' MUHAMMAD MUNIR KHAN, J.---This petition for leave to appeal is directed against the judgment of the Peshawar High Court, Branch Registry D.I. Khan, dated 7-5-1994.
2. The facts of the case, briefly stated, are that the dispute between the parties relate to shop No, 7/13-A with Balakhana, situate in Tanchi bazar, Bannu. This property was in the possession of Muhammad Rashid Khan (respondent No, 1) in the year 1960 when Sharifullah the predecessor- ininterest of the petitioner and respondents Nos. 2 to 4 purchased it for Rs, 5,500 through auction.
P.T.O. Was accordingly issued on 21-11-1960 in his name. Challenging the transfer of shop in favour of Shairfullah, the respondent No, 1 Muhammad Rasheed Khan offered to pay the reserved price of Rs,8,640 which was accepted by the Settlement Authority. Subsequently, the Settlement Commissioner, vide his order dated 10-1-1964 directed reauction of the disputed property. During the reauction, Muhammad Rasheed Khan, respondent No, 1, offered highest bid of Rs,21,000 which was accepted and subsequently approved. Feeling aggrieved thereby, Sharifullah challenged the reauction of the disputed property in favour of Muhammad Rasheed Khan (respondent No, 1) and also filed suit for possession, in the Court of Senior Civil Judge. The suit was decreed on 6-1-1973.
The appeal against this judgment and decree was dismissed by the learned District Judge, Bannu.
Sharifullah then filed execution petition and the possession of the property in dispute was delivered to him by the bailiff in the year 1984. Besides civil litigation, the parties had also approached the Settlement Authorities. The dispute with regard to the claim to the disputed property was finally determined by the Supreme Court vide its order dated 23-4-1991. The Supreme Court had allowed the claim of Muhammad Rasheed Khan to the disputed property subject to the payment of proportionate auction price which has been paid by him.
3. After the decision by the Supreme Court, Muhammad Rasheed Khan approached the Civil Court/Senior Civil Judge for the restitution of the disputed property to) him, under section 144 read with section 47/151 and Order XXI, C.P.C., who vide order dated 20-5-1992 accepted the application directing Sharifullah to restore the possession of the disputed property. The learned Senior Civil Judge also declared Muhammad Rasheed Khan entitled to recover mesne profits from Sharifullah, from the date of the delivery of the property to him till its restitution. Sharifullah filed an appeal against this order which was dismissed by the learned Additional District Judge, Bannu, on 29-1- 1994. Feeling aggrieved thereby, Sharifullah filed Revision Petition before the Peshawar High Court, Branch Registry Dera Ismail Khan. The High Court vide its judgment dated 7-5-1994, on the basis of statement of respondent No, 1 and his counsel partly accepted the revision to the extent of the recovery of the mesne profits. The order of the restitution of the property in dispute to Muhammad Rasheed Khan was, however, upheld.
4. Learned counsel for the petitioner mainly contended that the learned Senior Civil Judge could not have invoked the provisions of section 144 and section 47, C.P.C. And Order XXI, C.P.C. For the restitution of the disputed property which was delivered to the petitioner in execution of the decree passed in a suit.
5. We have considered the submission made by the learned counsel in the light of the circumstances of this case.
6. In the instant case, the respondent No, 1 was deprived of the possession of the disputed property in execution of a decree passed by learned Senior Civil Judge, Bannu. The Supreme Court subsequently, found that the respondent No, 1 was entitled to the disputed property subject to payment of auction price. The auction price has been paid by the respondent No,
1. It was on the strength of the final order dated 23-4-1991 passed by the Supreme Court that the learned Senior Civil Judge has ordered the restitution of the property to respondent No,
1. The order of the learned Senior Civil Judge has been upheld by the learned District Judge and also by the High Court vide impugned order. So, it is a case of "URDU TEXT" .In this view of the matter, we do not feel inclined to exercise our constitutional discretion under Article 185(3) of the Constitution in aid of the petitioner.
We feel that interference with the order of the restitution of the property is likely to perpetuate an injustice. It is by now well-settled that while exercising the constitutional jurisdiction of this Court the paramount consideration should be whether interference with the order which suffers from some legal infirmity will advance the cause of justice or would it perpetuate an injustice.
Furthermore, in the peculiar circumstances of the case, learned Senior Civil Judge, in exercise of the inherent jurisdiction under section 151, C.P.C. Of the Civil Court, was quite competent to direct the restitution of the property to respondent No, 1.
7. Accordingly, leave to appeal is refused and the petition is dismissed. However, on the request of the learned counsel for the petitioner, we allow one month's time to the petitioner for handing-over vacant possession of the disputed property to Muhammad Rasheed Khan (respondent No, 1).