against and referred to in the opening part thereof has been passed, and not to a decree in appeal of which stay of execution is prayed for As in the instant case Since the present appeal is not directed against any such order but against the decree itself, we feel that rule 8 of Order XLI is not attracted to tthhee ccasee inn hand.

5. According to rule 8‑A of Order XXVII, no "such security as is mentioned in rules 5 and 6 of Order XLI shall be required from the Government or, where the Government has undertaken the defence of the suit, from any public officer sued in respect of an act alleged to be done by him in his official capacity." We feel that rule 8‑A of Order XXVII of the Code of Civil Procedure is fully applicable to the case ‑before us and, therefore, operation of the impugned decree can be suspended thereunder without obliging the petitioners to furnish security. This view is supported by dictum of the Supreme Court in Haji Banaris Khan and others v. Central Government through Secretary, Defence and Military Estate Officer and another 1986 SCMR 4805.

6. Resultantly, we direct that the impugned decree shall not be executed during the pendency of the appeal. Civil Miscellaneous No.l/C of 1992 is disposed of accordingly. M.BA./13‑P/L ORDER ACCORDINGLY