AMIN-UD-DIN KHAN, J.-Through this Civil Revision, order dated 15-5-2002 passed by the learned Additional District Judge, Khushab/learned 1st Appellate Court on the application of respondents Nos.6 to 9 filed under section 144 read with section 151 of C.P.C. Has been challenged.
2. The brief facts out of which the present petition arises are that the plaintiffs-petitioners filed a suit for specific performance of contract against respondents Nos. I to 5 on 1-3-1995. Later on respondents Nos.6 to 5 were also impleaded as party in the said suit. Respondents Nos.1 to 5 filed a consenting written statement. The suit was contested by respondents Nos. 6 to 9 on the basis of some oral sale in their favour and stated that the matter in dispute was pending before the civil court in arbitration proceedings. The suit of the petitioners, Nazar Muhammad etc. For specific performance was dismissed by the learned Civil Judge, Khushab, vide judgment and decree dated 2-7-2001. The plaintiffs-petitioners preferred an appeal against the dismissal of their suit on 7-7- 2001. During the appeal respondents Nos.6 to 9 moved an application under section 144 read with section 151, C.P.C. On 15-12-2001 stating therein that during the pendency of the appeal respondent No,1 had transferred the suit property in favour of the appellants through registered sale deed dated 19-7-2001 and stated that the appeal has become infructuous and that transfer being collusive with the appellants during the pendency of the appeal had adversely effected the r fights of respondents Nos.6 to 9. They pleaded that they purchased this property through decree of the court dated 2-1-1996. They further asserted that during the pendency of the stay order the property has been purchased which be declared illegal and prayed that the sale deed be cancelled. The reply was filed. On 14-1-2002 the appellants withdrew their appeal. Record shows that the learned 1st Appellate Court continued proceedings in the application under section 144 read with section 151, C.P.C. And vide impugned order dated 15-5-2002 declared the sale deed as illegal and unlawful and set aside the same.
3. The learned counsel for the petitioners contends that the learned 1st Appellate Court absolutely had no jurisdiction to entertain the application filed under section 144 read with section 151, C.P.C.
As no decree varied by the 1st Appellate Court while adjudicating upon the sale deed even registered during the pendency of the appeal or the stay order. Learned counsel argued that even otherwise stay order was not with regard to transfer of the suit property and it was only with regard to the possession of the property as the petitioners were in possession of the suit property. It is further contended that the learned 1st Appellate Court was not competent to set aside the registered sale deed while deciding application under section 144 of the C.P.C. It is lastly contended that the 1st Appellate Court has erred in law in passing the impugned order dated 15-5 2002, which may be declared illegal and unlawful and the same may be set aside.
4. On the other hand, learned counsel for the respondents has supported the impugned order with the contention that arbitration proceedings are still pending before the Civil Court and even petitioners Nazar Muhammad etc. Filed an application under section 12(2), C.P.C. Before the court where arbitration proceedings were pending but the same was dismissed on 10-1-1996; that Muhammad Azam respondent No,1 was not having any title to transfer the same in favour of the petitioners; that transfer in dispute was squarely hit by the principle of lis pendens as envisages by section 52 of Transfer of Property Act as the transfer being collusive with the appellants during the pendency of the appeal had adversely effected the rights of respondents, hence, this civil revision may be dismissed.
5. I have given my anxious consideration to the contentions of the learned counsel for the parties and perused the record with their assistance with due care and caution. It is better and appropriate to reproduce section 144, C.P.C. To resolve the controversy between the parties:-- "144. Application for restitution. -Where and insofar as a decree is varied or reversed the Court of first instance, shall, on the application of any party entitled to any benefit by way of restitution or otherwise, cause such restitution to be made as well, so far as may be, place the parties in the position which they would have occupied but for such decree or such party thereof as has been varied or reversed; and, for this purpose the Court may make any order, including orders for the refund of costs and for the payment of interest, damages, compensation and inesne profits, which are properly consequential on such variation or reversal.
(2) No suit shall be instituted for the purpose of obtaining any restitution or other relief which could be obtained by application under subsection (1)."
A plain reading of the aforesaid section reveals that principle of restitution is applicable or attracted where the applicant fulfils the following conditions:-- (a)The restitution must be in respect of the decree which had been varied or reversed:
(b) The party applying for restitution. Must be entitled to benefit under the reversing decree:
(c) The relief must be properly consequential on reversal and variation of decree and is not opposed to any other principle of equity.
6. The aforesaid provision of law reveals that this embodies the principle that nobody shall be prejudiced by the act of the Court meaning thereby it is the paramount duty of the Court to take care that the act of Court does not injure the suiter and when such injury is found by the Court on account of subsequent event of variation or reversal of decree then it is the foremost duty of that Court to undo the wrong and reinstate the wronged party to the position to which it is entitled. In this view of the matter, when confronted to the learned counsel for the respondents that how the learned 1st Appellate Court was having jurisdiction to B entertain the application under section 144 read with section 151, C.P.C. And how the learned 1st Appellate Court has set aside the registered sale deed while deciding application under section 144 of the C.P.C.? Learned counsel for the respondents has stated that as there was no forum available with the respondents to. Get the sale deed set aside, therefore, application under the said provision of law was moved which has been rightly entertained by the 1st Appellate Court. I am afraid that this is no answer to the question put to the learned counsel for the respondents.
7. In my view section 144, C.P.C. And enabling provisions is that on the basis of some order or decree of the court the benefit is extended to any party and the decree is varied by Appellate Court and in other words if some portion of decree is withdrawn, this enabling provision is available with the trial court to ask the party in whose favour the decree and order was passed to return the benefit or return thereof which has been varied by the Appellate Court. In this case there is no decree passed by the learned trial court. The learned trial court has dismissed the suit for specific performance in favour of the dismissal in toto and during the pendency of the appeal, the respondent No, 1 got registered the sale deed in favour of the petitioners who were appellants in the 1st Appellate Court and it is also fact that afterwards that appeal was withdrawn by the petitioners who were appellants before the 1st Appellate Court and this application filed under section 144 read with section 151, C.P.C. Was absolutely not maintainable. The learned 1st Appellate Court has exercised jurisdiction not vested in it by law: Section 144, C.P.C. Does not vest jurisdiction to the court to set aside the registered sale deed between the parties which has not been registered with the aid of the court or by the court. In this view of the matter, the order impugned is absolutely without jurisdiction.
8. So far the contention of the learned counsel for the respondents that the sale deed in dispute was squarely hit by the principle of lis pendens as envisages by section 52 of Transfer of Property Act, is concerned, to avoid consulting the test time and again, section 52 of the Transfer of Property Act, for sake of convenience, is reproduced below:-- "52. Transfer of property pending suit relating thereto. During the pendency in any Court having authority in Pakistan or established beyond the limits of Pakistan by the Central Government of any suit or proceedings which is not collusive and in which any right to immovable property is directly and specifically in question, the property cannot be transferred or otherwise dealt with by any party thereto under any decree or order which may be made therein, except under the authority of the Court and on such terms as it may impose.
Explanation. For the purpose of this section, the pendency of a suit or proceedings shall be deemed to commence from the date of the presentation of the plaint or the institution of proceedings in a Court of competent jurisdiction, and to continue until the suit or proceeding has been disposed of by a final decree or order and complete satisfaction or discharge of such decree or order has been obtained, or has become unobtainable .By reason of the expiration of any period of limitation prescribed for the execution thereof by any law for the time being in force."
From the perusal of the above, it is crystal clear that section 52 of the Transfer of Property Act was absolutely inapplicable as it lays down a precondition for the applicability of principle of lis pendens, that, the proceedings during which the transaction took place were decided in favour of the suiter. In the absence of this situation, the principle of lis pendens would not apply. In the case in hand even the transfer was in favour of the petitioners and subsequently the appeal was withdrawn. Even I am clear in my mind that any transaction made during the existence of stay order is not nullity in the eye of law. The disobedience of the stay order can be a punishment to the person who disobeyed the order but the transaction automatically does not nullify. Even otherwise, in this case as the learned counsel has pointed out, only the stay order was prayed for with regard to the possession of the suit property and it was not with regard to transfer of the suit property.
9. For what has been discussed above, I allow this Civil Revision and the impugned orders being without lawful authority and void are declared as such and are hereby set aside.