1. ' MUNIB AHMED KHAN, J.---This IInd Appeal has a chequered history. The factual position has elucidately been given in the impugned judgment dated 17-2-2007 of the Additional District Judge therefore detail of which has been avoided. The necessary and relevant part in this appeal is that a remand order was passed in IInd Appeal No,4/94 by this Court, which was challenged in the Honourable Supreme Court in C.P.L.A. No,189-K/96 and leave was granted on 3-6-1997, that leave was converted into Civil Appeal No,1776/97 and same was finally allowed on 16-1-2003, whereby the above remand order of this Court dated 17-3-1996 was set aside and this Court was directed to decide the case on merit. It appears that during the period C.P.L.A. Was filed, the office of this Court remanded the matter back to the civil Court which acted in terms of the remand order and dismissed the suit on 1-3-1997 for non-prosecution as the respondent did not appear. Since Appeal No,4/94 as revived by the Honourable Supreme Court therefore it was taken up and the appellants withdraw it unconditionally on 17-3-2004 without giving any reason for withdrawal.
2. ' On the other hand, the respondent after order of Honourable Supreme Court as well as withdrawal of Appeal No,4/94 before this Court appeared in civil Court in execution with a picture in mind that after withdrawal of Appeal No,4/94 the orders of civil Court and Additional District Judges Court were very much there in his favour, hence to be executed. The Civil Court keeping in view the order of Honourable Supreme Court proceeded in the execution and rejected the objection of the appellants while Ist Appellate Court also did the same, hence this IInd Appeal.
3. ' Now Mr. Sajid Latif has contended that Execution Application No,3/2004 was not maintainable as the Suit had already been dismissed on 1-3-1997 therefore that execution was wrongly entertained for further proceedings and trial Court wrongly dismissed the objection of the appellants while same job has been done by the appellate Court by dismissing the appeal by judgment dated 17-2- 2007.
4. ' On the other hand, Mr. Imran Ahmed, learned counsel for the respondent submits that after the order of remand dated 17-3-1996 in IInd Appeal No,4/94, matter was taken before the Honourable Supreme Court wherein C.P.L.A. Was converted into appeal and finally it was allowed on 16-1-2003: He submits that after the order of the Honourable Supreme Court, it was incumbent upon this Court as well as on the parties to proceed with Appeal No,4/94 but the appellants withdrew that Appeal No,17-3-2004, which means that the initial orders in the suit as well as in the Appeal, which were challenged in Appeal No,4/94, have been revived and execution was rightly filed. He submits that the remand order of this Court dated 17-3-1996 was no more in the field after the order of the Honourable Supreme Court dated 16-1-2003 and that the respondent was not aware about the dismissal of the suit on 1-3-1997 as neither any information was received by him nor appellants did appear in the Honourable Supreme Court to intimate this fact to the respondent or to the Honourable Supreme Court itself. He has also relied upon 1992 SCMR 302.
5. ' After hearing the learned counsel, it appears that the issue involved in this matter is as to whether order of remand passed by this Court on 17-3-1996 in IInd Appeal No,4/94 will prevail and certain actions taken in pursuance to that will give right to the parties or not or whether this order has been merged in the order of Honourable Supreme Court dated 16-1-2003 passed in Civil Appeal No,1776/97 and that all the orders passed subsequent to the order of remand will also be subject to final determination by Honourable Supreme Court.
6. ' From the facts and arguments, it appears that parties were contesting tooth and nail and respondent, aggrieved by the order of remand dated 17-3-1996 approached the Honourable Supreme Court through C.P.L.A. Which was converted into appeal on 3-6-1997 and finally on 16-1- 2003 remand order was set aside and this Court was required to give its finding on merit instead of remanding the case. To my view, the litigation between the parties was in continuation till the final order of the Honourable Supreme Court was passed and right and obligation were finally to be determined in terms of that order. The authority which has been relied upon by the learned counsel for respondent i.e, 1972 SCM R 302 is on the issue and its head note (b) is reproduced as under:--
(b) Appeal to Supreme Court---Appeal against order of High Court remanding case to trial Court- --Trial Court, on remand passing decree before decision by Supreme Court on petition for Special leave to appeal---Such decree even if not appealed against, held, must, in circumstances, be taken to be subject to result of appeal to Supreme Court from dealing with appeal pending before it.
7. ' In the said authority, reliance has also been placed on AIR 1955 Honourable Supreme Court 576, which has solved the above issue in following points; -- ' Where the High Court, after passing a final order, has remanded the case to the trial Court for proceeding in accordance with law and the decree of the trial Court after remand is passed between the date of an application for leave to appeal to the Supreme Court from the order of the High Court and the date on which leave was granted the decree of the trial Court even if not appealed against, must, in the circumstances be taken subject to the result of the appeal to the Supreme Court, and cannot be said to be conclusive so as to prevent the Supreme Court from dealing with the appeal and setting aside or modifying the judgment of the High Court and making a fresh order of remand to that Court itself..
8. It has been noted that the order of remand was set aside on 16-1-2003. The appellants instead of proceeding with Appeal No,4/94, according to the directions of the Honourable Supreme Court, withdrew same on 17-3-2004 therefore by doing so he has conceded to both the orders of original Court as well as first appeal Court, hence execution was rightly filed and no exception can be taken to that. It is a matter of common sense that in continuation of the proceedings, the final order of the highest Court will prevail, A hence all the orders coming contrary to that are to be considered as merged into it and will have no force if they are coming in conflict with the order of the highest Court. The appeal was allowed by the Honourable Supreme Court on 16-1-2003 with the direction that IInd Appeal No,4/94 to proceed on merit, which was filed by the appellants against the order of the original Court as well as of the appellate Court but instead of proceeding with it, the appellants withdrew the appeal on 17-3-2004, hence his acts in itself have consented to the orders of lower Courts, which have been impugned in the said appeal. The contention of the learned counsel for the appellants that the dismissal order passed by the civil Court in non-prosecution on 1-3-1997 will prevail as the same has not been disturbed by the Honourable Supreme Court is totally misconceived and misadvised. The factual position and stand taken by the appellant show that he has unnecessarily dragged the respondent in lengthy litigation. He did not tell this Court at the time of withdrawal on 17-3-2004 that the Honourable Supreme Court had already passed order on 16-1- 2003 directing thereby this Court to decide the matter on merit nor he disclosed the pendency of matter before Honourable Supreme Court to the civil Judge which dismissed the suit in non- prosecution.
9. In such a situation, this IInd Appeal is dismissed with a cost of Rs,50,000 to be paid to