' SARDAR MUHAMMAD RAZA KHAN, C.J.---Haji Mohibullah and Noor Hameed, through this petition under Article 199 of the Constitution, have called into question the progress of an execution proceedings against the petitioners.
2. Sheikhul Islam plaintiff, on 16-12-1996 had obtained a decree against the present petitioners alongwith special costs of Rs,5,000, to the effect that a timber of the kind known as "Kandal' of the value of Rs,2,80,000 at the rate of Rs,187 per Cft. Shall be delivered by the petitioners to the decree- holder at Timergara. This decree having not been appealed against had become final.
3. The judgment-debtors went in revision before the High Court, where Hon'ble Mr. Justice Jawaid Nawaz Gandapur, as he then was, while dismissing the revision in limine, made an observation that the judgment-debtors shall deliver and the decree-holder shall take the timber from Depot Lot No. 245 at Chakdara.
4. The instant writ petition is based on the ground that the timber practically cannot be delivered at Timergara and hence the execution cannot proceed unless the judgment-debtor receives the same from Depot Lot No.245 at Chakdara and that too when the auction of timber is allowed by Government. If we concede to the above points of the learned counsel, it would mean that the decree cannot be satisfied for an indefinite period. This was an utter mala fide which got pronounced when the learned opposite counsel asked the petitioners to file an affidavit, if, at all, they own any timber, even at Chakdara and if, at all, there is any timber lying at Chakdara. No such affidavit could be furnished.
5. Coming to the observation of the learned Single Judge of this Court in his judgment, dated 19-3- 1999, it may be held without fear of contradiction that it was not a finding but a mere observation given to the utter detriment, of the opposite-party which was not before the Court. Moreover, it amounted to a substantial change in the nature of the decree which had already become final and which could never be changed in a revision petition filed in consequence of execution proceedings. The observations are void and without jurisdiction, and are set aside accordingly.
6. Consequently, the writ petition is based on sheer mala fides and is hereby dismissed in limine alongwith C.M. No. 2328 of 1999.