' NASIR SAEED SHEIKH, J.---The instant E.F.A. Is directed against the order dated 31-1-2012 passed by the learned Senior Civil Judge Lahore rejecting the objection petitions instituted by the appellants before the said learned Court executing the decree dated 16-6-2005, The judgment and decree dated 16-6-2005 was passed against the appellants by the learned Senior Civil Judge Lahore in a Suit No,603-Al 1 instituted on 7-12-2001 for specific performance, injunction and damages. This judgment and decree was confirmed by a learned Division Bench of this Court vide judgment dated 11-7-2011 announced in R.F.A.No,296 of 2005.
2. Execution proceedings have been initiated by the decree holder through an application dated 18-7-2011 which are pending before the learned Senior Civil Judge Lahore. Another development which took place in the matter is that the learned Senior Civil Judge while passing the judgment and decree dated 16-6-2005 directed the respondent/decree holder to deposit an amount of Rs,1,97,94,576 within thirty days of the passing of the judgment and decree dated 16-6-2005. Upon an appeal being preferred through R.F.A.No,296 -of 2005 operation of the judgment and decree dated 16-6-2005 was suspended vide order dated 7-7-2005 passed by a learned Division Bench of this Court on C.M. No,1 of 2005 in R.F.A.No,296 of 2005 and this suspension of the operation of the judgment and decree dated 16-6-2005 was directed to remain operative till the final decision of the appeal. Upon the dismissal of the R.F.A.No,296 of 2005 the respondent filed application before the learned Executing Court on 18-7-2011 seeking permission from the learned Executing Court to deposit the balance amount of sale price which. Was allowed by the learned Executing Court vide order dated 29-7-2011. The appellants assailed the order dated 29-7-2011 through Civil Revision No,3221 of 2011 which was dismissed vide order dated 16-1-2012 by a learned single Judge of this .Court.
3. This order dated 16-1-2012 has been further assailed by the appellants through C.P.L.A. No,1641-L of 2011 in which, according to the learned counsel for the appellants as stated today, the honourable Supreme Court of Pakistan has granted leave to appeal to the appellants but admittedly no injunctive order has been issued by the honourable Supreme Court of Pakistan.
4. The appellants instituted objection petitions before the learned Senior Civil Judge/Executing Court raising contentions to the effect that the respondent was directed by the learned Senior Civil Judge at the time of the judgment and decree dated 16-6-2005 to make the deposit of the remaining sale price of Rs,1,97,94,576 within thirty days of the passing of the judgment and decree and that although the R.F.A.No,296 of 2005 was preferred and the operation of the judgment and decree dated 16-6-2005 was suspended by a learned single Judge of this Court at the time of admission of the R.F.A. But as the R.F.A. Has been dismissed vide judgment dated 11-7-2011, the respondent was entitled to make the deposit within thirty days of the passing of the judgment and decree dated 16-6-2005 which tithe of thirty days, according to the learned counsel for the appellants, after excluding the period during which the operation of the judgment and decree remained suspended by virtue of the interim order dated 7-7-2005, was not taken care of and was allowed to expire by the respondent and the deposit having been made on 29-7-2011 by him, was illegal and therefore the penal consequences specified in the judgment and decree dated 16-6- 2005 by the learned Senior Civil. Judge had taken effect and the suit of the respondent shall be deemed to have been dismissed and the execution proceedings were not therefore legally entertainable and were liable to be dismissed. The learned counsel for the appellants also made a request that since C.P.L.A. No,1641-L of 2011 has been preferred by the appellants against the order dated 16-1-2012 before the honourable Supreme Court of Pakistan therefore proprietary demanded that the learned Executing Court should have restrained from executing the judgment and decree for awaiting the decision to be made by the honourable Supreme Court of Pakistan in the matter.
The learned Senior Civil Judge through the order dated 31-1-2012 has dismissed the objection petitions of the appellants.
5. Through the instant E.F.A. The order dated 31-1-2012 has been assailed.
6. The E.F.A. Came up for hearing on 2-2-2012 and the record of R.F.A.No,296 of 2005 decided on 11- 7-2011 was directed to be put up before this Court along with the E.F.A. And the case was fixed for hearing today.
7. The learned counsel for the respondent has volunteered to appear and arguments of both the learned counsel have been accordingly heard.
8. It is contended by the learned counsel for the appellants that the objection petitions moved by the appellants before the learned Executing Court were disposed of without hearing the appellants which has caused prejudice to the appellants. It is further argued that in the matter the appellants have preferred C.P.L.A. No,1641-L of 2011 against the order dated 16-1-2012 whereby a Civil Revision No,3221 of 2011 was dismissed by a learned single Judge of this court against the order dated 29-7- 2011 allowing the deposit of remaining sale price as mentioned above to the respondent. The learned counsel further argued that a request was made by the appellants to the learned Executing Court to lay its hands off from the execution proceedings simply on the ground that C.P.L.A. Is pending before the honourable Supreme Court of Pakistan and the proprietary demanded that the final decision by the honourable Supreme Court of Pakistan should have been awaited. The learned counsel for the appellants today has further argued that the leave has been granted by the honourable Supreme Court of Pakistan to the appellants in C.P.L.A. No,1641-L of 2011, however, admittedly no injunctive order was issued by the honourable Supreme Court of Pakistan in the matter. The learned counsel contends that the matter being subjudice before the honourable Supreme Court of Pakistan the learned Executing Court should have postponed the execution proceedings and should have awaited for the final decision of the matter by the honourable Supreme Court of Pakistan. The learned counsel thus argued that the rejection of the objection petitions by the learned Executing Court in view of the peculiar circumstances of the case through the order dated 31-1-2012 is illegal. It is argued that since it is an E.F.A., the appellants request that it should be admitted to regular hearing as of right and the execution proceedings be stayed by this Court.
9. The learned counsel for the respondent has objected to the arguments raised by the learned counsel for the appellants. It is argued by the learned counsel for the respondent that the appellants were fully heard by the learned Executing Court while passing the order dated 31-1-2012 and the order passed by the learned Executing Court is self sufficient to prove the above argument.
It is next contended that the honourable Supreme Court of Pakistan has itself issued a letter dated 4-4-2005 to all the Registrars of the High Courts of four provinces while hearing C.P.L.A. No,48-L of 2005 that unless and until there is an injunctive order passed by the honourable Supreme Court of Pakistan in a particular matter, execution proceedings be not stayed. The learned counsel has placed on record today a photocopy or the letter dated 4-4-2005. It is further contended that the deposit allowed to the respondent after the dismissal of the R.F.A. No,296 of 2005 by the learned Executing Court is perfectly legal and there is no justification for the appellants to have raised any objection to the execution proceedings particularly due to the fact that the Civil Revision No,3221 of 2011 instituted by, the appellants was dismissed against the order dated 29-7-2011 allowing the respondent to make deposit of the remaining sale price in the court as per judgment and decree dated 16-6-2005. It is next contended that as the appellants do not have any legal arguments to raise before this Court, the E.F.A. Is not maintainable on the face of it therefore it is not correctly argued before this Court that the instant E.F.A. Should be admitted to regular hearing and injunctive order be granted to the appellants. The learned counsel for the respondent thus prayed for the dismissal of the instant E.F.A.
10. I have considered the arguments of the learned counsel for the parties.
11. The contention of the learned counsel for the appellants that the learned Executing Court has dismissed the 'objection petitions moved by the appellants without hearing the appellants is against the record. The order dated 31-1-2012 refers to the presence of the learned counsel for the appellants as well as of the decree holder at the time of passing the order. The contentions raised by the learned counsel for the appellants have been taken note of by the learned Senior Civil Judge Lahore/ Executing Court and after rejecting the contentions raised by the learned counsel for the appellants the learned Senior Civil Judge after relying upon the reported judgment HILBRO INSTRUMENTS (PVT.) LTD. THROUGH CHIEF EXECUTIVE, LAHORE V. MST. SIKANDAR BEGUM THROUGH SPECIAL ATTORNEY (PLD 2008 LAHORE 57) and the letter issued by the Registrar of the honourable Supreme Court of Pakistan in C.P.L.A. No,48-L of 2005, rejected the objection petitions of the appellants through the impugned order dated 31-1-2012. The appellants have not stated any ground in the instant E.F.A. That the appellants have been condemned unheard by the learned Executing Court. The authenticity of the judicial proceedings cannot be doubted simply on the oral arguments made by the learned counsel for the appellants as raised before this Court when particularly such arguments are negated by the order passed by the learned Executing Court and no such ground of not hearing the appellants by the learned Executing Court has been raised in the memo of appeal by the appellants in the instant E.F. A. Reliance in this respect is placed upon the judgments reported as MST. SHAGUFTA SHAHEEN V. MUHAMMAD ISMAIL QURESHI AND 2 OTHERS (PLD 2011 PESHAWAR 238), GHULAM RASOOL V. THE STATE (1992 MLD 2455), HAJI INAYAT ALI V. HAJI REHMAT ALI AND 16 OTHERS (2010 MLD 894) and MUHAMMAD USMAN V. SHABANA NAUREEN AND 3 OTHERS (2008 CLC 590). The honourable -Supreme Court of Pakistan in the order passed in the C.P.L.A. No,48-L of 2005 which was reproduced in the letter dated 4-4-2005 issued a notice to the Civil Judge Sheikhupura to submit explanation as to why the said Civil Judge granted adjournments in the execution proceedings directing the judgment debtor of the said case to furnish the stay order from the honourable Supreme Court of Pakistan. The paragraphs Nos.3, 4 and 5 of the said letter written by the Registrar, Supreme Court of Pakistan to all the Registrars of High Courts of four provinces are reproduced below:- "(3) 1 am also directed to inform you that the Civil Judge 1st Class, Sheikhupura was required vide this Court's notice dated 9-3-2005 to submit explanation within 10 days. Mrs. Kaneez Faiza Bhatti, Civil Judge 1st Class, Sheikhupura submitted her explanation vide her Letter No,41 dated. 19-3-2005 which was placed before the Hon'ble Chief Justice of Pakistan who has been pleased to pass the order on 28-3-2005, which is reproduced:- "Perused the explanation furnished by Mrs. Kaneez Faiza Bhatti, Civil Judge 1st Class/Magistrate Section 30, Sheikhupura. It is not satisfactory. She is warned to be careful in future. She must proceed with the cases unless stay is produced before her. Copy of this order be sent to the Registrar, Lahore High Court for keeping it in her personal file.
' The Provisions of Order XX of the Supreme Court Rules, 1980 be brought to the notice of the Registrars of all the High Courts for strict compliance by all the Courts/Forums working under supervision and control of the High Court."
' Order XX of the Supreme Court Rules, 1980 is also reproduced hereunder for ready reference.
"The filing of a petition for leave to appeal or an appeal shall not prevent execution of the decree or order appealed against, but the Court may, subject to such terms and conditions as it may deem fit to impose, order a stay of execution of the decree or order, or order a stay of proceedings, in any case under appeal to this Court."
' 1 am therefore, to request you to ensure strict compliance of Order XX of the Supreme Court Rules, 1980 by all the Courts/Forums working under your supervision and control. The Registrar, Lahore High Court, Lahore is also requested to place a copy of this order on the personal file of Mrs. Kaneez Faiza Bhatti, Civil Judge, 1st Class/Magistrate Section 30 Sheikhurpura."
12. The learned Senior Civil Judge Lahore has made reference of the said letter of the honourable Supreme Court of Pakistan in the impugned order dated 31-1-2012. The learned Senior Civil Juke has also relied upon the judgment reported as PLD 2008 LAHORE 57 in which a learned single Judge of this Court has also referred to the order passed in C.P.L.A. No,48-L of 2005 and recorded the following observations in Paragraph No,5 at pages 58 and 59 of the reported judgment:-- "There is a considerable force in the contention of learned counsel for the respondent and 1 am inclined to agree with the same that after filing of C.P.L.A. Before the honourable.. Supreme Court, this Court can no more exercise its jurisdiction conferred on it under Order XL1, Rule 5(2), C.P.C. And as after the filing of C.P.S.L.A. The matter comes within the jurisdiction of the apex Court and any order passed by this Court thereafter, would not only be an order in per tncuriam but also in violation of the provisions contained in Order XX of the Supreme Court Rules, 1980 as reproduced below; "The filing of a petition for leave to appeal or an appeal shall not prevent execution of the decree or order appealed against, ' but the Court may, subject to such terms and conditions as it may deem fit to impose, order a stay of execution of the decree or order, or order a stay of proceedings, in any case under appeal to this Court."
' In similar circumstances, the. Honourable Supreme Court of Pakistan while disposing of C.P.
No,.48-L of 2005 passed the following order on 28-3-2005; "Perused the explanation furnished by Mrs. Kaneez Faiza Bhatti, Civil Judge 1st Class/Magistrate Section 30, Sheikhupura . It is not satisfactory. She is warned to be careful in future. She must proceed with the cases unless stay is produced before her. A copy of this order be sent to the Registrar, Lahore High Court for keeping it in her personal file.
' The' Provisions of Order XX of the Supreme Court Rules, 1980 be brought to the notice of the Registrars of all the High Courts for strict compliance by all the Courts/Forums working under supervision and control of the High Court."
' In view of the above circumstances, no further indulgence can be shown to the applicant and this application is dismissed holding that provisions of Order XLI, Rule 5(2), C.P.C. Cease to apply after filing of appeal and once the appeal before the high forum is filed, no further indulgence by way of staying the execution of a' decree or order appealed against can be shown.
' The learned counsel for the appellants is not justified in view of the above statement of law to urge that the execution proceedings should have been stayed by the learned Senior Civil Judge/Executing Court on account of the pendency of the CPLA before the honourable Supreme Court of Pakistan wherein admittedly no injunctive Order has been issued by the honourable Supreme Court of Pakistan.
13. There is also no absolute rule or practice of this Court to admit every EFA to regular hearing and then decide the matter. The appellant has been heard by the learned Executing Court as well as by this Court. The instant E.F.A. Cannot be admitted to regular hearing as of right and being devoid of any legal force is accordingly dismissed in limine.