MIAN HAMID FAROOQ, J. --- Present revision petition proceeds against order dated, 8.5.2006, whereby the learned Additional District Judge dismissed petitioners' application for temporary injunction on the ground that they failed to show "special circumstances" for obtaining leave to defend the suit.
2. Precisely stated facts relevant for the decisicn of the present petitioner are that the respondent filed the suit for recovery of Rs. 34,00,000/- against the petitioners, as legal heirs of Shaukat Ullah Khan, deceased, before the learned District Judge, under the summary procedure provided under Order XXXVII, C.P.C., on the basis of promissory note dated 5.1.2004. The petitioners were, reportedly, served through registered post, affixation of summons and by publication in the newspaper. The petitioners did not file any application seeking leave to appear and defend the suit. The learned Trial Court, (Additional District Judge) after recording ex parte evidence, decree respondent's. Suit with costs and simple profit, vide judgment and decree dated 8.8.2005. Pursuant to the said decree, the respondent, on 22.11.2005, filed the execution petition before the learned Additional District Judge, who transferred it for execution to the Court of learned Civil Judge, who on 24.2.2006, issued warrants for the arrest of the petitioners. The execution petition is now pending before the learned Civil Judge. The petitioners filed the application, presumably under Order XXXVII, Rule 4, C.P.C., seeking setting aside of decree dated 8.8.2005, together with an application for the grant of leave to appear and defend the suit, on the ground that they were not served, as the petitioners No. 2 and 3 are residing abroad; petitioner No. 1 remains out of city on account of his business preoccupations; petitioner No. 4 resides with her husband at Gujrat and the petitioner No. 5 is resident of Chak No 10 The petitioners also filed an application for suspension of operation of the decree. On these applications the learned Trial Court issued notices to the respondents. However.
Petitioners' application for temporary injunction was discussed on the ground, that they failed to show "special circumstances" for obtaining leave to appear and defend the suit, vide impugned order dated 8.5.2006. Hence the present revision petition. .
3. Learned counsel for the petitioners contends that order dated 24.2.2006, whereby warrants of arrest of the petitioners were issued, is not sustainable in law, as it violates the provision of Section 51 of the Code of Civil Procedure. He adds that the learned Trial Court failed to appreciate "special circumstances" narrated in their application, filed under Order XXXVII, Rule 4, C.P.C. Conversely, the learned counsel for the respondent, while supporting the impugned order, states that since, the petitioners were served in accordance with law, therefore, the decree as well as the impugned order were rightly passed.
4. I have heard the learned counsel for the parties and examined the available record. Firstly, coming to order dated 24.2.2006. The learned Executing Court (Civil Judge), after receipt of the execution file from the learned Additional District Judge, issued notices to the petitioners and when they were not served, their warrants of arrest were issued. It is, however, not understandable from the available record as to whether those warrants were issued under section 51, C.P.C. i.e. In execution of the decree or those were to effect the service of .The petitioners. In both the cases, the said order is not sustainable under the law. The learned Executing Court without adhering to the provisions of section 51,C.P.C. And other provisions of law in this regard, issued warrants of arrest of the petitioners in an undue haste. Said illegal action of the learned Executing Court cannot be countenanced under any stretch of imagination, therefore, I am persuaded to set aside the order, whereby petitioners', warrants of arrest were issued.
5. Now dealing with order dated 8.5.2006, whereby petitioners' application for the grant of temporary injunctiOn was dismissed. Admittedly, both. The applications, filed by the petitioners, one for setting aside ex parte decree dated 8.8.2005 and the other for grant of leave to defend-the suit, are pending before the learned Additional District Judge and he, through the impugned order, has only decided the application for suspension of operation of the decree. It is evident from the tenor of the impugned order that the learned Additional District Judge, while deciding the application for the grant of temporary injunction, has in fact tried to decide the application seeking setting aside of ex parte decree, inasmuch as it has been held that "no plausible explanation for non-appearance during the , pendency of the suit" wherein impugned judgment and decree was passed, has been shown.
Needless to and that parameters for deciding the application for the grant of C.L.R. temporary injunction and application for leave to appear and defend the 'suit are different. The learned Additional District Judge has prejudged the matter and as a matter of fact decided, petitioner's application for leave to appear and defend the suit without hearing them on the latter application.. To my mind, the findings where, of would definitely cause prejudice to the case of the petitioners, while deciding their two pending applications. Learned Additional District Judge should have refrained himself from giving his findings on the main application, which he did. Not intend to decide. Order dated 8.5.2006 cannot be allowed to remain in field
6. In the above perspective, the present revision petition is decided in the following terms:--- The present revision petition is allowed and orders dated 24.2.2006 and 8.5.2006 are set aside.
(ii) Petitioners applications (one for setting aside ex parte judgment and decree and other for grant of leave to appear and defend the suit) and the execution petition, filed by the respondent, are withdrawn from the respective Courts and entrusted to the Court of District Judge, Sargodha, and henceforth those matters shall be deemed to be pending before the District Judge, Sargodha.
(i.e) Learned Transferee Court shall, firstly, decide petitioners' two applications, noted above, after hearing the parties and of course in accordance with law, within a period of two months from today and without being impressed by the findings of the learned Additional District Judge in his order dated 8.5.2006.
(iv) After deciding those applications, the learned District Judge may proceed with the execution petition, if need arises.
(v) No order as to costs. .