1995 PLP 777 (CLC)

Muhammad Bashir Malik for Petitioner This petition under section 115 of the Code of Civil Procedure by Dilbar Hussain/objector, is directed against the order passed by the learned Additional District Judge, Sheikhupura dated 21‑9‑1994 whereby he dismissed the appeal filed by the petitioner and maintained the order passed by the Court below/rejecting an objection petition filed by him under Order XXI, Rule 100, C.P.C.

2. The facts, briefly stated, giving rise to this petition, are; that Muhammad Saleem and Muhammad Naeem (herein respondents) brought a suit under section 9 of the Specific Relief Act (I of 1877) against Inayat Ali and Abdul Majid in the Court of Civil Judge, Sheikhupura/alleging therein that they were owners in possession of the suit property; that Inayat Ali and Abdul Majid had evicted them with the use of force and without their consent. This suit was contested and was ultimately decreed by the First Court on 11‑3‑1989. Feeling aggrieved, Inayat Ali and Abdul Majid preferred revision petition which was accepted by the revisional Court on 14‑6‑1991. Against this order, Muhammad Salim and Muhammad Naeem filed constitution petition which was dismissed by this Court on 19‑6‑1992. Feeling aggrieved and still dissatisfied, Muhammad Salim and Muhammad Naeem filed C.P.S.LA. which was accepted by the Supreme Court on 5‑12‑1993. Resultantly the decision of the revisional Court as well as the decision of this Court were set aside and the order of the first Court dated 11‑3‑1989 reoccupied the field. Pursuant to it, Muhammad Salim and Muhammad Naeem filed execution application.

3. It was at this juncture that Dilbar Hussain/herein petitioner appeared on the scene. He filed objection petition under Order XXI, Rule 100 of the Code Civil Procedure (hereinafter referred as the Code) alleging therein that he had purchased the property in dispute from one Mushtaq Hussain under agreement to sell dated 15‑8‑1974; that he had obtained its possession under the above agreement to sell; that Muhammad Salim and Muhammad Naeem had purchased the property from one Ashfaq son of Mushtaq on 2‑6‑1983; that the property in dispute, in fact, belonged to Evacuee Trust Properties Board and a reference to that effect was pending adjudication before the Chairman Evacuee Trust Properties Board; that Muhammad Salim and Muhammad Naeem had obtained the order of eviction of Inayat Ali and Abdul Majid without impleading the petitioner and by practising fraud and misrepresentation upon the Courts. This application was contested and was dismissed by the first Court on 25‑4‑1993. Against this order the petitioner preferred appeal which, too, was dismissed by the appellate Court vide impugned order dated 4‑7‑1994.

4. In assailing the decisions of the two Courts below, learned counsel for the petitioner contended that the petitioner had been in possession of the property in dispute since 15‑8‑1974 under an agreement to sell; that he was not a party to the proceedings in the litigation between respondents on one hand and Muhammad Salim and Muhammad Naeem on the other hand; that his remedy only was under Order XXI, Rule 100 of the Code. Continuing, he further contended that the learned first Court dismissed his objection petition without framing necessary issues and without giving the parties opportunity of hearing. No other point was urged.

5. I have heard the learned counsel for the petitioner at a considerable length and after going through the order of two Courts below I am not persuaded to agree with him. The facts which have formed the background of this round of litigation, are not in dispute except the plea of the petitioner. The suit, filed by Muhammad Salim and Muhammad Naeem, which was decreed by the Supreme Court, was, undisputedly, under section 9 of the, Specific Relief Act. The main prayer contained therein was that they had been dispossessed by Inayat Ali and Abdul Majid without their consent and by the use of force. It is A clear from the plain language of section 9 of the Specific Relief Act that any decision/decree rendered or passed by the Court under section 9 of Specific Relief Act is tentative in nature and is designed to restore the possession of an ousted party quickly and without determining the title of the parties. The decision rendered under the above provision is neither subject to incident of appeal nor review. From the above, it follows that the orders passed in execution proceedings, being continuation of the suit, are not subject to any incident of appeal or review. This view was taken as back as in 1917 by Lahore High Court in Jehangir Singh v. Hira Singh (AIR 1917 Lahore 24). The above view was followed by Division Bench of Lahore High Court in Uttam Chand Ishar Das v. Hakim Muhammad Sharif (AIR 1932 Lahore 417). There is yet another aspect of the case, that petition filed under rule 100 read with rule 103 of Order XXI of the Code and suit filed under section 9 of the Specific Relief Act are radically different from each other and cover different situations. The above provision came for examination before Division Bench of Allahabad High Court in Murlidhar and another v. Jainti Prasad and others (AIR 1932 Allahabad 703). It was held therein:‑ "Under rule 103, Order 21, Civil P.C. any party not being a judgment debtor against whom an order is made under rule 101 may institute a suit `to establish the right which he claims to the present possession of the property'; but subject to the result of such suit (if any) the order is conclusive. The order of the execution Court is conclusive against the present plaintiffs unless they can get a decree establishing their right which they claim to the present possession of the property. Their merely showing that they were in possession and had been dispossessed would not be sufficient. As a matter of fact the finding of the Court that they were not in possession at all on that date is binding upon them. They must establish their right to possession on the assumption that they were not in possession on that date. The suit to establish the right to possession contemplated by Order 21, rule 103, Civil P.C., is in our opinion not one under section 9, Specific Relief Act. This is also clear from the language of section 9, Specific Relief Act, itself. It is only where a person has been dispossessed without his consent `otherwise than in due course of law,' that he can recover possession in the summary proceeding. In a case where the execution Court has put the auction‑purchaser formally in possession, and has dismissed an objection raised by the rival claimant it is not a case of dispossession otherwise than in due course of law. The delivery of possession was in fact in due course of law. This view is further strengthened by the circumstances that whereas a period of six months is prescribed under Article 3, Limitation Act, for a suit under section 9, Specific Relief Act, there is a period of one year under Article 11(a) of the Act for a suit by a person to establish his right to the present possession of the property against whom an order has been passed by an execution Court. Obviously the two classes of suits arc of a different nature and fall in different categories."

6. Applying the above settled proposition of laws to the facts and circumstances of this case, it is quite clear that the order passed by the first Court dated 25‑4‑1993 was not appealable. This being the position, the appeal filed by the petitioner was wholly incompetent and merited rejection. Even if this order is treated as order passed in revisional jurisdiction then the second revision would not be competent under section. 115 of the Code. In view of above, I have no difficulty in coming to the conclusion that the appeal filed by the present petitioner before the first Court of appeal was incompetent and order of executing Court became final.

7. There is yet another aspect of the case. From the perusal of the objection petition of the petitioner as well as material available on record, it is quite clear that it was filed with unclear motive. It is not in dispute that Dilbar Hussain/petitioner is the son of Abdul Majid who was party to the first round of litigation. It is the common ground between the parties that both were living under the same roof. Had the petitioner any genuine claim, he would have come forward in the first round of litigation and would have contested the suit under section 9 of the Specific Relief Act. This having not been done, there is no escape from the conclusion that now he has come before the executing Court and riled objection petition in order to frustrate the order of the Supreme Court. This is impermissible. Such plea cannot be examined in revisional jurisdiction which is discretionary as well as equitable in nature and cannot be extended in favour of such applicants.

8. For the reasons stated above, this revision petition is found to be wholly without merit and is accordingly dismissed in limine. AA./D/44/ Revision dismissed.