Law: Civil Procedure Code (V of 1908)

Section: 36

Law: Civil Procedure Code (V of 1908)

Section: 36

Civil Procedure Code (V of 1908)-------S. 36, O.XXXIX, Rr. 1 &2, O.XL R. 1---Constitution of Pakistan, Art.199---Constitutional Petition---Execution of interlocutory order, when main suit was dismissed as withdrawn---Scope---Application for temporary injunction and appointment of receiver---Maintainability---Contention of the petitioner was that the main suit stood dismissed as withdrawn, therefore, interlocutory order declining the application of the petitioner for temporary injunction and appointment of receiver could not remain executable under law, and prayed that respondent's application under Section 36, CPC for execution of said order be dismissed---Validity---Record revealed that the petitioner's application for temporary injunction and appointment of receiver was declined---Order declining the prayer of the petitioner was in no way executable as no order in terms of the Section 36 of the CPC was passed---Even if it was assumed that there was such an executable order, then the same stood merged into the main order, whereby the suit of the petitioner was dismissed as withdrawn---No executable order had been passed in the case---Orders of courts below were without jurisdiction and lawful authority and were set aside---Constitutional petition was allowed, accordingly. Haji Abdul Wali Khan and another v. Muhammad Hanif and another 1991 SCMR 2457 and Khaavir Saeed Raza v. Wajahat Iqbal 2003 CLC 1306 distinguished. Khawaja Zaffar Jehangir and Khawaja Aurangzaib Alamgir for Petitioner. Fida Gul for Respondents. Date of hearing: 25th October, 2011. JUDGMENT EJAZ AFZAL KHAN, J.--- Petitioner, through the instant petition, has questioned the order dated 28-6-2011 of the learned Additional District Judge-II, Peshawar, whereby, he dismissed its revision petition and maintained the order dated 27-1-2011 of the learned Civil Judge, XIV, Peshawar. 2. The learned counsel appearing on behalf of the petitioner contended that where the main suit stands withdrawn, interlocutory order declining the application of the petitioner for temporary injunction and appointment of receiver couldn't remain executable under any canons of law and procedure. 3. As against that the…

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