P L D 1973 Karachi 45 (PLP)

K. B. Bhutto for Respondent No.

1. Dates of hearing : 27th and 28th September 1971. The facts relevant to the dispute between the parties are complicated on account of prolonged litigation between them, but for the purpose of this appeal it is sufficient to state as follows: In the events that happened the first respondent had filed a suit against the appellant and respondents 2 and 3 in the Court of the District Judge, Dadu for partition of two sets of agricultural land (which may for convenience be called Group A and Group B) and for separate possession of his share. As the first respondent's suit was decreed by an Additional District Judge, the appellant and the other two respondents filed an appeal in the High Court of West Pakistan. Karachi Bench being First Appeal No. 136 of 1959. The High Court altered the decree of the trial Court and ordered partition in such a manner that the land in Group A was awarded to respondent No. 1, whilst the land in Group B was awarded to the appellant and the other two respondents. Thereafter, the first respondent filed an execution application in the trial Court for the enforcement of his rights in pursuance of the said judgment of the High Court. His execution application was allowed and, according to his own statement in the execution Court, he obtained possession the land in Group A. However, the litigation did not and despite the execution of the decree in the first respondent's favour, because the appellant before me had filed an appeal in the Supreme Court against the judgment of the High Court. This appeal was disposed of by the Supreme Court against the judgment of the High Court. This appeal teas disposed of by the Supreme Court on 21st May 1964 by a compromise and,. according to this compromise, the decree passed by the West Pakistan High Court was upheld with the modification that accounts of the mesne profits of the land awarded to the first respondent had to be taken. However, after this decree, the first respondent filed a second execution application on 3‑9‑1965 and together with the execution application he filed an application under Order XL, rule 1, C. P. C. In which he prayed that the Official Receiver be appointed to manage the property in dispute in the suit till the disposal of his execution application. This application was allowed ex parte by an Additional District Judge, Dadu by his order dated 4‑9‑1965, therefore the appellant applied for the review of this order, but his review application was also dismissed on 13‑11‑1965 by the same learned Additional District Judge. He has therefore come in appeal to this Court against the said orders of the Additional District Judge dated 4‑9‑1965 and 13‑11‑1965.

2. Mr. Naimuddin who appeared on behalf of the appellant. challenged the impugned orders on two grounds. The first ground was that as the first respondent had obtained possession of the lands in Group A in execution proceedings in 1961 he was debarred from filing a second execution application for the possession of the same lands therefore the trial Court had erred in allowing such an application. His second objection was that the trial Court had erred in appointing a Receiver as no case for the appointment of a Receiver under Order XL, rule 1, C. P. C. had been made out by the first respondent in his application.

3. As to the first argument of Mr. Naimuddin, I have to point out here that it was admitted before me by Mr. Bhutto that the first respondent had filed an execution application for obtaining possession in July 1961 which had been allowed by an Additional District Judge, Dadu. Further, this respondent had also admitted having received possession under his first execution application of the land awarded to him under the High Courts in First Appeal No. 1.36 of 1959 (vide Annexure A to the petition). This is also confirmed by his statement in the execu tion Court and according to Mr. Naimuddin, be had thereafter sold the land in Group A to a third party. The question whether the first respondent bas thus sold the land obtained by him is hardly relevant to this appeal. But, as admittedly, he had filed an execution application which was allowed, the obvious question which arises for determination is whether he could file a second execution application. Here I have to point out that when I enquired from Mr. Bhutto how any decree‑holder could file an execution application after his first application had been allowed. Mr. Bhutto admitted that that the trial Court had allowed the first respondent's execution application on 25‑7‑1961 and that possession in pursuance of this application had been given to the first respondent the next day. However, according to learned counsel, in accordance with the usual practice of the Court, possession had been given by the bailiff of the Courts to the first respondent's agent because the first respondent was not available. The result was that on account of a mistake by the bailiff, possession was not given of the Survey Numbers to which the first respondent was entitled but of some wrong Survey Numbers. However, arguments continued on 28‑9‑1971, and on that day Mr. Naimuddin referred me to the first respondent's counter‑affidavit in this Court which completely belies Mr. Bhutto's explanation. In para. 5 of this counter‑affidavit the first respondent stated; "that in the execution of the decree of High Court I got possession of my land through bailiff of the Court on 25‑7‑1961, and I gave such receipt in the Court of Assistant Judge, Dadu on 25‑7‑1961." He has thereafter stated in his affidavit that "as the appellant had filed an objection, the Court had stayed its own order, therefore he had not remained in actual possession of the suit land for even one day". In the first place, Mr. Bhutto's explanation cannot be reconciled with the first respondent's averments in his counter‑affidavit. Secondly, as the first respondent had admittedly received posses sion in pursuance of his execution application, it is obvious that he was not entitled to file another execution application unless he was dispossessed by the Court; hence his plea that he had been dispossessed by the trial Court at the instance of the appellant. But when I invited the learned counsel to refer me to evidence in support of this plea, he admitted that he could not do so. He however submitted that the execution pro ceedings had been stayed by the Supreme Court in the appeal filed by the appellant, but once again Mr. Bhutto could neither refer me to the alleged application of the appellant or to the stay order. Instead, he referred me to a letter by a Deputy Registrar of the Supreme Court which refers to the stay order granted by their Lordships, This reference is however not sufficient to prove that the first respondent had been dispossessed in appropriate proceedings on account of the stay order of the Supreme Court, The result is that the first respon dent has failed to prove that he had been dispossessed as alleged by him, therefore it Is obvious that a second execution application for possession was not maintainable, as rightly submitted by Mr. Naimuddin.

4. Additionally, I have to point out here that I have examined the execution application filed by the first respondent in support of this application does not state that he had obtained possession in pursuance of his execution application, on 25‑7‑1961 and that he had thereafter been dispossessed. In these circumstances, I am not able to believe his plea that he had been dispossessed either on account of a stay order given by the trial Court or on account of the stay order of the Supreme Court, therefore even if I assume for the sake of argument that the first respondent was not in possession of the land in Group A his remedy was not by way of a second execution application. It is thus clear that the trial Court had erred 9n allowing the first respondent's second execution application.

5. Mr. Naimuddin's second argument was that the trial Court had acted perversely in appointing a Receiver because the affidavit of the first respondent in support of his Order XL, rule 1, C. P. C. application did not make out any grounds for the appointment of a Receiver. In view of this submission I have examined the affidavit. It does not contain any allegation of waste and merely states that the disputed land is cultivated, therefore it would be just and convenient to put the disputed property in custodia legis. I agree with Mr. Naimudin that this affidavit did not make out any case for the appointment o a Receiver, and on this ground also the impugned order is illegal. However, I have further to observe here that, as the first respondent's plea was that he had been dispossessed from land to which he was entitled under a decree. It is strange that he should have asked for the appointment of a Receiver on such flimsy grounds, and this is another circumstance which casts doubt on the explanation given by him for his alleged dis possession from the land awarded to him under the High Court's judgment and decree.

6. As the trial Court erred in allowing the first respondent's applications of 1‑9‑1965, it follows that the impugned orders are illegal, therefore, for the reasons given herein, this appeal was allowed without costs on 28th Septem ber 1971. K. B. A. Appeal accepted.