1. ' This is an application under Order XII, Rule 5 of the Civil Procedure Code, 1908 filed on behalf of appellants with the prayers that the execution of the impugned decree be stayed and its operation be also suspended till decision of this first appeal, which has been admitted for regular hearing.
2. ' I have heard Mr. Issardas Pirthiani, Advocate for appellants and Mr.Abdul Ghafoor Bhurgri, Advocate for respondent. It is argued by the learned counsel for the appellants that the impugned judgment/decree passed by learned Senior Civil Judge, Mehar suffers from legal infirmities and is contrary to the evidence. He has further argued that the determination of market value of the land- in-question was wrongly assessed by the learned trial Court. In the end, it was contended that the suit was barred by the provisions of Land Acquisition Act, 1894. On the other hand, Mr. Abdul Ghafoor Bhurgri, Advocate for respondent has vehemently opposed this application on the ground that the impugned judgement and decree are legal and according to the record and that the same cannot be stayed or suspended, unless some security as provided in Rules 5 and 6 to Order XLI, C.P.C. Is deposited oil behalf of the appellants. He has referred to the case of M/s. Bundial Bus Servide v. Mst. Sanjeeda Afzal and others 1975 SCM R 203, Sadiq Sayeed Khan and another v. Central Government and others 1986 SCMR 1147(1), and the recent case M/s. Shafsal Enterprises, Government Contractors v. Province of Punjab and two others 1995 SCM R 708.
3. ' The first two reported cases referred by Mr. Abdul Ghafoor Bhurgri were considered in the last cited case Shafsal Enterprises (supra) where a Full Bench of the Honourable Supreme Court declined to suspend the execution of the order of the learned Trial Court and observed that if the respondent deposits the amount awarded by the arbitrator and made rule of the Court within three months, the appellant shall be entitled to withdraw the amount on furnishing security for refund. The case of M/s. Bundial Bus Service is not relevant for the purpose of deciding this application as in the said reported case Government was not a party. Likewise, there is no discussion on the facts of the case in Sadiq Sayeed Khan, therefore, it is difficult to ascertain whether facts of the reported case are similar to the case in hand. The moot question which requires consideration is that while staying execution of a decree or while suspending operation of a decree passed against a Government whether any condition of security can be imposed. The answer could be found in the Order XXVII, Rule 8-A of C.P.C. Which is reproduced as under:-- "8-A. No security to be required from Government or a public officer in certain cases.
4. ' No such security as is mentioned in rules 5 and 6 of Order XLI shall be required from the Government or, where the Government has undertaken the defence of the suit, from any public officer sued in respect of an act alleged to be done by him in his official capacity."
5. The above provisions of rule 8-A envisages one of such situations where a Judgment-debtor is Government and seeks relief as provided in Order XLI, Rules 5 and 6, C.P.C. Then no security would be required from it. This view is supported by the case of Haji Banaris Khan and others v. Central Government and another 1986 SCM R 1805 which was decided by a larger Bench than the case of Sadiq Sayeed Khan (supra). In this reported case the Hon'ble Supreme Court declined to grant leave to appeal to the decree-holders of a case arising out of compensation awarded under the Land Acquisition Act and upheld the decision of the Judges of Lahore High Court which allowed the respondent's application for the stay of execution in the following manner:-- "As far the recovery of the excess amount is concerned we would stay the execution proceedings for a substantial loss is likely to cause to the judgment-debtor/appellant if the execution of the impugned decree is not stayed. Further, the judgment-debtor/appellant is a Government and there is likely to be faced no difficulty in the recovery of the amount from it in case of the failure of the appeal and the maintenance of the impugned decree. Further, no such security as mentioned in Rules 5 and 6 of the Order XLI shall be required from the Government for which a reference may be made to Order XXVII, Rule 8-A, C.P.C."
6. ' The case of Haji Banaris Khan was followed by a Division Bench of Lahore High Court in Province of Punjab v. Muhammad Jamil PLD 1992 Lahore 300. It was a case where compensation was awarded to the respondent under the Land Acquisition Act, 1894 by a Civil Judge of Lahore against which Federation of Pakistan and Province of Punjab filed two separate appeals and sought suspension of operation of the judgment and decree passed by Civil Judge, Lahore through interlocutory applications. It was argued on behalf of appellants that the operation of the judgment and decree in appeal could be suspended without requiring the appellants to furnish security and reliance was placed on Order XXVII, Rule 8-A. This plea was opposed by the decree-holder by urging that the two decrees were money decrees and suspension could not be ordered without depositing the decretal amount or on furnishing bank guarantee. A learned Division Bench of Lahore High Court stayed the execution of the decree and held as follows:-- 'According to rule 8-A of Order XXVII, no such security as is mentioned in Rules 5 and 6 of Order XLI shall be required from the Government, or, where the Government has undertaken the defence of the suit, from any public officer sued in respect of an act alleged to be done by him in his official capacity. We feel that rule 8-A of Order XXVII of the Code of Civil Procedure is fully applicable to the case before us and, therefore, operation of the impugned decree can be suspended thereunder without obliging the petitioners to furnish security. This view is supported by dictum of the Supreme Court, in Haji Banaris Khan and others v. Central Government through Secretary, Defence and Military Estate Officer and another 1986 SCM R 1805."
7. In this appeal, besides the Provincial Government, Executive Engineer, Road Division, Dadu and Land Acquisition Officer, Buildings and Roads, Hyderabad are the remaining appellants/judgment- debtors. It is their case that impugned judgment is contrary to the record of the case and the amount of damages awarded is exorbitant; that unless stay as prayed is granted they shall suffer substantial losses; that there exists reasonable possibility that this appeal may succeed. In my view, even if this appeal is dismissed, the respondent could easily recover the decretal amount from the appellants. The maintainability of the suit is also under challenge in this appeal. For all such reasons, I see substance in this application and suspend the operation of the impugned decree without calling upon the appellants to furnish security. However, in view of the tact that the land in-suit was obtained by the appellants without recourse to the provisions of Land Acquisition Act, for which the respondent was deprived of their immovable property, I direct that this first appeal be fixed for regular hearing within three months. Office is further directed to fix this first appeal at Serial No,1 in the cause list after motion cases. If this appeal is not disposed of within three months due to any act which can be attributed to the appellants in delaying the hearing of this appeal, then the respondent would be entitled to repeat this application.