1. ' WALI MUHAMMAD KHAN, J.---This appeal through leave to appeal has arisen out of a pre-emption suit brought by the appellant against the respondents on 21-8-1983, wherein an ex parte decree was passed against them on 18-7-1985. Respondent No,2 did not agitate against this decree, rather withdrew his share of the sale price deposited in the Court by the decree-holder. Respondent No,1 however, moved an application for setting aside the ex parte decree, which was allowed and the decree set aside. Accordingly, he filed a written statement and contested the suit; while it was at the evidence stage he filed an application under Order VII, rule 11, C.P.C., and sought the rejection of the plaint on the basis of the law laid down by this Court in Government of N.-W.F.P. Through Secretary, Law Department v. Malik Said Kamal Shah (PLD 1986 SC 360) and Sardar Ali and others v.
2. Muhammad Ali and others (PLD 1988 SC 287). The learned Civil Judge took the view that, as the appellant did not assert the three "Talabs" in the plaint required by the Islamic Jurisprudence, the trial could not proceed as no decree could be passed. District Judge declined to interfere with this dismissal. The appellant then invoked the revisional jurisdiction of the High Court, but the learned Single Judge maintained that, according to the law laid down by this Court, the Punjab Pre- emption Act, 1913, had become unworkable as a whole the suit was no longer sustainable. Thus, by a short judgment dated 19-6-1990 he dismissed the revision. The appellant's move for review of this order also falied.
3. The leave granting order is to the following effect:-- "Learned counsel for the ptitioner has submitted that the judgment in Mst. Aziz Begum's case has neither reversed nor modified the rule laid down by this Court in Sardar Ali's case (PLD 1988 SC 287) that a plaintiff who has obtained a decree for pre-emption in the trial Court before 31-7-1986 which decree has been set aside by the Appellate Court can, while pressing his further appeal before higher forum, defend the decree granted in his favour before 31st July, 1986 and seek its restoration on the basis of the pre-existing law."
4. ' The learned counsel for the appellant cited the latest authority of this Court in case Rozi. Khan v.
5. Karim Shah (1992 SCM R 445) and submitted that the pre-emption cases in which decree for possession has been passed prior to 1-8-1986, further proceedings relating thereto shall be governed and decided under the provisions of the old Act and the provisions of the new Act could not be attracted. This judgment, no doubt, was delivered in cases relating to the Province of N.- W.F.P. And were decided under the since repealed N.-W.F.P. Pre-emption Act, 1950 substituted by North-West Frontier Province Preemption Act (X of 1987), as there had been some confusion with regard to the interpretation of section 35 of the new Act qua its application in the light of the judgment in Said Kamal Shah's case and after analysing and interpreting the wording of section 35 in the light of principles laid down in Said Kamal Shah's case in obedience to which a new Act was promulgated, it was held as under:-- "In the light of the foregoing, the effect of the provisions of section 35 of the new Islamic Law of Pre- emption, in our opinion, is that if at the time of the enforcement of the Islamic Law of. Pre-emption (i.e, 1-8-1986 when the principles of the Islamic Common Law became applicable in the absence of any statutory law or after 28-4-1987 when Act X of 1987 was promulgated) a final decree in the sense explained above (namely a decree in favour of the plaintiff/pre-emptor decreeing the suit for pre-emption) had already been passed and an appeal against it was pending (which is a further proceeding relating to the case in which the decree was passed), the said further proceedings shall be governed and decided under the provisions of the old Act (N.-W.F.P. Pre- emption Act, 1950) and the provisions of Act X of 1987 would not be attracted. Similarly, if a final judgment (decreeing the suit of the plaintiff/pre-emptor) had been passed before the aforesaid dates and the said judgment was being challenged before the revisional Court or the High Court in its writ jurisdiction such proceedings too shall be governed by and decided under the provisions of the old Pre-emption Law enacted in the 1950 Act."
6. ' 'The Punjab Pre-emption Act, 1913 (Act I of 1913) was also repealed through Punjab Pre-emption Act, 1991 (Act XI of 1991) on 6-4-1991 and it would be profitable to reproduce section 34 thereof which is more or less, identical to section 35 of the new N.-W.F.P. Pre-emption Act, 1987.
7. "34. Repeal of Act I of 1913.--(1) The Punjab Pre-emption Act, 1913 (I of 1913) is hereby repealed.
(2) Notwithstanding anything contained in this Act, in the cases and appeals filed under the Punjab Pre-emption Act, 1913 (I of 1913) in which judgments and decrees had been passed before the 1st day of August, 1986, further proceedings if any relating to such cases and appeals shall notwithstanding the repeal of the said Act be governed and continued in accordance with the provisions thereof."
8. On the touchstone of reasoning advanced in Rozi Khan's case, the decrees passed in favour of pre- emptors before 1-8-1986 are protected from the effect of Said Kamal Shah's case and all the further proceedings in connection therewith are to be governed and decided under the provisions of the old Act (I of 1913). In the instant case, decree in favour of the pre-emptor, though ex parte, was passed on 18-7-1985 and as such the further proceedings for the setting aside thereof and the subsequent trial after its setting aside shall be governed by the Punjab Pre-emption Act of 1913 as if it had not been repealed.
9. The learned counsel for the appellant argued that the decree passed on 18-7-1985 was ex parte and not equated with a decree passed in favour of the pre-emptor after contest by the vendees/defendants. We are afraid, the submissioon is not legally entertainable. There can be no difference between a decree passed after contest and a decree passed ex parte as both are decrees as defined in subsection (2) of section 2 of C.P.C. And are executable.
10. ' In view of what has been stated above, we accept the appeal and set aside the judgments of the lower forums and remand the case back to the trial Court for decision according to law. There shall be no order as to costs.