1982 PLP 2458 (CLC)

Mumtaz Malik for Petitioners. Mian Nusratullah for Respondent. Date of hearing : 24th October, 1.978. The brief question involved in this revision is whether a person not being the judgment‑debtor, who is yet to be dispossessed in an execution proceeding, can apply under O. XXI, rule 100, C.P.C. The question arises in the following circumstance : In an ejectment proceeding instituted by Rehmat Ali against Nur Hussain, an order of ejectment was passed, against which the remedy by way of appeal and a second appeal failed and then execution application was filed on 20th January, 1976. Even before the fling of the execution application, Muhammad Anwar son of aforesaid Nur Hussain, and Munawar Hussain, a cousin of Muhammad Anwar, moved an application on 5th January, 1976 purported to be under Order XXI, rule

58. The executing Court dismissed the application on 22nd March, 1976 on the ground that since the property was not under attachment, an application under Order XXI, rule 58 did not lie. This view has been upheld by the lower appellate Court.

2. Learned counsel for the petitioners, however, submits that the application should be treated as one falling under rule 100 of Order XXl and argues on the basis of Mst. Sahib‑un‑Nissa etc. v. Mst. Mahmooda Begum (P L D 1959 (W. P.) Lah: 511) that such an application was maintainable and the Court had jurisdiction to determine the question of the executability of the decree qua the petitioners. He further argues that the Court of execution should not have dismissed the application summarily but should have treated the same as a suit and should have proceeded to frame issues and given the petitioners an opportunity to produce evidence in regard to the factum of their possession.

3. The question whether a person other than the judgment‑debtor can apply under rule 100 of Order XXI, before he is actually disposses sed, has been examined in a subsequent authority reported as Ali Hussain v. Rafiquddin etc. (P L D 1977 Late. 418) in which tile view taken In re : Mst. Sahib un‑Nissa etc. was dissented from by my learned brother Aftab Hussain J., and instead the earlier view of this Court in Sh. Muhammad Jahangir v. Muhammad Ibrahim etc. (P L D 1965 Lab. 525) was followed. In this latter authority of 1955 it had been held :‑ "In this case there was no such complaint and in fact there could not have been any such complaint because the stage for actual delivery of possession on the spot had not been reached before the respon dent made his application to the Court. The only other remedy which was open to the respondent was under rules 100 and 101, but this could become available to him only after he had been actually dispossessed. In the present circumstances, therefore, the `respon dent had no right to ask the Court to adjudicate upon his claim ; nor did the Court possess the jurisdiction to adjudicate because the requisite conditions which could confer that jurisdiction upon it had not come into existence." Rule 100 begins with the words "Where any person other than the judgment‑debtor is dispossessed of immovable property." The expression is dispossessed" clearly indicates that the person has already been dispossessed and does not cover the case of a person who is yet to be disposses sed. The Code has provided in specific terms as contained in section 4 and rules 92 to 103 of Order XXI for situations that are likely to arise in the matter of delivery of possession in execution proceedings. According to the scheme of the Code, unless the applicant is dispossessed, no eau of action arises for applying under rule

100. The Court is not vested with an anticipatory jurisdiction to enquire into the title of a stranger being only a prospective obstructer before he is in fact dispossessed. Mere delivery of symbolic possession will also not amount to dispossession within the meaning of this rule, and only the delivery of actual possession can constitute dispossession entitling the third party to maintain an application under rule

100. Nor does any question arise for invoking the inherent jurisdiction of the Court under section 151 to circumvent the express provision of this rule. The case‑law on the point consistently supports the same view. The contrary view taken in Mst.. Sahib‑six‑Nissa's case has been discussed at some length and reasons for departing from it have been given in Alt Hussain's case, and I see no good basis to differ from the same.

4. Learned counsel for the petitioners submits that refusal to entertain the application of an objector on the ground that he has not yet been dispossessed, would give rise to a grave situation as ejectment order can be obtained collusively and the person in rightful possession ejected if he be debarred from seeking relief until he has been so ejected. I am afraid, the contention is hypothetical. Even otherwise, it can hardly be said that Nur Hussain, who is father of one of the petitioners had colluded in; the passing of the ejectment order.

5. The petitioners' application was not maintainable either under rule 58, there being no attachment of the property, or under rule .100, the petitioners not having yet been dispossessed. The revision petition is, therefore, dismissed with costs. M. Y. M.. Petition dismissed.