P L D 1959 (W (PLP)

Dates of hearing: 16th and 17th April 1959. This is a revision petition against the order of Mr. Ziaullah Khan, Senior Civil Judge, Lahore, giving effect to an objection by the contesting respondent, raised in proceeding for execution of a decree for possession of a house, that she was in possession of the house on her own account and not on account of the judgment‑debtor.

2. The facts are that a suit for administration of the property left by Sheikh Maula Bakhsh was filed by some of his heirs on the 28th of September 1940. His heirs were his two sons, Sheikh Muhammad Mir and Sheikh Muhammad Rafiq, and two daughters, Mst. Sahib‑un‑Nisa and Mst. Zaib‑un‑Nisa. A preliminary decree for partition of the property was passed in the year 1956 (sic). After the preliminary decree, there was a compro mise between the parties except Muhammad Mir, and a final decree was passed on the basis of this compromise on 4th of June 1954. This decree was expressed to be ex‑parte against Muhammad Mir. Muhammad Mir applied for the setting aside of this ex‑parse decree in July 1954. On the 2nd of August 1954, parties to this litigation agreed to refer the matter in dispute for arbitration to one Sheikh Abdul Ghani. The application to set aside the ex‑parse decree was allowed to be dismissed. Sheikh Abdul Ghani delivered an award on the basis of the statements made by the parties on the 7th of August 1954, and a decree on the basis of this award was passed or, the same day. By this decree, house No. 5, Langley Road, was allotted one‑half to the heirs of Muhammad Rafiq and the remaining one‑half in equal shares to Mst. Sahib‑un‑Nisa and Mst. Zaib‑un‑Nlsa. In the meantime, Mst. Mahmooda Begum, wife of Muhammad Mir, who is the contesting respondent in this revision petition, had filed a suit for recovery of her dower against Muhammad Mir. This suit had been decreed by the trial Court, and in the appeal filed in the High Court by Muhammad Mir, there had been a compromise between the parties on the 28th of November 1950. By this compromise, Muhammad Mir had agreed that Mst. Mahmooda Begum should have the right to continue to live in 5, Langley Road, in addition to a decree for money in her favour.

3. An application for execution of the decree which had been passed on the basis of the aforesaid award, by delivering possession of 5, Langley Road, was submitted by the decree holders on the 13th of December 1954. When the bailiff went to execute the decree, Mst. Mahmooda Begum, who was living in the house, resisted. The bailiff made a report on the 24th of December 1954 that Mst. Mahmooda Begum was offering resistance by bolting the doors from inside. On the 24th of January 1955, the decree‑holder put in an application for direction of qufal‑shikni and dar‑shikni in the warrant of ejectment a kind of warrant which enables decree‑holder to eject any person in possession. On the 2nd of February 1955, Mst. Mahmooda Begum submitted an application to the Court under section 151 of the Code of Civil Procedure that the direction regarding qufal‑shikni and dar‑shikni be not given because she was in possession in her own right. Subsequently she put in another application under section 151, C. P. C. and Order XXI, rule 99, praying that the execution application for delivery of possession of the house be dismissed on the same ground.

4. The decree‑holders in their reply to the last mentioned application objected, in the first instance, that an application under Order XXI, rule 99, C. P. C. did not lie. They, at the same time, denied the right of Mst. Mahmooda Begum to resist execution of the decree because she could not be in possession on her own account. The learned Senior Civil Judge, who was the executing Court in this case, framed the following issues :‑ (1) Is the petitioner Mahmooda Begum occupying the house in dispute in her own right and not on behalf of the judgment debtors ? (2) Does the application of Mahmooda Begum legally lie at this stage ? (3) Is the decree based on the award not proper and can the Court go beyond it ?

4. What is the effect of the decree of 4‑6‑54 issued from the Court of Sh. Muhammad Ishfaq Ali, upon this application for execution of the present decree ? The learned Senior Civil Judge found issue No. 1 in favour of Mst. Mahmooda Begum, respondent holding that she had a vested right in the property to continue in its possession till her life on account of the compromise decree in the suit for dower. On the second issue, he held that a person who was threatened with dispossession could also come to Court and apply that a warrant for his dispossession be not issued at all. The third issue the learned Judge did not consider it necessary to decide. Issue No. 4 the learned Judge did not discuss saying that it stood determined by his finding on issue No. 1.

5. The first question raised in this revision petition is as to the maintainability of the application. It is contended that the only application which can be put in by a person who is in possession of property in respect of which there is a decree for possession in favour of another person is one under Order XXI, rule 100, C. P. C. which runs:‑ "(1) Where any person other than the judgment‑debtor is dispossessed of immovable property by the holder of a decree for the possession of such property or, where such property has been sold in execution of a decree, by the purchaser thereof, he may make an application to the Court complaining of such dispossession. (2) The Court shall fix a day for investigating the matter and shall summon the party against whom the application is made to appear and answer the same." This provision apparently applies only to a case of a person who has already been dispossessed in execution of a decree. Reliance is placed by learned counsel for the petitioner in support of his contention on Sheikh Muhammad Jahangir v. Muhammad Ibrahim and another (P L D 1955 Lah. 525) and Daroga Prasad Sahu v. Bhagwati Prasad Singh and others (A I R 1935 Pat. 253). In the first‑mentioned case an application had been put in by a person who had not already been dispossessed, for determination of his right to continue in his possession in the face of the decree for possession, and Akhlaque Husain, J. held that the application not being covered by rules 99 and 100 of Order XXI was not competent at all. In the second case it was held that where nothing has been done by the decree‑holder beyond the submission of an application for execution of a decree for possession, it could not be said that some person other than the judgment‑debtor had been dispossessed, and, therefore, there was no jurisdiction in the executing Court to determine the right of the person in possession to remain in possession. It was only when a person was dispossessed that the matter could be determined by the executing Court.

6. With great respect I am not inclined to agree. There is always inherent jurisdiction in a Court executing a decree to determine, how, to what extent, and in what manner a decree is to be executed. An important thing to remember is this. When the person dispossessed puts in an application under Order XXI, rule 100, C. P. C. for restoration of his possession on the ground that he was not liable to be dispossessed in execution of that decree, what the Court determines is whether his dispossession was legal or illegal. If he was in possession on account of the judgment‑debtor, then his dispossession was not illegal, but if he was in possession of the property on his own account, his dis possession was illegal because a decree, for possession binds only the judgment‑debtor, and as is expressly provided in Order XXI, rule 35 and in the form of warrant for possession, contained in the First Schedule to the Code of Civil Procedure (Form No. 11), it is only a person bound by the decree who can be removed from the property of which possession is to be delivered. No person who is not bound by a decree can be ejected in execution of that decree. If x. person who is in possession on his own account approaches the Court and says : "You are going to take action in execution of the decree which is altogether illegal," shall the Court say to him : "It may be illegal but we will first take such action and then you can come and complain." The ejectment may cause to the person in possession irreparable loss. He may be running a shop in the premises on which he depends for his maintenance. It may be a residential house and he may have no other place to live in. The application under Order XXI, rule 100, which he submits after his dispossession, may take a long time for decision. Yet, according to the view put forward by learned counsel for the petitioner, the Court is altogether debarred from staying its hands. In fact the argument amounts to this that the Court is unable to stop the abuse of its own process. It is not possible for me to say that a Court must first commit an illegality‑illegality which may result in dire consequences to an innocent person‑and determine the question most relevant to the execution of the decree only. after the illegality has been committed.

7. One way of looking at the matter is this. . The person who approaches the Court says he is not bound by the decree. Has not the Court inherent jurisdiction to determine what persons are bound by a particular decree for possession ? What other Court will determine this matter if it be not the executing Court ?

8. It is true that the person in possession can resist delivery of possession and in that case it is the decree‑holder who is forced to apply under Order. XXI, rule 99, but it will not at all be difficult for the decree‑holder to wait for a time when the person in possession is not actually present on the premises and to have the warrant executed. The person, in possession cannot be expected to be on the look‑out for 24 hours. Also the person in possession may not fully understand his rights and may not resist execution of the decree when he sees the bailiff of the Court. Or he may be a woman or a minor unable fully to take care of his interests. Also the decree‑holder niay by representing to the Court that the house is locked get an order for dar-shikni and qufal-shikni the result of which will be that the bailiff would eject any person in possession. Such an attempt had been made in the present case. Another point to consider is this. Suppose a decree for possession of a plot of land is to be executed after removal of the superstructure that exists on the plot. Suppose it is the case of the person in possession that the superstructure belongs to him. The decree for possession may have been obtained by collusion. Even if the decree is not' the result of collusion, it may be that the super structure belongs to him. Shall the Court say that the superstructure must first be removed and he must first be ejected and it is only then that the Court will determine the question whether the superstructure belongs to him ? He may be a minor or otherwise unable to offer physical resistance to the bailiff.

9. That the Court has jurisdiction to determine whether a decree should be executed by delivery of possession of property which is in the occupation of a particular person is not denied. The only point is whether this jurisdictioncan be exercised at the instance of the person in possession only when that person has already been illegally dispossessed. I do not see why the exercise of this jurisdiction should be limited to a situation which arises by the dispossession of a person. Order XXI, rule 100 gives a right to a party to apply but when the party has not yet been dispossessed, it is a matter of discretion with the Court as to whether q it would or would not determine the question beforehand. It may, be that some interested person wants to use such a procedure for delaying execution. In that case the Court will refuse to entertain' such an application. But the jurisdiction to entertain it does exist.

10. I would, therefore, hold that the Court can determine the question as to whether a decree can be executed by tile eject ment of a particular person at any time and that the present E application was maintainable in law.

11. While I hold in favour of the respondent on the question of the maintainability of the application, I have no doubt that on the merits the application should fail. She derives her right from her husband who was one of the co‑sharers in the property. The other co‑sharers are not bound by anything that her husband had done, and they had a right to partition of the joint property unaffected by the transfer effected by him. So far as mortgagees from co‑sharers are concerned, there are a number of authorities laying down that the security which the mortgagee takes from a co‑sharer stands transferred to the property which falls to the share of the mortgagor. The present is not a case of a mortgagee but the principle on which their Lordships of the Privy Council based the case of the mortgagor clearly applies to it. Their Lordships of the Privy Council have held in Byjnath Lall v. Ramoodeen Chowdry etc. (1 I A 106), that a person who took a transfer from a co‑sharer took it "subject to the right of the other co sharers to enforce a partition." Every co‑sharer of the joint property has a right to get it partitioned. This right cannot be defeated by anything that is done by one co‑sharer. If Muhammad Mir granted right of residence to Mst. Mahmooda Begum, respondent, he could not thereby in any way affect the rights of the other co‑sharers to have the joint property partitioned, and any property which falls to the share of any other co‑sharer on partition must remain wholly unaffected by the act of Muhammad Mir unless, of course, it could be shown that there was between Muhammad Mir and the other co‑sharers collusion so as to defeat the right of the respondent. But there is no such allegation before me, nor was there any before the executing Court.

12. At the same time, it is to be seen that Muhammad Mir was not in a position to grant the right of residence to the res pondent at all. He had no right himself to exclusive possession of even an inch of the property and he could not grant a right of occupation of any part of the property to any other person. If he himself was in occupation of a part of the property he had the right to retain it till partition and that would be all the right that he could transfer to anyone.

13. There is still another point to consider. All that the respondent got from the compromise decree of 1950 was a right of residence. It was certainly not a right of exclusive possession of 5, Langley Road. She could only live there along with the others. and if that would be her sole right she could not possibly resist the delivery of possession to the decree‑holders. She could only insist (if her right of residence was proved) that she too would live in the property.

14. An objection has been raised on behalf of the respondent that the partition decree does not bear proper stamp and, therefore, it cannot be executed at all. It is really an objection which can be raised by a person who is applying to the executing Court for a determination of the question of her right to remain in occupation. But as the matter has been brought to my notice, and relates to a question of stamp, I will consider it. Admittedly the decree is not sufficiently stamped. The question is whether in view of section 36 of the Stamp Act this objection can be entertained. Learned counsel for the respondent says under section 35 of the Stamp Act the decree cannot be acted upon and, therefore, no execution can issue on its basis. He has relied upon Dilbagh Rai v. Mst. Teka Devi (A I R 1932 Lah, 249), wherein Dalip Singh, J. had held with some hesitation that a decree for partition which was not properly stamped could not be executed. It is surprising that neither party has cited the Full Bench judgment of the Lahore High Court which deals with this point That judgment is reported in Gopi Mal v. Vidva Wand (A I R 1942 Lah. 260). It was held by the Full Bench that a decree, which is not properly stamped is not altogether non‑existent, and can be executed is proper stamp duty is paid. It was pointed out that section 36 of the Stamp Act is confined to the admission of documents in evidence, whereas section 35 also refers to acting upon and that section 36 would not stand in the way of the Appellate Court refusing to act upon the decree. In view of this, I would hold that before the executing Court permits execution of this decree, the decree‑holder must supply proper stamp.

15. This revision petition is accepted and the objection of Mst. Mahmooda Begum to the execution of the decree is rejected. The decree shall be executed by delivery of possession of the property but it shall be executed only after the supply of proper stamp. Parties will bear their own costs in both Courts. A. H. Order accordingly.