MALIK MUHAMMAD QAYYUM, J.---This is an application under Order XLVII, Rule 1 of the Code of Civil Procedure seeking review of the order dated 18-9-1996 whereby the petitioner's appeal against an order passed by the executing Court accepting objection petition of the respondents was dismised on the ground that the petitioner had failed to comply with the mandatory provisions of Order XLIII, Rule 3 of the Code of Civil Procedure as no notice has been sent to the respondents before filing the appeal.
2. Two pleas have been raised by Mr. Asadullah Siddiqui, Advocate in support of this review petition first of which is that the order challenged in appeal had been passed in execution of the decree and not in the suit and, as such, Order XLIII of the Code of Civil Procedure had no applicability and secondly that in any case as the proceedings between the petitioner and the respondents had come to an end by acceptance of the objection petition, the order cannot be held to be interlocutory in nature.
3. No one has appeared for the respondents, therefore, they are proceeded against ex parte.
4. There is merit in the contentions of the learned counsel for the petitioner that as the order impugned in the appeal had been passed in an execution petition and not a suit,Order XLIII, Rule 3 of the Code of Civil Procedure had no applicability as is evident from the wording of the provision itself which clearly mentions that in order to attract rule 3 of Order XLIII, C,P.C. An order should have been passed during the pendency of the suit. The execution proceedings are quite distinct and separate from the suit and therefore, do not fall within the mischief of rule 3 of Order XLIII of the Code of Civil Procedure.
5. The other contention raised by me learned counsel for the petitioner is equally well-founded. The petitioner was the decree-holder who had applied for execution of the decree passed against the predecessor-in-interest of the respondents. The objection petition submitted by the respondents against the attachment of the property was finally decided by the trial Court which accepted it.
That order being conclusive of the rights of the parties cannot be said to be interim or interlocutory in nature as the objection petition did not remain pending after the decision by the trial Court. In view of the above we allow this application and set aside the order dated 18-9-1996 passed by the learned Single Judge. The appeal be listed for hearing before an appropriate Bench.