This appeal is directed against the judgment of the learned Additional District Judge, Gujranwala dated 13-5.70 by which he affirmed the judgment of the Administrative Civil Judge, Gujranwala dated 18-10-68 allowing restoration of the suit land to the respondents on the bass of the decree of the Supreme Court dated 15-2-1967.
2. The facts relevant to this appeal are that the sale of the suit land by Muhammad Din and others in favour of one Muhammad Yusuf was preempted by two pre-emption suits, one filed by Muhammad Anwar Khan, vendor's brother and the other by Suba Khan, predecessor of the present appellant. The two suits, however were not consolidated. The suit filed by Muhammad Anwar Khan was decreed by the consent of the parties. This decree was passed behind the back of Suba Khan and without impleading him as a party. Suba Khan, however, in his suit, which was still pending when decree in favour of Muhammad Anwar Khan was passed impleaded the latter as respondent The trial Court decreed Suba Khan's suit. The decree of the trial Court was reversed by the 1st Appellate Court, which upheld the consent decree passed in favour of Muhammad Anwar Khan.
Suba Khan's second appeal in this Court succeeded and his suit was again decreed by judgment of this Court dated 26-10-61. Muhammad Anwar and Din etc, the vendees, were granted leave to appeal to the Supreme Court on 7-5-62. Their appeal ultimately was allowed on 15-2-67. The decree passed in favour of Muhammad Anwar Khan, was thus restored and the decree in favour of Suba Khan passed by this Court on 26-10-1961 was set aside. Suba Khan, in the meantime. In execution of this Court's decree dated 26-10-19bl bad obtained possession of the suit land. During the pendency of the proceedings in the Supreme Court Suba Khan (present appellant's father) died on 29-5-1963. Muhammad Din etc. The vendees In the case then moved an application under section 144 read with section 151 for the restoration of possession by way of restitution. Muhammad Anwar Khan, successful pre-emptor under the decree of the Supreme Court dated 15-2-1967 had also deposited the pre-emption money and the same was withdrawn by the vendees He had to execute the decree against the vendees after the possession was restored to them. He was shown respondent in the application filed by the vendees. He did not contest this application but in his written statement he prayed for the delivery of possession to him. He was however advised to seek his remedy by resorting to the execution of his own decree against the vendee in an independent proceedings. The present appellant however, contested the application raising inter alia an objection that the decree of the Supreme Court based on its judgment dated 15-2-1967 having been passed against a dead person was a nullity and therefore possession could not be restored to the vendees on the basis of that decree. Since the learned counsel for the appellant has addressed arguments only on this aspect of the case. I need not take notice of other objections raised. The application filed by the respondent was allowed by the learned Administrative Civil Judge vide his judgment dated 18-10-1968 ordering the restoration of the possession to the respondents by way of restitution. This order has been upheld by the learned let Appellate Court by its judgment dated 13-5-1970. Hence this appeal.
3. I am informed that In implementation of the order dated 18-10-68 the vendee/respondents have been put into possession of the suit land on 2340-1968 and even a mutation in their favour had been sanctioned on 11-11-1968. The learned Advocate appearing for the appellant has further informed me that during the pendency of the appeal before the let Appellate Court, the appellant on 16-1-69, had also fled a miscellaneous application before the Supreme Court under Order XVII, rule 6 read with Order XLIX, rule 6 of the Supreme Court Rules, 1956 for recalling its judgment dated 15-2-67 and that the application in the submission of the learned counsel was rejected for the reason that the point in regard to the nature of the decree of the Supreme Court had been raised in the restoration proceedings. The learned Advocate, despite his repeated promises, has not produced the copy of the order of the Supreme Court.
4. The learned counsel appearing for the appellant argued that the views of the Courts below, that the decree and the judgment of the Supreme Court cannot be ignored even if passed against a dead person, are not correct. In his submission reference to the Privy Council decision on the proposition is not apt, as the Privy Council being a sovereign body, its decree could not be declared as nullity even if passed against a dead person. The decrees of the Privy Council are based on the prerogative of the Crown. He then argued that the provisions of Order XVI, rule 9 of the Supreme Court Rules (hereinafter referred to as the Rules) are mandatory and under this rule an application for bringing of record the legal representatives of the respondent, %ho dies during the pendency of the matter in the Supreme Court is to be made within 90 days of his death. He then referred to rule 7 of the same Order to contend that It is the duty of the appellant to make an application in that behalf and non-compliance of this rule, in the instant case, would render the decree of the supreme Court as nullity. Rule I of Order XII of 1956 Rules embodies that the provision of Order XLV of C. P. C. And of any rule made for the purpose by the High Court concerned so far as may be applicable shall apply in relation to appeal preferred to the Court under Articles 151 and 158 of the Constitution. After 1962 Constitution, rules 2 to 6 of order XII of the Supreme Court Rules of 1956 were deleted and rule 1 was recast, which provided that "No notice of motion in relation to a civil appeal under this order shall be entertained unless it is accompanied by a certified copy of the certificate granted by the High Court." The provisions of Order XLV of the Code of Civil Procedure were not applicable and, in any case, stood repealed on the principle, Expressio Unius Est Exclusion Alterius.
The two Courts below, therefore, in giving effect to the judgment of the Supreme Court could not rely on rule I 5 of Order XLV of the Cod--. He concluded that the principle that a decree against a dead person is nullity cad cannot be enforced in any proceedings is well established and the rule, also, appellant to judgments and decrees of the Supreme Court. He referred to Jung/1 Lail and others v. Ladda Bam Marwary (AIR 1919 Pat. 430), Ainud Din Be,::arl v. Banessa gdhi and another (PLD 1969 Dacca 658), Himangshu Bhusan Kar and others v. Miardndra Mohan Saha (AIR 1954 Cal.
205) and Moksed All Khan v. Katu Khan and others (PLD 1962 Dacca 690). In elaborating his submission that an implied repeal takes effect. He referred to Maxwell page 293 of the 12th Edition and Crawford (Pakistan reprint of 1974), page 234.
5. Learned counsel appearing for the respondents, however, argued that the provisions as to the abatement of matters pending before Courts do not apply to the proceedings pending before the Supreme Court. The Supreme Court may dismiss the appeal if the legal representatives of a party, who has died during the pendency of the proceedings are not brought on the record ; however, if the Supreme Court passed a decree notwithstanding the death of a party and without bringing his legal representatives on record, the decree will not be a nullity. In his submission the two Courts below have correctly relied on the provisions of Order XLV, rule 15 of the Code of Civil Procedure, which is in pari materia with the provisions contained in section 23 of the William IV, Chapter 41, which enacts that the order shall have full force effect notwithstanding the death of any of the party interested therein. He referred to Kalyani Pillap and others v. Thlrurenkataswamf (AIR 1924 Mad. 695) and Deonandon Frasad Singh v. Janki Singh etc, (AIR 1920 Pat. 89).
6. The rule that the decree against a dead person being a nullity, the executing Court, notwithstanding the principle that it cannot go behind the decree, can refuse to execute the same, may not pose much difficulty. I need not refer to all the cases cited by the learned counsel for the appellant is support of this proposition ; suffice it to say that most of the cases were considered in Ainud Din Beparl v. Banessa Bibi and another in which a Division Bench of that Court was of the view "We respectfully agree that if a decree is a nullity on account of the death of a necessary party before making of the decree, the trial Court acted without jurisdiction in making decree and Executing Court may refuse to execute such a decree."
This, however, does not solve the problem. The question whether the decree of the Supreme Court, if passed against a dead person should be ignored by the executing Court o: for that matter by this Court, does not seem to have been raised in any case. Reference was made to Muhammad Swaleh and another v. .Messrs United Grain & Fodder Agencies (PLD1964SC97) where at page 101 it was observed "It should be remembered that if an order be a nullity then every Court before whom it is brought is not only entitled, but bound to ignore it. Itbe held that the taking up of a case not on the date fixed, but on any other day, renders the proceedings totally void, the result world be that even the Court of a 3rd Class Civil Judge could hold that the High Court or the Supreme Court in taking up the case on a particular day without proper notice acted without jurisdiction and the judgment delivered was a nullity. The Civil Judge will be bound to go into this question because under section 44 of the Evidence Act the parties are entitled to show that a judgment or decree was passed without jurisdiction."
This rule does not apply to the proposition raised. It is one thing to say that the decree has been obtained by practising fraud on the Court and quite an other to say that the decree has bees passed against a dead person. In this very judgment and on the same page their Lordships observed ; "An order can under this section be attacked on three grounds and it is the assumption of the third ground that an exercise of jurisdiction may be illegal or irregular and yet the order passed may not be void and without jurisdiction. By merely showing therefore that an orderpassed was in violation of some provision of law or procedure, the t conclusion that the order is a nullity would not follow. It shouldfurther be shown that there was such a violation of some statutory ,nay, provision or principle of natural justice as would render the proceedings coram non judice- The point was raised in some of the cases regarding the decrees passed by the Privy Council against dead persons. In Kalyani Pillay and others v. Thiruvenkatask-ami Aipengar and another. It has beep held "Section 23 of William I`, Chapter 4,bliowever, cures the defect in the judgment ; for, it enacts that the order shall have full force and effect, notwithstanding the death of any of the parties interested therein."
A similar view was taken in Deonandan Prasad Singh v. Janki Singh and others at page 91, it has been observed thus : "I am unable to accede to the proposition that any Court in India can regard the order of the sovereign as a nullity. It has been held in Flood v. Egan (1893) 20 N S W R 337 that where, pending the hearing of the appeal, the respondent died and the Judicial Committee heard the appeal in ignorance of the death, and the appellant was recorded to pay costs, the Court below should refuse to ignore a decree of the sovereign in Council. The provisions of Will. 4, C. 41, S. 23, seem to furnish express statutory authority for this view."
This view, if accepted, even in regard to the decree by our Supreme Court, there remains no difficulty in upholding the judgments of the Courts below ; but, before forming any definite view, the arguments of the learned counsel that the decree of the Privy Council based on the prerogative of the Crown and being an act of the sovereign stands on different footing than the decree of the Supreme Court, shall have to be considered. According to him, cur Supreme Court exercises juri4diction as is conferred on it by or under the Constitution. He referred to Ex-Major-General Akbar Khan and another v. The Crown (PLD1954BC8). Their Lordships of the Federal court dealing with the question to grant leave to appeal in the exercise of prerogative right of the Crown notwithstanding the bar contained in section 10 of Rawalpindi Conspiracy (Special Tribunal) Act, 1951 have held thus : "However, this question is not o-- real importance in this case, for, the Privy Council (Abolition of Jurisdiction) Act, 1950, under which this Court has the power to grant special leave excluded in express words the prerogative of the Crown to grant special leave to appeal as far as Pakistan was concerned. Section 2 of that Act is as follows ; 'As from the appointed day, the jurisdiction of His Majesty-in-Council to entertain, and save as hereafter provided to hear and determine, appeals and petitions (hereinafter referred to as Pakistan appeals and Pakistan petitions) from, or in respect of, any judgment, decree or order of any Court or Tribunal (other than the Federal Court) In Pakistan, including appeals and petitions in respect of criminal matters,whether such jurisdiction is exercisable by virtue of His Majesty's prerogative or otherwise, shall cease." ;,.The exception made in this section was in respect of cases that had already been entered in the list of business of the Judicial Committee for the Eatser sittings of 1950, cases In which judgment had been delivered but the order in Council of His Majesty bad not been passed and oases which had been heard but the judgment or order in which was pending on the appointed day. Section 3 conferred on this Court the same jurisdiction which was being exercised by the King-in-Council in the prerogative right or otherwise in respect of cases of Pakistan. Therefore when the Act in question was passed the prerogative of the Crown was not in existence as far as Pakistan was concerned ; and the powers conferred on this Court constitute its ,, jurisdiction and cannot be termed the prerogative right, The royal , prerogative is defined in Keth's Constitutional Law thus s The Crown's prerogative may be defined, in Blackstone's words, with a slight modification as being that 'special pre-eminence which the King hath over and above all other persons, by virtue of the common law, but out of its ordinary course, in right of his royal dignity.
The Privy Council is often stated to exercise the residual prerogative of the Kiag-in-Council, but in form the appeal is to the King-in-1 Council, and the Privy Council does not itself grant or refuse leave but humbly advises the sovereign to exercise that power I whereas this Court exercises that power itself."
The decrees by the Supreme Court, therefore, cannot be said to be the act of the sovereign or based or' the prerogative of the Crown. This may be so. The closer scrutiny of the cases cited.
However, would show that sanctity to such a decree of tae Privy Council is not merely because the same is passed in the exercise of the prerogative right of the Crown or being an Act of the Sovereign. But on account of the provisions embodied in section 23 of the William IV, Chapter 41, which, as noticed above, is in , part materia with provisions contained in sub rule (4) of rule 15 of Order XLV of the Code of Civil Procedure. On the same reasoning decree by the Supreme Court, shall have full force and effect, notwithstanding the death of any party interested therein.
7. This brings us to the arguments of t1re learned counsel that the provisions contained in Order X1 V, rule 15 (4) of the Code of Civil Procedure do not apply to the facts of the case and that, in any case, the same stands repealed impliedly. Serb-rule (4) of rule 15 is to the following effect 1 , "(4) Unless the Supreme Court is pleased otherwise to direct, no order of the Supreme Court shall be inoperative on the ground that no notice has been served on or given to the legal representative of any deceased litopposite-party or deceased respondent in a case, where such opposite party or respondent did not appear either at the hearing in the Court whose decree w-as complained of or at any proceedings subsequent to the decree of that Court, but such order shall have the same force and effect as if it had been mach before the death took place."
It will be seen that no order of the Supreme Court shall be inoperative or the ground that no notice has been served on or given to the legal representative of any deceased opposite-party or deceased respondent in a case, where such an opposite-party or respondent did not appear/or at an proceedings subsequent to the decree of that Court but such order shall have the same force and effect as if it had been made before the death took place.
Proceedings subsequent to the decree will necessarily 0clade the proceedings initiated by an aggrieved party in the Supreme Court presenting a petition for leave to appeal and after the leave is granted all steps taken toward the completion of tile case for final disposal by the Court. An opposite- party, having notice of these proceedings, if sloes not choose to appear and a final order is passed by the Court, after his death, the same shall have the force and effect as if it had been passed before the death took place. Under rule 4 (!v) of Order XIII of the Rules, unless a caveat as prescribed by Order XVIII, rule 2, has been lodged, an affidavit of service of notice of the intended petition upon the opposite-party is required to be filed with the petition for leave to appeal. Rule 2 of Order XVIII is to ire following effect ; "Where a petition is expected to be lodged, or has been lodged, which does not relate to any pending appeal of which the record has been registered in the Registry of this Court, any person claiming a right to appear before this Court on the hearing of such petition may lodge a caveat in the matter thereof, and shall thereupon be entitled to receive from the Registrar notice of the lodging of the petition, if at the time of the lodging of the caveat such petition has. Not yet been lodged, and, if and siren the petition has been lodged, to require the petitioner to serve hire with a copy of the petition and to furnish him, at his own expense, with copies if any papers lodged by the petitioner in support of his, petition. The caveator shall forthwith, after lodging hip caveat, give notice thereof to the petitioner, if the petition has been lodged."
Now under rule 5 of Order X1II, a party, who has lodged a caveat, has a right EX the notice of hearing of the petition for special leave to appeal. After leave is granted under rule 2 of Order XIY, order granting special leave to appeal, is no--i6ed to the respondent and certified copy is -also, transmitted to Registrar c,f the 1-sigh Court concerned who i9 required to send the original record to the Registrar of the Supreme Court. After the receipt of the record, the fact is notified to all the parties who are required to file their lists of documents to be included in the paper, books. Lender rule 1 of Order XVII, the respondent shall enter his appearance within thirty days of the receipt of notice of the despatch of the record under Order XIV; and, as embodied in rule 5 of this Order, a respondent who has not entered appearance shall not he entitled to receive any notice relating to the appeal from the Registrar of the Supreme Court. If a party, therefore, does not a; pear in these proceedings and a final order is passed against him by 1c, the Supreme Court, after his death, the provisions embodied is Order XLV, rule 15 (4) of the Code shall apply and his legal representatives will not by heard to say that the order of the Court is nullity.
9. The argument of the learned counsel for the appellant that Order XLV, rule 15 of the Code stands impliedly repealed i9 based on the maximum Expressio Unius est cxclusio alterius. He referred to the works on interpretation of statute. Maxwell at page 293 observed: "By the rules usually known in the form of this Latin maxim, mention o1 one or more things of a particular class may be regarded as silently excluding all other members of the class : exprassum facit cessare tacttum:'
Crawford on Interpretation of Statutes dealing with this position states at page 334 t "As a general rule, in the interpretation of statutes, the mention of one thing implies the exclusion of another thing. It therefore logically follows that if a statute enumerates the things upon which it is to operate, everything else must necessarily. And by implication, be excluded from its operation and effect. For instance, if the statute in question enumerates tics matter over which a Court his jurisdiction, no other matters may be included. Similarly, where a statute forbids the performance of certain things, only those things expressly mentioned are forbidden. So also, if the statute directs that certain acts shall be done in a specified manner, or by certain person, their performance in any other manner than that specified, or by any other person than one of those named, is impliedly prohibited."
It was argued that the Supreme Court Rules were amended after the enforcement of :he 1912 Constitution and rule 1 of Order XII was re-cast and rules 2 to 6 were omitted. The provisions of Order XLV of the Code were applicable under rule 1 arid rule I as re-east did not make any mention as to the applicability of Order XLV.
10. Order XII of the Rules falls in Part II of the Rules headed as appellate jurisdiction. Order XII applies to civil appeals. Rule 1 !s to the following effect: ---1. The provisions of Order XLV of tile Code and of any Rules made for the purpose by the High Court concerned so far as may be applicable, shall apply in relation to appeals preferred to the Court under Articles 157 and 158 of the Constitution t Provided that the Court may from time to time issue to High Courts any special directions for the purpose of presentation of appeals to the Supreme Court.--- Rule 2 deals with. The consolidation of appeals by the High Court. Rule 3 concerns the furnishing of security as provided under rule 7 (1) (a) of Order XLV of the Code. Rule 4 provides the penalty for non-furnishing the security. An appellant after obtaining the certificate from the High Court could withdraw appeal under rule 5. Similarly the appeal could be withdrawn even after it has been admitted under rule 4. Reference to 1956 Constitution would show the! Articles 157 and 158 of the same deal with the appellate jurisdiction of the Supreme Court involving interpretation of the Constitution and jurisdiction in civil matters. However Order XII as amended pertains to civil appeals under Article 58 (2) (a) of the 1962 Constitution. Article 58 (2) (a) of the 1962 Constitution provides that an appeal to the Supreme Court from a judgment, decree, order or sentence of a High Court shall lie as of right, where the High Court certifies that the case involves substantial question of law as to the interpretation of the Constitution. D It is thus clew that Order XII as amended was restricted to apply only to appeal under Article 58 (2) (a) of the Constitution whereas Order XII of the Old Rules applies to all civil appeals. The argument, tberefore, that on account of the amendment in Order XII of the Rules the provision in Order XLV of the Coda stands repealed cannot be accepted. Moreover even rule 1 of the Old Rules provided that Order XLV of the Coda and any rule made for the purpose by the High Court concerned so far as may be applicable shall apply in relation to appeals preferred to the Court under Articles 157 and 158 of the Constitution. Order XLV of the Code as such was not embodied in the Supreme Court Rules. A perusal of Order XLV would show that it deals with the procedure to be followed by the High Court in regard to appeals to the Supreme Court. Rule 15 of this Order provides a procedure to enforce orders of the Supreme Court. It is in relation to this procedure that sub-rule (4) of this Rule provides that no order of the Supreme Court shall be inoperative on the ground and under the contingencies provided in this sub-rule even if passed against a dead person. There is yet another aspect of this case. The Rules in the First Schedule to the Code have, under section 121, the effect as if enacted in the body of the Code until annulled or altered in accordance with the provisions of Part 10 of the Code. A detailed procedure as to the amendment in or annulment of the rules contained in the First Schedule is provided in Part 10 of the Code. These rules, under section 126, are subject to the previous approval of the Government of Province in which the Court, whose procedure the Rules regulate, is situate or if that Court is not situate In that Province. The previous approval of the President. While amending Order XII of the Rules, it was. Therefore, never intended to effect implied repeal of Order XLV of the Code or alter the procedure, as provided in rule 15 of this Order. To enforce orders of the Supreme Court. The maxim Expressio Unius Est Exclusion Alterius is based on the probable intention of the Legislature. Where the intention clearly B reveals that the law-makers did not mean that the express mention of one thing should operate to exclude all others, the principle is not applicable. Consequently, where the statutory language is plain and the meaning clear, there can be no implied exclusion. The principle is to be used only as a means of ascertaining the Legislative intent where it is doubtful and not as a meats of defeating the apparent intent of the Legislature. The argument of the learned counsel for the appellant, therefore, that Order XLV of the Code stands impliedly repealed or that the provisions embodied in sub-rule
(4) of rule 15 were not applicable to the facts of the instant case, cannot be accepted.
For all the reasons, I do not find any merit in this appeal and the same is, therefore, dismissed. The patties, however, are left to bear their own costs.