' ABDUL QADEER CHAUDHRY, J.---This appeal by leave of the Court is directed against the judgment of the High Court dated 31-10-1992 to consider the effect of section 2(a)(c) of West Pakistan Muslim Personal Law (Shariat) Act (Amendment) Ordinance, 1983 (hereinafter referred to as an Act).
2. The facts in brief are that Khuda Bakhsh, predecessor-in-interest of the appellants filed a suit for declaration that the gift of suit land measuring 84 Kanals 6 Marlas made by Khanjar Khan, deceased in favour of Falak Sher, respondent No,2 by means of Mutation No,392 dated 1-2-1966 was illegal and against the custom and thereby void and ineffective on the right of plaintiffs. The suit on contest was decreed by the learned Civil Judge, Jauharabad on 21-3-1969. Mst. Niaz Bibi and Falak Sher, respondents filed an appeal against the judgment and decree of the trial Court, but the appeal was dismissed on 20-6-1969. The respondents thereafter filed a second appeal before the High Court on 30-9-1969. The learned High Court by impugned judgment dated 31-10- 1992 held that the suit of the appellants was based on custom and it stood abated by virtue of section 2 of the Act.
3. The learned counsel for the appellants submitted that the High Court had not stayed the execution proceedings. The petitioner obtained the possession of the suit land on 6-12-1969, therefore, it was a past and closed transaction. No effect could be given to section 2 of the Ordinance because this Ordinance was promulgated on 1-8-1983 and it specifically provided that it shall not be applicable to transactions past and closed. In order to appreciate the contention of the learned counsel we reproduce hereinbelow section 2(a) of the Ordinance:--- "2-A. Succession prior to Act IX of 1948.---Notwithstanding anything to the contrary contained in section 2 or any other law for the time being in force, or any custom or usage or decree, judgment or order of any Court, where before the commencement of the Punjab Muslim Personal Law (Shariat) Application Act, 1948, a male heir had acquired any agricultural land under custom from the person who at the time of such acquisition was a Muslim:-
(a) he shall be deemed to have become, upon such acquisition, an absolute owner of such land, as if such land had devolved on him under the Muslim Personal Law (Shariat) Act;
(b) any decree, judgment or order of any Court affirming the right of any reversioner under custom or usage, to call in question such an alienation or directing delivery or possession of agricultural land on such basis shall be void, in executable and of no legal effect to the extent it is contrary to the Muslim Personal Law (Shariat) Act;
(c) all suits or other proceedings of such a nature pending in any Court and all execution proceedings seeking possession of land under such decree shall abate forthwith: ' Provided that nothing herein contained shall be applicable to transactions past and closed where possession of such land has already been delivered under such decrees."
4. According to sub-clause (c) all suits and others proceedings shall abate provided that it shall not be applicable to transactions past and closed where possession of such land has already been delivered under such decree. The learned counsel stated that the decree was granted in favour of the appellants by the trial Court and that decree was confirmed by appellate Court. There was no stay from the High Court. The appellants obtained possession of the land before the promulgation of the Ordinance, therefore, no effect could be given to clause (c) of section 2-A of this Ordinance.
This contention has no force. The decree was under challenge before the High Court. The appeal was in continuation of the original suit and unless the appellate Court finally decides the matter it cannot be said that the delivery of possession would nullify the provisions of the Ordinance. The Ordinance is to be read as a whole and spirit of the Ordinance cannot be ignored, while interpreting sub-clause (c) with its proviso. It is immaterial if no stay was granted by the High Court. The High Court had entertained the appeal and the same was pending for final adjudication.
5. The learned counsel has referred to Abdul Ghafoor etc. v. M. Shafi etc. (PLD 1985 SC 407) in support of his contention that when the decree has been executed by delivery of possession then it amounts to past and closed transactions. He has referred to certain observations of this Court made, as at pages Nos.423 and 424 of the Report point is relevant and it reads as under:--- "(n) In yet another eventuality neither of the two foregoing postulations might be strictly relevant. It can be illustrated by visualising a decree, setting aside an alienation covered by sub-clause (b) of section 2-A, having already been passed and the same being under challenge in appeal. If the appellate Court had not issued any order staying the execution and accordingly it was executed during the pendency of appeal and the possession also delivered; but notwithstanding the execution the pendency of appeal will keep the dispute alive and it (execution) will remain subject to the result in appeal, a further appeal or revision, if competent. The execution of the decree per se notwithstanding the provision contained in clause (c) might not cause the abatement of the appeal. In such a case the execution of decree and delivery of possession would be subject to and controlled by the provisions of the C.P.C. Relating to the restitution on acceptance of appeal."
It has been specifically stated that if the decree had been executed during the pendency of appeal and the possession also delivered but the pendency of the appeal will keep the dispute lying alive.
In such a case the execution of the decree and delivery of possession would be controlled to the provision of C.P.C. In the instant case the appeal was pending, therefore, the delivery of possession would be immaterial.
6. There is another aspect of the case. According to Section 2(a) where before the commencement of Punjab Muslim Law (Shariat Application) Act, 1948, a male heir had acquired any agricultural land under custom from the person who at the time of such acquisition was a Muslim, he shall be deemed to have become an absolute owner of such land. Khanjar Khan, the donee, therefore, was absolute owner of the land, he had full authority to alienate the same.
7. This appeal has no force, the same is dismissed with no order as to costs.