' This Revision Application is directed against the order of the learned Additional District Judge No, IV Hyderabad dated 31st May 1979 passed on the Miscellaneous Appeal No, 59 of 1978 of the applicant, which. In turn, was directed against the order of refusal of injunction, dated 5th August 1978, passed in the applicant's suit for declaration and injunction, bearing No, 69 of 1978.
2. Mr. Zahiruddin Khan, learned counsel for the respondents, at the very outset raised a preliminary objection with regard to the competence of this Revision Application. It was pointed out by him that the applicant's Suit No, 69 of 1978 had been dismissed on 26th September 1978, and this Revision Application, which arises out of the said suit, was no longer maintainable having been rendered infructuous.
3. Mr. Ansar Hussain, learned counsel for the applicant, however, contended that notwithstanding the order of the dismissal of the Suit, this Revision Application was maintainable because the said order of the dismissal of the suit had been passed after the learned Additional District Judge had already sent for the R and P of the case on 9th September 1978 in connection with the appeal preferred by the applicant against the order passed on his injunction application, dated 5th August 1978. The said order of the learned Additional District Judge 9th September 1978 reads as under :- "Admit. Register. Issue summons to the defendant for settlement of issues. Costs. Hearing."
' The learned counsel referred to a Full Bench decision of the Lahore High Court in the case of Karamali and others v. .Raja and others (1). In the said Full Court Reference it was decided that an order of stay granted under Order XLI, rule 5, C. P. C. Operates from the time such order is made and not from the time it is communicated to the executing Court. Reference was next made to another judgment of the Lahore High Court in Syed Nazir Ahmed v. Syed Muhammad Saeed (2), which is based on the judgment in Karamali's case. Both the judgments are irrelevant to the objection raised by Mr. Zahiruddin Khan. Admittedly, no order of stay was granted by the learned Additional District Judge and merely calling for the R & P did not amount to grant of stay. It cannot, there fore, be said that the learned Court of the first instance was divested of its jurisdiction merely by the fact that the R & P of the Suit had been sent for by the Appellate Court. Mr. Ansar Hussain was unable to produce any single decision in support of this proposition. The learned counsel admitted that no appeal was filed against the order of the dismissal of the Suit dated 26th September 1978. The said order, for all intents and purposes, therefore, occupies the field and has became final. The Suit having been dismissed this Revision Application, which is directed against an interlocutory order passed in the Suit, is, on the face of it incompetent and not maintainable.
4. For the reasons mentioned above, the Revision Application is dismissed as having become infructuous with no order as to costs. {{FOOT NOTE}}
(1) PLD 1949 Lah. 100 (2) PLD 1959 (?) Lab, 34 {{FOOT NOTE}}