P L D 1986 Karachi 206 (PLP)

8. I have heard Mr. Asad Ali Bilgrami learned counsel for the appellant and Mr. Aftab A. Kazilbash learned counsel for the respondents.

9. It is submitted by Mr. Bilgrami, as was submitted before the Controller, that the execution application filed by the legal representatives of late Haji Abdul Latif was not maintainable for the reasons that they were not parties to the proceeding at an, stage nor was any application under Order VII, rule 4, C. P. C. had been made to substitute them. It is stated by the learned counsel for the appellant that the said late Haji; Abdul Latif had died during the pendency of the appeal and it was the duty of the respondents to have applied for being brought them on record which was not done.

10. The question as to who should have brought the legal representa tives of the said late Haji Abdul Latif on record is not of much significance because the appeal filed by the appellant was dismissed on merits and the order of eviction passed by the Controller was maintained and the same still occupies the field. However, the question for consideration is whether this order is executable or not by the legal representatives.

11. Now under section 22 of the Ordinance an order made by the Controller or the appellate authority is executable in such manner as ma be determined by the Controller, or, as the case may be, by the appellate authority. There is no doubt that the provisions of the Code of Civil Procedure, 1908, except those relating to (i) the summoning and enforcing the attendance of any person and examining him on oath; (ii) compelling production or discovery of documents; (ii:) inspecting the site ; and (iv) A issuing commission for examination of witnesses or documents, are not applicable to the rent proceedings. However, it is well‑settled that the broad principles embodied in the various provisions of the Code of Civil Procedure, 1908, in the absence or any express provisions in the Sind Rented Premises Ordinance, 1979, to the contrary, could be gainfully pressed into service in order to achieve the object of the Ordinance o make the relief granted in those proceedings fruitful. I would, therefore, refer to the relevant provisions of the Code of Civil Procedure, 1908. .The first provision to be noticed is contained in section 146 of the Code of Civil Procedure, 1908, which reads as follows :‑ "

146. Proceedings by or against Representatives.‑Save as otherwise provided by this Code or by any law for the time being in force, where any proceeding may be taken or application made by or against any person, then the proceeding may be taken or the application may be made by or against any person claiming under him."

12. From the abovequoted section it is clear that the respondents] who are claiming as legal representatives of late Haji Abdul Latif could make an execution application for execution of the order of the Controller as an application could be made by their father Haji Abdul Latif.

13. The other provision to be noticed is contained in Order XXI, rule 16, C. P. C. which reads as follows :‑ "

16. Application for execution by transferee of decree.‑Where a or, if a decree has been passed jointly in favour of two or more persons, the interest of any decree‑holder in the decree is transferred by assignment in writing or by operation of law, the transferee may apply for execution of the decree to the Court which passed it ; and the decree may be executed in the same manner and subject to :he same conditions as if the applications were made by such decree‑holder Provided . . . . . (not material) Provided . . . . . (not material).

14. According to the abovequoted rule the right to apply for execution of the order of the Controller stood transferred to the respondents on the death of their father, as when a Muslim dies intestate his legal representatives succeed to his estate and this is a transfer not by any statute but by operation of his personal law.

15. In Mahadeo Baburao Halbe v. Anandrao Shankarrao Deshmukh (A I R 1933 Rom. 367), the meaning of the expression "by operation of law" was explained thus:‑ "A transfer by operation of law means a transfer on the death or by devolution or by succession, and a transferee by operation of law would be a legal representative of the deceased decree‑holder, or the person in whom the interest of the decree‑holder has become vested under a statute, e.g., t‑he official Assignee of an insolvent under the Presidency Towns Insolvency Act; or the purchaser at a Court sale in execution of a decree." In Jugalkishore Saraf v. Messrs Raw Cotton Co. Ltd. (A I R 1955 S C 376), it was said by the Supreme Court of India that in order to constitute a transfer of property by operation of law what is necessary is that there must be a a passing of personal right in‑property to another person by the force of some law, statutory or otherwise. It may be mentioned that in this case of Jugalkishore Saraf the narrower meaning of the expression `by operation of law' as explained in the case of Mahadeo Raburao Halbe v. Anandrao Shankarrao Deshmukh was not accepted nonetheless it is clear from it that a legal representa tive of a deceased decree‑holder is covered by the provisions of Order XXI, rule 16, C. P. C.

16. It was, however. argued by Mr. Bilgrami that unless the names of the legal representatives appear in the order they could not execute the order and in support of his contention he relied on Kirtilal Jivabhai v. Chunilal Manilal (A I R 1946 Rom. 27). In this case it was held that under the Civil Procedure Code it is only a decree‑holder who can ordinarily apply for execution of the decree. If there are mot:, than one decree‑holders, then under Order XXI, rule 15 it is competent to one of the joint decree holders to apply for execution. If the decree is transferred either by assignment in writing or by operation of law, the transferee can also apply for execution under Order XXI, rule 16, whether the decree‑holder applies under Order XXI, rule 10, or under XXI, rule 15, the executing Court can only execute the decree provided his name appears as a decree‑holder on the face of the decree itself. The executing Court cannot look to anything outside or beyond the decree in order to satisfy itself that the person who is applying for execution is the decree‑holder. Proceeding further it was observed that very definition of "decree holder" contained in section 2, sub‑clause (3) of the Code, makes this clear. Mr. Bilgrami particularly referred to the following passage in this judgment :‑ "In the second place, in our opinion, a decree‑holder entitled to execute the decree as such must appear to be a decree‑holder on the face of the decree. Whether the decree‑holder applies under Order XXI, rule 10. or under Order XXI, rule 15, the executing Court can only execute the decree provided his name appears as a decree‑holder on the face of the decree itself. The executing Court cannot look to anything outside or beyond the decree in order to satisfy itself that the person who is applying for execution is the decree‑holder. The very definition of `decree‑holder' contained in section 2, sub‑clause (3) of the Code, makes this. clear beyond any doubt." However, this case is distinguishable on fact and law for when a order is passed under section I S no formal decree like one in a suit is drawn up, therefore, the question of mentioning the names of the legal representatives in the order does not arise. In such a case on the death of a landlord his legal representative could apply to the Court for execution of order of eviction. In such proceedings the only question that could a rise would be whether the applicants are legal representative of the deceased landlord in whose favour the order has been passed or not and that could be decided by the Controller who also execute the order. Further, the authority for making an application for execution of the decree by the legal representatives of the deceased is contained in rule 16 itself, which 1 have already quoted above. In the case relied upon by Mr. Bilgrami, Chagla, J. (as he then was) at page 30 of the report himself has observed as follows :‑ "It is true that Order XXI, rule 16, does not require that on an application for execution under that rule the Court should pass an order declaring that the applicant is the transferee of the decree. But in our opinion it is desirable that ordinarily such an order should be made on an application Order XXI, rule

16. We have ascertained that the practice on the Original Side has always been for the Judge in Chambers to pass such an order." "In Kacharabhai Mehrabhai v. Kacharabhai Waddal 33 Bom. L R 818, Madgavkar and Murphy, JJ. held that an application to execute a decree filed by the decree‑holder can, on his death, be continued by his son and heir, provided the heir first obtains an order of the Court under Order XXI, rule 16 ; and in Brijmohandas, Damodardas v. Sadashiv Laxman 41 Bom. L R 1190, Lokur, J., also held that when a decree is transferred to another Court and the decree‑holder dies before starting execution proceedings in that Court, his legal representatives cannot institute execution pro ceedings in that Court until they obtain an order under Order XXI, rule 16 from the Court which passed the decree recognizing theta as the legal representatives of‑the deceased decree‑holder and have that order remitted to the Court to which the decree is transferred for execution under Order XXI, rule 6 ; and the Privy Council also in the case to which we have referred, Jang Bahadur v. Bank of Upper India Ltd. 55 1 A 227, seems also to have taken the view that an order was necessary under the analogous provisions of section 50, because it appears from the judgment of their Lordships at page 233 that they toots the view that before execution could proceed against the legal representative of the deceased judgment‑debtor the decree‑holder must get an ‑ order for substitution from the Court which passed the decree. But even without the passing of a formal order, there must be a recognition by the Court that the person who has applied for the execution of the decree is a transferee within the meaning of Order XXl, rule 16. (Emphasis supplied). But for such recognition, the person who applies for execution would be a stranger to the decree and would not be entitled to maintain the application."

17. It was then argued that under section 18 of the Sind Rented Premises Ordinance, 1979, when the ownership of a premises in possession of the tenant has been transferred by sale, gift inheritance or by such other mode, the new owner has to send an intimation of such transfer in writing by registered post, to the tenant and in the present case no such notice was given, therefore, the decree was not executable. This. argument is also based on misreading of the provisions of section 18 of) the Sind Rented Premises Ordinance, 1979, which provide that in cases of change of ownership by sale, gift, inheritance or by such other mode default could not be said to have been committed unless notice of shone of ownership is given and the time mentioned therein expired. These provisions do not apply to a case in which the order of eviction has already been passed by the Controller after giving a finding. that the tenant has committed default.

18. I would therefore, hold that the execution application filed by the respondent is maintainable and consequently dismiss the appeal with costs. The costs will be the amount of three months rent. A. A. Appeal dismissed.