' This application for revision has been directed against the order of the Additional Sub-Judge, Rawalakote, dated 1-7-1986 whereby he stayed the proceedings in an application filed by the petitioner for execution of a decree for possession of the land passed by the High Court on 9-10- 1984 in his favour against the respondents.
2. The brief facts leading to the filing of this revision petition are that somewhere in the year, 1966 Muhammad Hussain, predecessorin-interest of the respondents filed a suit in the Court of Sub- Judge, Rawalakote against one Motha Khan, the owner of the land comprising survey No. 463 min.
Measuring 13 kanals 18 marlas situate in village Deraik for a declaration that he had become owner of the said land on account of the same having been purchased by him through a sale-deed executed on 23rd Bhadoon, 1993 Bk. And obtained a compromise decree from the said Court on 23-4-1966.
3. After passing of the above decree, Muhammad Shafi, petitioner filed a pre-emption suit in the Court of Sub-Judge, Rawalakote in respect of the suit land on the ground that he (decree-holder) had in fact purchased the same but with a view to defeating his right of pre-emption, had obtained the aforesaid compromise decree in collusion with the original owner of the same. The suit of the petitioner was dismissed by the trial Court vide its judgment and decree, dated 5-4-1978 but on appeal the said judgment and decree of the trial Court was set aside by the District Judge and the decree for possession by way of pre-emption of the suit land was granted in favour of the petitioner against the respondents on payment of Rs.500 as its sale price vide its judgment and decree, dated 31-10-1983.
4. Feeling aggrieved by the above judgment and decree of the District Judge, the respondents filed an appeal against the same before the High Court which amended the same to the extent that the amount payable as sale-price of the suit land by the petitioner to the respondents was enhanced from Rs.500 to Rs.28,000.
5. The petitioner filed an application for the execution of the above decree of the High Court, dated 9-10-1984 in the Court of Additional Sub-Judge, Rawalakote on 19-5-1985 during the pendency of which the respondents instituted a new suit against the petitioner in the said Court for the grant of declaration that their adverse possession on the suit land in the decree sought to be executed by the petitioner had matured into ownership and also prayed for the cancellation of the decree for possession passed by the Sub-Judge, Rawalakote on 23-4-1966. In the above suit the respondents also filed an application for staying the proceedings in the application of the petitioner for execution of the above-mentioned decreee of the High Court till the decision of the suit. The executing Court, accepting the above prayer of the respondents stayed the execution proceedings vide its order, dated 1-7-1986. Hence this revision petition.
6. I have heard the learned counsel for the parties and have also gone through the record of the case. It has been contended by the learned counsel for the petitioner that the executing Court has erred in staying the proceedings in the application of the petitioner for execution of a decree granted in his favour by the High Court as the suit for adverse possession of the respondents was not maintainable on account of their having not raised the plea of adverse possession on the suit land in the previous litigation between the parties which ended up in the passing of the decree for possession sought to be executed by the petitioner. It is further contended by the learned counsel for the petitioner that the impugned order is unlawful also on the ground that the respondents have prayed for the cancellation of the decree of the District Judge, dated 31-10-1983 in their suit in which the said order has been granted but the petitioner had sought the execution of the decree passed by the High Court in his application for execution of the same.
7. On the other hand, it has been contended by the learned counsel for the respondents that the Additional Sub-Judge, Rawalakote was quite competent to pass the order impugned in this revision petition as it had the powers to do so under Order XXI, Rule 29 of the Code of Civil Procedure. It is further contended by him that there was no legal impediment in the way of the respondents to institute a fresh suit for the grant of declaration that their adverse possession on the suit land had matured into ownership after passing of the pre-emption decree in respect of it in favour of the petitioner and as such the previous litigation between the parties does not constitute any bar to staying the proceedings in an application of the petitioner for the execution of said decree.
8. I have given my due consideration to the above arguments of the learned counsel for the parties in the light of the record of the case after which I am of the opinion that in the facts and circumstances of the present case, the proceedings in the application of the petitioner for execution of a decree for possession granted by the High Court should not have been stayed by the Additional Sub-Judge which after doing so had committed material irregularity by ignoring the recognized principles of law governing the issuance of ad interim injunction or stay order. It is now settled law that the stay order or ad interim injunction can only be issued if the parties to the suit seeking the same has a good prima facie case, would suffer irreparable loss in the event of the same being refused and that the balance of convenience is also in favour of granting it. But in this case none of the above pre-requisite condition is satisfied, what to speak of all of them being fulfilled.
9. As regards existence of a prima facie case of the respondents in the suit on the basis of which the staying of execution proceedings was sought, it in my opinion, is doubtful whether the relief prayed for in the said suit can be granted to the respondents in view of the previous litigation between the parties. The decisions in the former suits one filed by the respondents and the other by the petitioner, prima facie, bar the present suit of the respondents for declaration of their adverse possession on the suit land between the parties on account of applicability of doctrine of constructive res judicata. The respondent& predecessor-in-interest had instituted a suit against the original owner of the suit land in the Court of Sub-Judge Rawalakote for a declaration to the effect that he had purchased the same, in the said suit, from them and accordingly obtained a compromise decree prayed for on 23-4-1966. In the said suit the respondents suit land in the alternative and had sought the declaratory decree on the basis of his title of the same. After passing of the above decree, the petitioner had filed a suit for possession of the suit land by way of pre-emptionainst the respondents on the ground that the compromise decree, dated 23-4-1966 granted in favour of the respondents was in effect amounted to the sale-deed and the same was obtained in collusion with the owners of the suit land in order to defeat his preferential right to purchase the same. In this pre-emption suit, the respondents did not take up the defence that they are in adverse possession of the suit land which had matured into ownership and ultimately the decree prayed for was granted in favour of the petitioner by the High Court vide its judgment and decree, dated 9-10-1984. The respondents might and ought to have raised the plea of their adverse possession on the suit land as a ground of attack in their former suit and as a ground of defence in the suit for pre-emption filed by the petitioner against them but they did not do so with the result that, prima facie, they are debarred from claiming their adverse possession on the suit land in their present suit pending between the parties in which prayer for staying the execution proceedings initiated by the petitioner for possession of the land in execution of the decree passed in his favour against the respondents, was made, as the doctrine of constructive res judicata appears to be attracted in it.
10. Similarly irreparable loss will not be caused to the respondents in the event of their prayer for staying the execution proceedings is refused till the decision of their suit filed against the petitioner.
If the possession of the suit land is delivered to the petitioner in execution of the decree for possession granted in his favour against the respondents but later on the decree, as prayed for by him in his present suit, is passed, the respondents would be legally entitled to the restitution of possession of the suit land under section 144, C.P.C.
11. In view of the above legal position, the respondents would not suffer any irreparable loss in case the decree for possession passed in favour of the petitioner is executed by the executing Court and the possession of the suit land is delivered to him inasmuch the possession of the same would be restored to them in the event of their obtaining the decree being sought by them in their suit pending in the Court of Additional Sub-Judge Rawalakote between the parties in view of whose pendency they had prayed for staying the execution proceedings of the said decree granted in favour of the petitioner. My above view finds support from PLD 1976 Kar. 1918, PLD 1965 Lah. 374, PLD 1981 Kar. 82 and PLD 1970 Kar.
220.
12. So far as the balance of convenience is concerned, it is also, in the circumstances of the case, in favour of not staying the proceedings in an application for execution of a decree for possession filed by the petitioner against the respondent. The petitioner had succeeded in obtaining decree for possession of the suit land by pre-emption after the prolong litigation which spread over a period of about 18 years. The respondents have resisted their claim upto the Supreme Court which finally dismissed their application on 8-2-1986 for the review of its judgment dismissing their application for leave to appeal against the judgment and decree of the High Court, dated 9-10- 1984 which is now being sought to be executed by the petitioner in his application for execution before the executing Court. The final decision of the presently pending suit between the parties may take many more years in view of which fact the balance of convenience appears to be in favour of refusing to stay the execution proceedings in an application of the petitioner for execution of a decree finally passed in his favour against the respondents after a long period of litigation.
13. Before concluding the case, it appears appropriate to mention here that the respondents have sought the issuance of an injunction for staying of execution proceedings under discussion by way of an application in the suit filed by them against the petitioner and some other persons but the impugned order has been made in an application filed by the petitioner for execution of the decree for possession against the respondents. It shows that the Additional Sub-Judge had passed the impugned order in a very casual and hasty manner without applying his mind to the merits of the case.
14. For the aforementioned reasons, the order of the Additional Sub-Judge, Rawalakote, dated 1-7- 1986, staying the proceedings in an application of the petitioner for the execution of a decree passed in his favour against the respondents, is set aside and he is directed to proceed in the said application in accordance with law. The respondents shall bear the costs of this application.