P L D 1974 Lahore 502 (PLP)

(2) The Court may, subject to any objection as to limitation or jurisdiction, treat a proceeding under this section as a suit or a suit as proceeding and may, if necessary, order payment of any additional court-fees. (3) Where a question arises as to whether any person is or is not the representative of a party, such question shall, for the purposes of this section, be determined by the Court. Explanation.-For the purposes of this section, a plaintiff whose suit has been dismissed and a defendant against whom a suit has been dismissed, are parties to the suit." A perusal of this section will show that when for example a person who wishes to execute the decree claims to be a representative of the plaintiff decree-holder and wishes it to execute against a person alleging that that person is a representative of the defendant-judgment-debtor, then this question is obligatory for the Court to decide. In this respect, the provision of the present section 47, C. P. C. of 1908 may be compared with the provisions of the corresponding section 244 of C. P. C. of 1882. In that earlier Code, the Executing Court had the option to determine or not to determine such a question and could leave the parties to get it determined from a civil Court. While bringing about the change, the Special Committee in its report printed on pages 179 to 200 of the Gazette of India, dated 7-9-1907 at page 189, wrote as follows :

"Clause 47.-The Committee have omitted sub-clauses (a) and (b) of section 244 of the existing Code because they are strongly of opinion that question regarding the amount of any mesne profits or interest should be determined by the decree and not in execution. If this view is accepted it will be possible to exercise an effective control over the action taken by subordinate Courts in dealing with such matters. The Committee have redrafted sub-clause (3) and made it compulsory on the Court to determine questions arising as to representatives of parties. In their opinion it is inexpedient that separate suits should be instituted for the decision of such questions. The delay and expenses involved are often very great and result in the needless protraction of litigation. The explanation is intended to put an end to a conflict of judicial decisions." Reading subsection (1) and subsection (3) of section 47 together, in the light of the report of the Special Committee, it will be manifest that such a question must be decided by the Executing Court and not by a separate suit. See Bhuyan Shyam Sunder Molapatra and another v. Ch. Nilakantha Das and others (A I R 1956 Orissa 165) and Parmeshari Din v. Ram Charan and others (1937 P C 260) affirming Pt. Ram Charan v. Parmeshwar Din (A I R 1933 All. 201) where it is laid down that a separate suit for possession against the transferee of a judgment debtor pendente life does not lie at the instance of the decree-holder and he is bound to proceed in execution. Also see Abrupammal v. Thoyammal (117 I C 12;). In other words, institution of a suit on such a point is expressly barred. To contend therefore, that in a suit under Order XXI, rule 103, C. P. C., such a question can be determined is to negative the provisions of section

47. Rules in the Code, cannot be used to nullify the provisions contained in the body of the code itself and any contention which is based on such a design cannot be accepted. If the executing Court finds that the person concerned (namely, he who wishes to execute the decree or the one against whom the decree is sought to be executed), is a representative of the plaintiff-decree-holder, or of the defendant-judgment-debtor, as the case may be, the problem becomes simple and possession can be delivered by removing the aforesaid defendant judgment-debtor or his representative. If, however, the finding of the Executing Court is that the applicant who desires execution of the decree is not a decree-holder or his representative or that the person against whom execution is sought is neither a judgment-debtor nor his representative then the case enters the second phase. Second Phase

9. In this phase (confining the discussion to the case of a judgment debtor) (which is the situation here), if the Court finds that the person against whom execution is sought, is not a judgment-debtor or his representative, and is not bound by the decree, then the questions which further arise are the following, namely. :

(i) Whether the said person claims to be in possession of the property ; (ii) on his own account ; or (iii) on account of some person other than the judgment-debtor ; and (iv) in good faith ? The executing Court can after deciding these questions, deliver or refuse to deliver possession as the case may be. These questions are decided under rules 98, 99 and 101 of Order XXI, C. P. C. It is about these decisions that it is written in rule 103 of Order XXI, C. P. C., that, "Any party not being a judgment-debtor, against whom an order is made under rule 98, rule 99 or 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 shall be conclusive" The points of decision under the aforesaid rules are, therefore, in their very nature different from those which fall for determination under section 47, C. P. C. Thus if in a case an execution application pending between the parties to the suit is dismissed (in the first phase) on the ground that the person against whom its execution is sought, is neither judgment-debtor nor his representative and who as such is not bound by the decree, then it is a question determined under section 47, C. P. C. and is appealable.

10. The Executing Court should be careful in maintaining these two distinct phases in their proceedings and order. However, instances are not lacking in which the Executing Courts may have passed over lapping or composite orders. In such cases, since the orders would also be under section 47, C. P. C., and appeal against the same would be maintainable.

11. Another thing to be noticed is that in the main ejectment suit, the parties were Syed Mehdi Hassan ; Syed Altaf Hussain v. M. A. Rashid. The same were the parties in the execution application No. 23/10 of 1965, which was filed under Order XXI, rule 11 read with rule 35, C. P. C. in the Executing Court on 22-2-1965 and was ultimately dismissed by the impugned order on 7-9-1967. The relevant contents of this application have already been reproduced above. In those execution proceedings, the plaintiff-decree-holders asserted that the obstruction had been caused to the process of execution by a representative of the judgment debtor or at his instance. According to section 146 of the Civil Procedure Code, "Save as otherwise provided by this Code or by any law for the time being in force, where any proceedings may be taken or application made by or against any persons, then the proceeding may be taken or the application may be made by or against any person claiming under him." In that view of the law on the subject, the plaintiffs-decree holders were well-within their rights in praying that by removing the said obstruction, they may be put in possession of the property concerned. At this stage reference may be made to the pleadings of the parties in the main suit which have been reproduced in extenso earlier. If the main ejectment application and its written-statement as filed by the defendant judgment-debtor are kept in view and are read in the light of the pleas taken up in execution proceedings then it is manifest that between the parties to the suit question had arisen as to whether Mian Fazal Ilahi (or Ahsan Industries) were sub-tenants, licensees, transferees from or representa tives of the defendant principal tenant or not. The defendant-tenant in his written-statement has denied this assertion and was the point is direct controversy with him and the plaintiffs. That point of sub-tenancy etc. could be decided either in the main suit or even in execution application, Between the parties to the main suit, therefore, a dispute arose as to whether the obstructer or objector was the representative of the judgment debtor and a person who could be said to claim under him. The so-called obstructer also joined the controversy in execution proceedings and a stage was set up for deciding the question between the parties to the suit as to whether the obstructors/objectors were sub-tenants or representatives of the defendant-judgment-debtor. This was a question which under section 47, C. P. C., had to be decided by the Executing Court, decision wherein was to be a decree within the meaning of section 2(2) of the C. P. C. and could well be the subject-matter of appeal under section 96, C. P. C. The suggestion of the learned counsel for the respondent that it was not a decision between the parties to the suit but only between the decree-holders and objector/obstructor is not correct and is based solely on one side of the picture. Merely because the objector/obstructor also joined these proceedings or controversy will not detract from the nature of the position of the parties in the suit itself. All that can be said is that in controversies like these, the objector/obstructor may be a proper party just as he may be in the main suit and it cannot be held that merely because he is associated therein, the principal tenant goes out of the dispute or so far as he is concerned he gets unconcerned with the matter, especially when he had been accused of the charge of subletting the premises and violating the terms of tenancy on this count. In the instant case, the warrants for possession had been issued against the principal tenant i.e., judgment-debtor and according to the plaintiff-decree-holders on seeing the process-server he just secreted himself and got a fictitious obstruction-objection report endorsed thereon. The parties to the suit were, therefore parties in the execution case and the matter was being decided in between them with regard to the execution of the decree.

12. It was suggested by the learned counsel for the respondents that the question as to whether the objector/obstructor was a sub-tenant or representative of the defendant-judgment-debtor, was not a question pertaining to the execution, discharge or satisfaction of the decree. This contention again has no force. In the circumstances in which this question has been raised in the Executing Court it does pertain to the execution of the decree and falls within the scope of section 47 as indicated in sub section (3) thereof. The question whether the defendant-judgment-debtor had sublet or transferred pendente late the premises to Mian Fazal Elahi/Ahsan Industries or had assigned his rights to them or whether had given them the licence to occupy the premises, was a question which affected the rights both of the plaintiffs-decree-holders as well as the defendant-judgment debtor. So far as the plaintiffs are concerned, it affected their rights to execute the decree and so far as the defendant was concerned, it affected his liability to get the possession restored from his representative, sub tenant, transferee or assignee etc. No case-law has been brought to my notice to show that such a question is not concerned with the execution of the decree between the parties to the suit, especially when it arises even from their pleadings in the main suit itself. In the execution of the decree the point involved inter alia was of delivery of possession and when that is negatived on the ground, as involved in this case, it is a question pertaining to execution of the decree. The specific controversy related to the determination of the nature of the rights acquired by the decree-holder under the decree and, therefore, pertained to the execution of the decree. The fallacy in the point of the learned counsel for the respondent (if I can say so with respect), arises when he sees the matter in a mere hypothetical and detached manner and does not keep the attending facts and circumstances of this particular case in view. Again, the words "any determination within section 47", as used in section 2(2), C. P. C. which defines a decree, must be construed in the light of the first part of the definition of the term decree and it must be relating to rights of parties in controversy in these proceedings. Read in this way, the question involved between the landlord and his tenant on the point of sub-lease or licence etc. was such which affected the rights of the parties in the matter of the execution of the decree and would be covered by section 47 and would be appealable.

13. Though the views expressed by me above are sufficient to hold that the order/decree, dated the 7th of September 1967, was appealable, something may be said in their own turn about the points raised by the learned counsel for the respondents in sub-paras. (a) to (d) of Paragraph 6 of this judgment. Reg. 6(a).-So far as the point contained in sub-para. 6(a) is concerned, it is based on misconception of the words of section 96, C. P. C. In that section right of appeal against a decree can be taken away by anything to the contrary in the body of the Code and not by rules. Civil Procedure Code, is divided into two parts. The first part which contains sections 1 to 158 is known as the body of the Code and the other part which is in the form of First Schedule contains the rules of procedure. The said rules cannot, therefore, be pressed into the field to control section 96, C. P. C., wherever it is applicable in its own terms. - Apart from the view that the scope of section 96 and rule 103 of Order XXI, C. P. C., is different the argument under discussion, however, is not tenable on the very wording of section 96 itself. Reg. 6 (b).-As regards the point in sub-paragraph (b) this again is based on too much technicalities. The words "for the purposes of this section", in subsection (3) of section 47 clearly show that subsection (3) is not independent of but ancillary to subsection (1) and therefore, at once comes into operation when there is a question arising between the parties to the suit relating to the execution, discharge or satisfaction of the decree. Once that stage is set in then for the purpose of conclusively determining the rights of the parties with regard to all or any of the matters in controversy in the suit (or within section 47), the Executing Court is to determine the question of the kind involved in this case. That is a determination within section 47 and would be a decree and would be appealable. Reg. 6 (c).-As regards the point in sub-paragraph (c), it has been specifically dealt with in para. 12 of this judgment and need not detain me any longer. Reg. 6 (d).-As regards the' point in sub-paragraph (d), the proposition is too broad to be given any serious consideration. In Khetramohan Manimohan and others v. Parbaty Nath Dutta and others (A I R 1955 Cal. 295) it was held that the maintainability of an appeal is not to be regulated by the findings of the trial Court and that the Appellate Court should itself see, as to whether section 47 applies or not. Cases are not lacking where appeals in both types of decisions, namely, (a) holding a person to be representative or (b) not holding him to be a representative were upheld. For former, see (a) Khem Singh and others v. Raghubir Singh and others (1 L R 47 All. 365), Ram Autar Sahu and others v. B. Bate Krishana and another (163 1 C 926=A I R 1936 All. 479), Jnanendra Nath Sanyal v. Girish Chandra Lahiry and others (164 1 C 375). For the latter class of cases see Jaldu Balasu bramaniam Chetty v. D. Kothandarammwami Nayanim Varu and others (A I R 1942 Mad. 688), Noor Zaman Khan v. Mt. Maimunissa Bib! and others (A I R 1958 Pat. 228), S.7opiyadath Kunhammad Varanavan of his Tarwad and another v. Soopiyadath Ahmad and others (16 M L J 27), Jnanendra Nath Sanyal v. Girish Chandra Lahiry and others (earlier mentioned) and Ganga Das Seal v. Yakub Ali Dobash! and another (I L R 27 Cal. 670) I need not multiply more instances in this respect and will refer to the case-law quoted by Nand Lal in his Book "The law of Civil Appeals in British India" (Second 1934 Edition) heading `Order in execution proceedings appealable," at pages 80 to 87 and heading "Orders in execu tion proceedings not appealable" at pages 88 to

95. On general principles also even otherwise it is well settled that jurisdictional facts can always be gone into by a forum whose jurisdiction is sought to be ousted. It can exa mine the relevant material in that behalf, and if it finds that the jurisdictional facts exist, it can assume jurisdiction and if it finds that these facts do not exist, it can refuse to exercise jurisdiction. On this principle as well an Appellate Court in the present case will be well-within its authority to find as to whether the respondents are representatives of the judgment debtor and bound by the decree. If its answer is in the affirmative, it can then proceed to accept the appeal and direct the execution of the decree against him but if its answer is in the negative, then the appeal will be dismissed both on account of its non-maintainability for that reason and also on facts.

14. Learned counsel for the respondent cited Barkat Ram v. Sardar Bhagwan Singh (A I R 1943 Lah. 140), Deoki Nandan Singh v. Bansi Singh (10 1 C 371), Behary Lal Pundit v. Kedar Nath Mullick and others (1 L R 18 Cal. 469), Mt. Sunder and another v. Sita Ram (A I R 1941 Lab. 342), Gopal Das and another v. Ishar Das and others (A I R 1932 Lah. 376), Pralhad v. Mahadeo (21I C 266), Dwipal Chandra Bardhan v. Jiban Debi and others (A I R 1931 Cal. 574), Abdul Rashid and another v. Muhammad Hafeez and another (P L I5 1963 Lah. 414), Satyendra Nath Choudhry v. Gharu Chandra Ma, umdar and others (A I R 1927 Cal. 657), Kilash Chandra Tarafdar v. Gopal Chandra Poddar (A I R 1926 Cal. 798), Sm. Kundalata Biswas v. Sm. Chandra Kamini Dasi and others (A I R 1957 Cal. 111), P. K. Ramchendra Thevar v. Nagamuthu Nochiar and others (A I R 1920 Mad. 826), D. B. Pachaiappa Cheeti and others v. C. Venkatacharlar and others (A I R 1925 Mad. 1198) and Sarwar v. The State (P L D 1939 Lsb. 51). None of these cases dealt. with the principles and the points of view highlighted by me in the discussion hereinbefore made. Even otherwise, the facts of all these cases are different from the one in hand and they do not lay down any view contrary to what I have held on the basis of the peculiar facts and circumstances of the present case. In this view of the matter, I need not deal with each of these cases independently. ON MERITS

15. This brings me to the merits of the case however, before: embarking upon the discussion of the evidence produced, it is essential to point out as to when can a person be said to be a representative of the parties . to the suit within the meaning of section 47, C. P. C. The test was laid down in Ajodhya Roy v. Hardwar Roy and others (1I C 213) `(Mookarjee and Carnduff, JJ.), where, after pointing out that the term "representative" was wider in scope than the "legal representative", it was held as follows at page 214; "To determine, therefore, whether a particular person is a representative of a party to the suit, the two tests to be applied are, first, whether any portion of the interest of the decree-holder or of the judgment-debtor which was originally vested in one of the parties to the suit, has by act of parties or by operation of law., vested in the person who is sought to be treated as representative, and secondly, if there has been a devolution of interest, whether, so far as such interest is concerned, that person is bound by the decree." This test was upheld and followed in Mian Abdul Aziz v. Allance Bank of Simla Ltd. and others (A I R 1933 Lab. 352) and Satyanarayan Banerji and another v. Kalyani Prosad Singh Deo Bahadur and others (A I R 1945 Cal. 387). The principle enunciated seems to be quite sound and no case-law indicating any contrary or a different suggestion has been brought to my notice. It will be in the background of this principle that findings on the relevant evidence will have to be given in the instant case.

15. The question in hand can be divided into three parts. First, whether M. A. Rashid (and as a matter of fact who), was the allottee of the premises in dispute. Second, whether the possession and allotment of M. A. Rashid (if any), came to an end. Third, when did obstructer/ objector come into possession of the premises in dispute and in what capacity. I will take up each of these points seriatim.

16. First Point; In this respect it is a common ground between the parties before ma that M. A. Rashid was an allottee of the property in dispute. In the main ejectment case, a copy of the allotment order, dated 24-12-47 in favour of M. A. Rashid duly exists on the record. This factor is also recited in various other documents like Exh. D. H/3 (agreement dated 18-6-63 between M. A. Rashid, judgment-debtor and Fazal Elahee); (ii) Exh. D. H./1/agreement dated 7-1-1964 between M. A. Rashid, judgment-debtor and the objector Fazal Elahi (iii) agreement dated 12-2-65 between M. A. Rashid, judgment-debtor and one of the plaintiffs-landlord Mehdi Hassan. This document was referred to in the pleadings of application of the decree-holders under Order XXI, rule 98, C. P. C. and does not seem to have been denied by any formal written statement. (iv) These documents will be attended to in detail in subsequent parts of this judgment in another prospective. For the present, however, it will be sufficient to state that the point in hand is so well-established on record beyond any doubt that it need not detain me any longer..

17. Second Point:

17. There is no order which may show that allotment of M. A. Rashid was at any stage cancelled, which means that the right of M. A. Rashid, judgment-debtor to remain in possession continued subject of course to his fulfilling the conditions laid down in section 30 of the Displaced Persons (Compensation and Rehabilitation) Act (XXVIII of 1958). The learned .executing Court while taking note of the various developments which took place in the matter of the transfer of the property and the stages .through which that litigation passed, held that since at one time, the bungalow was transferred to Ahsan-ul-Haq (D. 1-I: W. 1) in 1960, therefore, .that had the effect of terminating the allottees' allotment and possession. This is not correct. The real position is that initially the property was transferred to M. A. Rashid, judgment-debtor who by association got the I'. T. O., issued to Ahsan-ul-Haq. In revision, however, this transfer was cancelled by Mr. Farzand Ali Khan, Settlement Commissioner by his order, dated 7-12-60. This is clear from the deposition of Ahsan-ul-Haq (D. H. W. 1) and Exh. D. H. 6 which is a copy of the order, dated 3-3-1964 passed by Malik Muhammad Akram, Settlement Commissioner in his capacity as the Chief Settlement Commissioner wherein he gives the history of the case. This will show that M. A. Rashid was in possession of the property and never surrendered it to the Rehabilitation and Settlement Department. In .fact his possession continued throughout, so much so, that when notice under section 30 of Act (XXVIII of 1958), was served on him, after transfer to the plaintiff's, he accepted the service of that notice and admitted the existence of the relationship of landlord and tenant between him and the decree-holders. There is other copious material also confirming this position. Reference may be made to L. C. W. I Muhammad Anees son of Muhammad Siddiq. He is a relation of the judgment-debtor, inasmuch, his maternal uncle's daughter was married to the father of the judgment-debtor. He deposed that the judgment-debtor was in possession of the property and his i.e., judgment-debtor's father also used to live with him. The witness also remained in occupation of a part of the property from 1956 to 1960. According to the witness, Fazal Elahi was never in possession, nor had he any office or store ever there and no business of Ahsan Industries was carried out at that place. L. C. W. 2 is Hakim Muhammad Anwar Babri. He knew the father of the judgment-debtor who was an Advocate and who used to do his cases. Nobody with the name of Fazal Elahi, according to this witness, ever occupied these premises, nor was there set up any industry with the name of Ahsan Industries. (The father of the judgment-debtor died in 1960). Then we have the original affidavit of the judgment debtor and his mother Mst. Aziz Begum widow of Haroon-ur-Rashid, .Advocate (Exh. D. W. 1/2), dated 29-8-1960 (proved by D. H. W. 2 Syed Abid Hussain Deed-Writer) reciting possession of the judgment-debtor. This should be read alongwith the deposition of D. H. W. 1 Ahsan-ul-Haq, who explains that the possession was of the judgment-debtor and that there was no Ahsan Industries in this place and even after the judgment debtor got P. T. O. issued to him, he that is the judgment-debtor did not part with the possession and continued in occupation by executing a document Exh. D. H. W. 1/1, dated 9-6-60 (which arrangement obviously collapsed with the cancellation of the said transfer). D. H. W. 3 is Syed Muhammad Anwar, Advocate who is son of the decree-holder. He made a very solid statement deposing that he had himself seen the premises over which the possession was of the judgment-debtor. In support of his case, he produced Exh. D. H./4, which is a copy of the survey register showing names of the persons in possession of the property. According to this document, the name of Fazal Elahi does not figure among the occupants. He referred to Exh. D. H./5 which is a copy of the order of the D. S. C., dated 23-3-1960, which does not show Fazal Elahi as an occupant of any portion of the bungalow in dispute. The witness further deposed that Fazal Elahi was actually financing the litigation and in support of this plea referred to agreements Exh. D. H./3, dated 18-6-63 D. H. 1 dated 7-1-1964 statement of the Mukhtar of the objector dated 9-7-65 before issues and formal statement as A. W. 5 dated 10-12-1965 after issues. This material sufficiently establishes the plea as to which is behind all this litigation and brings out the collusion between the judgment-debtor and Fazal Elahee.

18. Third Point:

From the material above referred to, it is crystal clear that up to the date of the P. T. O. that is 1-11-1961 and P. T. D. i.e., 14-7-1962, and issuance of notice dated 16-7-1962, Fazal Elahi/Ahsan Industries were nowhere in occupation of the property in dispute and that the former was imported there subsequently after the statutory relationship of landlord and tenant had come into being between the plaintiff and the judgment-debtor. Certain important documents in this behalf can be referred to. Exh. D. H/7 to Exh. D. H./13, are copies of letters exchanged with the Industries Department. It shows that there was an industrial concern known as Messrs Sama. Industries which was located near Shalimar Power House G. T. Road, Lahore. It belonged to one Muhammad Aslam from whom it was purchased by Fazal Elahi in the year 1958 who proposed to set it up at 6-E-6 Mayo Road, Lahore, under the name of Messrs Ahsan Industries. The concern or a part of it was sought to be shifted to 26, Empress Road, Lahore i.e., the property in dispute in 1962. This knocks out the plea of the objector/obstructor that Messrs Ahsan Industries was put up or working in the premises in dispute at any prior date. Exh. D. H. 7 and Exh. D. H./8, further show that Ahsan Industries rather did not exist at all in 1958. Exh. D. H./11 and Exh. D. H./12 are letters regarding another firm Messrs Fazal Elahi & Sons. They showed that even that firm did not exist in the premises in question at the relevant time. The view which I have taken was also taken in W. P. No. 379/R-67, which was filed by Mian Fazal Elahi objector in the year 1967 against eight persons, namely, (1) Syed Mehdi Hassan; (2) Syed Altaf Hussain; (3) Mst. Munawara Begum ; (4) Mr. M. A. Rashid (5) The Secretary, Ministry of Rehabilitation and Works, Government of Pakistan, Rawalpindi ; (6) The Secretary, Ministry of Rehabilitation and Works ; and (7) Malik Muhammad Akram Khan, Settlement Commissioner, Lahore. In this Writ Petition, Mian Fazal Elahi asserted the same claim which has been put forward by him in the instant proceedings, namely that he was in possession of a major portion of this property with effect from July 1958 and had converted it into a Rubber Factory and was entitled to its transfer: This claim was negatived by a Division Bench of this Court consisting of S. A. Haq, J. (now Chief Justice) and A. R. Sheikh, J. The whole of this judgment throws a flood of light on the point in hand and is reproduced below in extenso :

"The dispute in this case concerns property popularly described as 26, Empress Road, Lahore. The petitioner, Mian Fazal Illahi claims that he attained possession of a major portion of this property in July 1958 and converted it into a rubber and canvas factory. Subsequently, he applied for its transfer as an industrial concern, the application having been made to the Additional Settlement Commissioner (Industries) on the 15th of December 1959. However, the authorities ignored the petitioner's application and instead proceeded to consider the question of transfer of the property to respon dent No. 4, M. A. Rashid and a lady named Miss S. Titus on the basis of the claims put forward by these parties that they were in possession of different portions of the property. Prolonged litigation ensued in the Settlement Courts and M. A. Rashid also invoked twice the jurisdiction but did not succeed in getting the property. The Central Government had decided to transfer this property to respondent No.

1. Syed Mehdi Hassan, under section 10 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958. This respondent is entitled to have associated with respondents 2 and 3, namely Syed Altaf Hussain and Mst. Munawara Begun The petition, therefore, which obtains today is that respondents Nos. 1 to 3 are the transferees of the property. (2) It is submitted on behalf of the petitioner that he being a person in possession before December 1958 and having submitted an application for transfer of the property as an industrial concern, a duty was cast on the Settlement Authorities to consider his application on merits before transferring the property under section 10 of the Act. It is contended that entitlement in favour of the petitioner arises under paragraph 15(3) of the Schedule to the Act. (3) A report was called from the Settlement Department, which states that the petitioner was never in possession of any part of the property, that he never submitted any application for its transfer and that the relevant entry appearing in one of the Settlement registers regarding the receipt of the petitioner's application is a forgery. It is submitted in the report that in these circumstances the petitioner had no locus standi at all to ask for the transfer of the property. (4) After hearing Dr. Nasim Hassan Shah and perusing the various documents placed on the record we have no doubt left in our mind that this petition is entirely dishonest and misconceived. The inspec tion conducted by the then Chief Settlement Commissioner on the 4th of October 1961, showed that only M. A. Rashid was in possession of the portion which is now claimed by the petitioner. If indeed the petitioner was in possession since July 1958, having set up an industrial concern in the bungalow in dispute, there is no reason for him to have escaped the notice of the inspecting Chief Settlement Commissioner in October 1961. We also find that on the 20th of December 1961, the petitioner entered into an agreement with M. A. Rashid (respondent No. 4) clearly stating that the property was in possession of M. A. Rashid under a proper allotment order as a non-claimant and that this possession extended to the entire property except for two rooms which were in possession of Miss S. Titus 'who was a local. Having recited these facts the agreement then goes on to outline certain terms of association between M. A. Rashid and the present petitioner, Mian Fazal Elahi. On the basis of this agreement alone it stands established beyond any doubt, by the petitioner's own admission, that even on the 20th of December 1961 the petitioner was not in possession of any portion of this property; and, therefore, to claim now before us that the petitioner entered the property in July 1958 is a completely dishonest and untruthful statement. It is clear, therefore, that the petitioner not being in possession and his claim of having submitted an application being extremely doubtful bordering on forgery, he has no locus standi whatsoever to ask for the transfer of this property. The petition is, therefore, dismissed. (5) Before we part with this order we would like to observe that it is sad that a counsel of the standing of Dr. Nasim Hasan Shah has been misled by the petitioner to present a false claim in this Court. A notice shall issue to the petitioner to show cause why he should not be prosecuted under section 193 of the Pakistan Penal Code. The notice shall be drafted by the Advocate-General for our signatures. It shall refer to the petitioner's own documents which show that he obtained possession, if at all, in 1962, Le., after association with M. A. Rashid. (6) This file shall be kept in the personal custody of the Deputy Registrar of this Court, so that the original agreements which have brought on the file on behalf of the respondents are not tampered with in any manner." The above judgment was delivered on 19-3-1968. Against the aforesaid order, Mian Fazal Elahi filed a Civil Petition for Special Leave to Appeal No. 230 of 1968, which was not pressed and was dismissed by the Supreme Court on 11-11-1968 as withdrawn. Since this judgment is inter partes and came into being after the orders of the executing Court, due notice of it can be taken. Apart from the verdict of this Court in W. P. No. 379/R-67, even the documents executed by the objector himself in the form of Exhs. D. H./3 and D. H./1 and agreement dated 12-2-1965, referred to in the application under Order XXI, rule 98, C. P. C. (already alluded to by me in an earlier part of this judgment while narrating the facts) clearly falsify the pleas that Fazal Elahi was in prior possession as asserted by him in the executing Court.

19. After having found that Fazal Elahi/Ahsan Industries (objectors) were engrafted into this premises after the receipt of the statutory notice issued to M. A. Rashid under section 30 of Act XXVIII of 1958, it is not difficult to ascertain as to what their status is. He was a licensee of or collunder with M. A. Rashid and having no independent possession must fall or stand with M. A. Rashid as held by the Supreme Court in Kh. Muhammad Yaqub Khan and another v. Sh. Abdur Rahim and others (1968SCMR734) that a licensee is bound by a decree passed against his principal.

20. The learned executing Court threw away the execution applica tion holding that since obstructor/objector was not made a party in the ejectment case, therefore, execution could not proceed against him. From the finding which I have recorded, it is obvious that the obstructor/ objector being only a licensee of and collunder with the -judgment-debtor, he was not a necessary party and, as such, the execution could not be refused against him. He was a representative of the judgment-debtor and was bound by the decree.

21. As against all what has been mentioned above, the obstructor/ objector produced Ahsan-us-Zaman A. W. I an employee in the Punjab Drug House, a firm which is a partner of objector, Malik Abdur Rashid (A. W. 2) neighbour of the objector, Muhammad Jabbar (A. W. 3) a neighbour (and hawker) Muhammad Hussain Qureshi (P. W. 4) depot-holder who deposed that M. A. Rashid used to draw ration from a depot in another locality known as Muhammad Nagar and Sultan Mahmud (A. W. 5) an employee and attorney of the obstructor/objector. Learned counsel for the respondents did neither rely upon nor referred to the statements of any of these witnesses. However, I have myself gone through their testimonies and find that they are not worth the paper on which they are written, inasmuch as, all the witnesses are interested in the obstructor and even otherwise they are falsified by the cogent documentary evidence referred to by me earlier. Another thing to be noticed is that the obstructor/objector did not himself appear in the witness-box. The reason is not far to seek. In his heart of hearts he knew that his was a false plea and to avoid charge of perjury he abstained from making any personal statement.

22. The upshot of the above discussion is that holding that the obstructor/objector was the licensee and representative and collunder (sic) with the judgment-debtor within the meaning of section ) 47, C. P. C., I maintain that the execution can proceed against him dad I direct that same! should proceed. In view of the finding hereinbefore recorded, it is further clear that since the dispute before the executing Court was between the parties to the suit and their representative; licensee or collunder; so far as the judgment-debtor is concerned), the Order of the executing Court was appealable and the finding of the learned Additional District Judge to the contrary was not correct. The appeal is accepted in the terms herein contained and orders of both the Courts below are set aside. The case is remanded to the learned executing Court who should with police help and by breaking open the locks, if necessary, arrange the delivery of possession to the decree-holder. The appellants shall get their costs throughout.

23. Before parting with this case, I must place on record my apprecia tion of the industry put in by counsel for the parties, especially Kh. Muhammad Tufail Advocate, who had an uphill task to perform. K.B.A. Appeal accepted.