' NASIR-UL-MULK, J.---The petitioners and the respondents belong to the same family and a dispute arose between them over proceeds from the sale of a joint property. As a result, the petitioners filed two suits for recovery against the respondents. The suits were consolidated and a partial decree for a sum of Rs,4,84,00,000 was passed in favour of the petitioners. The judgment and decree were assailed by the petitioners as well as by the respondents. The petitioners filed an application for execution of the decree. The respondents in their appeal, filed another application (C.M. No,1/C of 2010) for suspension of the execution proceedings of which notice was given to the petitioners on 30-3-2010. The respondents moved two more applications (C.M. Nos.2/C and 3/C of 2010) on which the Court by order dated 23-6-2010, without notice to the petitioners, directed the respondents to file fresh evaluation of the property furnished as security for the decretal amount. The application was adjourned to 23-6-2010. On the said date the case was further adjourned to 8-7-2010 to provide another opportunity to the respondents to produce evaluation report. In the meanwhile, another application (C.M. No,4/C of 2010) was moved by the respondents for the suspension of the execution proceedings as by then the executing Court had issued warrants of arrest of the respondents/judgment debtors as well as warrants of attachments of their immovable properties.
Without notice to the petitioners, the Court accepted the evaluation report of the two properties by order dated 6-72010 and suspended the execution proceedings, provided that the documents pertaining to the said properties were furnished to the satisfaction of the executing Court. By the same order, the High Court directed the fixation of the main appeal on 24-9-2010. The petitioner have impugned the order dated 6-7-2010.
2. We had adjourned this petition a number of times, hoping that the appeals pending before the High Court would be decided, as while suspending the judgment and the decree the Court had fixed the hearing of the main appeals. However, it appears that the appeals are not likely to be disposed of shortly.
3. Mr. Masud Abid Naqvi, Advocate Supreme Court, appearing for the petitioners and Mr. Gulzarin Kiyani, Senior Advocate Supreme Court, representing the respondents, agreed that since the impugned order was passed without notice to the petitioners, the question of suspension of the execution of the decree passed in favour of the A petitioners be settled by the High Court. The learned counsel for the petitioners, however, prays that the impugned order be set aside and the application filed by the respondents be decided afresh, as the petitioners have serious reservations regarding evaluation of the property furnished as security to cover the decretal amount.
4. Mr. Gulzarin Kiyani, Senior Advocate Supreme Court, on the other hand maintained that the only remedy for the petitioners in view of the principle laid down by this Court in Messrs Arkywas (Pvt.)
Limited v. Federation of Pakistan (PLD 1992 SC 250) is to move to the High Court for vacation of the impugned order. The reliance on the said case is misplaced, as there is an interim order passed by the High Court that was assailed in this Court. Whereas the order impugned before us is the final order, which has been passed without notice to the petitioners.
5. In the circumstances of this case, it will be appropriate to treat the impugned order as an interim one, to enable the petitioners to raise their necessary objections to the suspension of the execution proceedings. Consequently, this petition is converted into appeal and partially allowed in the terms that the impugned order is to be treated as an interim order and C.M. No, 4/C of 2010 shall be deemed to be pending and the same shall be disposed of after hearing the petitioners. The parties are directed to appear before the High Court on 11-11-2010 for the hearing of C.M. No, 4/C of 2010 in R.F.A. No, 194 of 2010.