IN THE HIGH COURT OF SINDH

CIRCUIT COURT AT LARKANA

CP S-510 of 2015

Muhammad Ayoub and Others

vs.

Khalid Hussain and Others

For the Petitioners:                          Mr. Imdad Ali Tunio

                                                          Advocate

For the Respondents:                    Mr. Abdul Rahman Bhutto Advocate for Respondent No.1.

                                                          Mr. Amir Ahmed Narejo Advocate for official respondents.

Date of Hearing:                              12-10-2018

Date of Order:                                 12-10-2018

O R D E R

Agha Faisal, J.     Through the present petition, the petitioners have assailed the order dated 18.03.2015, passed by the Court of learned IInd Additional District Judge, Mehar in Civil Revision Application 15 of 2014 (“Impugned Order”).

2. Mr. Imdad Ali Tunio, learned counsel for the petitioners, stated that the private respondents had filed a suit for declaration and permanent injunction against the present petitioners, which was decreed in their favour and hence execution proceedings were filed in respect thereof.  The present petitioners filed an appeal against the said Judgment and Decree, however, during the pendency of the appellate proceedings the execution application was allowed.  It was contended that the execution proceedings could not have been allowed during the pendency of appeal, therefore, the same was assailed vide a Civil Revision Application preferred before the Court of learned IInd Additional District Judge, Mehar and the same was dismissed vide the Impugned Order.  Per learned counsel, the grant of an execution application during the pendency of an appeal was not permissible under the law and such an illegality was neither recognized nor corrected in the Impugned Order, hence the present petition.

3. Mr. Abdul Rahman Bhutto, learned counsel for respondent No.1, controverted the arguments advanced on behalf of the petitioners and argued in support of the Impugned Order.  Per learned counsel, the pendency of appeal was no bar upon the continuation or conclusion of execution proceedings and hence there was no merit to the argument that the execution proceedings or the orders passed therein were otherwise than in accordance with the law.  Learned counsel adverted to the Impugned Order and submitted that the controversy was exhaustively discussed therein and the order passed is in due consonance with the law and hence no interference is merited therewith.

4. This Court has heard the respective learned counsel and has also benefitted with the perusal of the record.  The sole contention of the petitioners is that the execution proceedings could not have been concluded during the pendency of an appeal and that the learned Revisionary Court had erred and not recognized such an alleged infraction of the law.

5. It has been categorically stated by the learned counsel for the petitioners that the appeal against the original Judgment and Decree has been decided by the learned appellate Court and the said appeal stands dismissed, while upholding the Judgment and Decree of the learned trial Court.  Notwithstanding the fact that the said appeal has been dismissed, it is observed that no stay order was ever rendered therein, which would require the staying of execution proceedings underway concurrently. The learned counsel for the petitioners has been unable to demonstrate as to why mere pendency of appellate proceedings would preclude the continuation and conclusion of execution proceedings.  The Impugned Order has duly considered this issue and rightfully determined the same. It may be prudent to reproduce the operative constituent thereof:

“6.      Having heard learned counsel for the respective parties, I have also gone through the order of learned trial Court.

 7.      It is admitted fact that since there is no any stay order passed by any appellate forum restraining learned trial court from proceedings with the execution application, hence, there was no bar on it to pass such order when judgment and decree was already passed.  Even the appeal filed against judgment and decree in F.C.Suit No.51 of 2007 has also been dismissed as the same was attached with the present execution application, therefore, I find no any illegality or irregularity in the order passed by learned trial court, hence, the same stands sustained and Civil Revision application in hand stands dismissed with no order as to costs.”

6. It has been held in the case of Asif Rafique vs. Mst. Quratullain & Others, reported as 2016 MLD 425, that the exercise of constitutional jurisdiction in such matters was only warranted in rare circumstances if the findings recorded by the Courts below are arbitrary and suffering from the vice of misreading or non-reading of evidence. In this matter, it is the considered view of this Court that the findings of the learned Revisionary Court suffer from no such infirmity and that the petitioner has failed to plead any rare circumstance, which would attract the jurisdiction of this Court.

7. Therefore, the Impugned Order is hereby upheld and maintained and the present petition, alongwith the listed applications, is hereby dismissed with no order as to costs.

Judge

Manzoor