Munir A. Sheikh, J.- This second appeal has arisen from a suit for possession of land through pre- emption filed by the respondent against the appellants which was decreed by the learned trial Court through judgment and decree dated 29,6.1987 on the ground that the respondent being collateral as also co-sharer in the khata had superior right of pre-emption. This judgment and decree was assailed by the appellants in appeal before the learned Addl: District Judge, Kasur, which has been dismissed through judgment and decree dated 5.12.1987.
2. Learned counsel for the appellants submitted that according to the law declared by the Supreme Court the suit could not have been decreed as no decree at any stage of the proceedings was passed in favour of the respondent before 31.7.1986. He maintained that no talabs were made according to Islamic Injunction by the respondent before filing the suit.
3. Learned counsel for the respondent frankly conceded that according to law declared by the Supreme Court the suit could not have been decreed as admittedly no tabals were made before filing the suit. He, however, raised an objection that this appeal is not competent because with the memo of appeal the appellants have not appended certified copy of the decree-sheet of the learned trial Court.
4. The objection of the leared counsel for the respondent is [devoid of any force. The provisions of Order 42 CPC regulate the procedure for filing second appeal. According to Order 42 provisions of Order 41 Rule 1 CPC have been made applicable for second appeal with the addition [that in addition to copy of the decree appealed against a copy of the judgment of the learned trial Court is also required to be appended with the appeal.
5. Learned counsel for the respondents submitted that since the appeal before the learned lower appellate Court was dismissed, therefore, the decree of the learned trial Court which was kept intact would be the decree which shall be the decree appealed against, therefore, copy of the decree-sheet of the learned trial Court was required to be appended.
6. I am afraid the argument cannot be accepted without doing violence to the provisions of Order 41 Rule 1 and Order 42 CPC. It is correct that for certain purpose i.e, execution, the decree of the learned trial Court is the decree which is to be executed where the appeal without amendment' in the said decree is dismissed by the learned lower appellate Court. But for the purposes of filing second appeal the judgment and decree appealed against is the judgment and decree passed by the learned lower appellate Court, copies of which are required to be appended with the memo of appeal. The intention is further clear when it has been provided in Order 42 that in addition to that judgment of the learned trial Court shall also be appended with the memo of appeal. If the interpretation of learned counsel for the respondents is accepted, there was no need for enacting a provision separately in Order 42 CPC for appending copy of the judgment of the learned trial Cout with the memo of appeal. In the present case with the memo of appeal copies of judgments of both the Courts below as also copy of decree-sheet by the learned lower -appellate Court have been appended. The appeal is duly constituted and competent. The objection of the learned counsel for the respondent is repelled.
7. Admittedly there were no talabs made before filing the suit and no decree was passed at any stage of the proceedingts before 31.7.1986, therefore, according to law declared by the Supreme Court no decree could be passed in favour of the respondent, after 31.7.1986, for the above reasons.
The impugned judgments and decrees passed by the Courts below are illegal,, void and cannot be sustained. The appeal is accepted, the impugned judgments and decrees of both the Courts below are set aside and the suit filed by the respondent is dismissed without any order as to costs.