1979 PLP 446 (CLC)

Milkhi Ram v. Basant Singh A I R 1931 Lab. 686 ; Sabha Ram v. Tulsi Ram A I R 1924 All. 693 ; Kiran Shashi Dassee v. Offcial Assignee, Calcutta A I R 1933 Cal. 246 ; Jagannath Brij Raj and another v. Khoja Fakhruddin A I R 1935 Nag. 212 ; Daroga Prasad Sahu v. Bhagwati Prasad Singh A I R 1935 Pat. 253 ; Nityananda Kanugo v. Sint. Pala Del A 1 R 1952 Orissa 120 ; Ouseph George v. Varkey Valey A I R 1953 Trav.-Co. 123 ; Digambar Rao v. Dhondu A I R 1953 Hyd. 4 ; Gangula Gopal Reddy v. Lachma Reddy A 1 R 1955 Hyd. 58 ; Janki Mohan v. Dr. S. Samaddar and others A I R 1962 Pat. 433 ; Motamari Ramiah v. Kumair Malhat A I R 1962 Andh. Pra. 72 and Sh. Muhammad Jahangir v. Muhammad Ibrahim and another P L D 1953 Lab. 525 ref. Mst. Sahib-un Nissa and others v. Mahmooda Begum P L D 1959 Lah. 511 dissented from. Sh. Muhammad Jahangir v. Muhammad Ibrahim and another P L D 1955 Lah. 525 approved. (h) Civil Procedure Code (V of 1908)- -- S. 151 read with O. XLIII, r. I-Order passed under S. 151- Held, not open to appeal.-[Appeal (civil)]. Syed Tanseer Asghar for Petitioner. Anwar Ahmad Khan Sherwani for Respondents. Dates of hearing : 19th, 25th and 26th October, 1970, This petition arises out of an order dismissing the petitioner's appeal on the basis of a report of the referee appointed by the parties before the appellate Court.

2. The facts are that Rafiq-ud-Din and Shafiq-ad-Din, deceased predecessor of respondents Nos. 2 to 10 filed a petition under section 13 of the West Pakistan Urban Rent Restriction Ordinance for ejectment of Nasir-ud-Din Khan on the 12th of October, 1970. This petition was allowed and Nasir-ud-Din Khan was directed by the learned Rent Controller to be evicted from the property in dispute on the 5th of April, 1971. Nasir-ud-Din Khan challenged this order by way of an appeal before the appellate Authority who dismissed the same on the 3rd of July, 1971. Thereafter a second appeal from order filed by Nasir-ud-Din Khan was dismissed by this Court on the 1st August, 1971. Admittedly the decree was never executed nor any opportunity to actually dispossess or to resist the execution of the decree arose. Despite this an objection petition under Order XXI, rule 99 and 101 C. P. C. was filed by one Zaffar Shah on the ground that he being in possession of this property in his own right, could not be ejected in execution of the order of eiectment passed against Nasir-ud-Din Khan This petition was dismissed by the Executing Court on the 2nd of March, 1973. The--after a review petition was filed by Zaffar Shah which was dismissed on the 7th of July, 1975, An appeal filed by him against the original order of dismissal of his objection petition, on the 8th of July, 1975 was thereafter dismissed on the 17th February, 1976.

3. The petitioner also submitted a similar application in which a belated claim was made on the same score as was done by Zaffar Shah, but the same was dismissed by the learned Civil Judge (Executing Court) on the 2nd of March, 1976. It is clear from the order that this objection petition was filed by the petitioner on the 15th February, 1976, i.e. two days before the dismissal of the appeal of Zaffar Shah. The learned trial Court did not consider it fit to frame any issues or record any evidence. The petitioner, therefore, filed an appeal before the learned Additional District Judge, Lahore. During the pendency of the appeal the two parties agreed to refer the matter to a referee namely Mr. Riaz Abbas, Advocate. It was agreed that the appeal may be decided in accordance with the statement of the referee. Mr. Riaz Abbas, Advocate, inspected the spot and made some inquiries from which it was proved that the petitioner was not occupying the house in dispute which was in fact occupied by -Nasir-ud-Din. He found that the owner's sister's son or brother's son was also living in the house. About Ali Hussain he stated that he came to see Nasir-ud-Din Khan, judgment debtor only off and on. The learned appellate Court dismissed the appeal on the basis of this statement on 22nd June, 1976.

4. This petition against the above order was admitted to a regular hearing to consider an argument of the learned counsel that Mr. Ria Abbas, Advocate, was not a referee in the true sense but was acting as an arbitrator and consequently without following the procedure under the Arbitration Act the appeal of the petitioner could not be dismissed or disposed of.

5. Elaborate arguments on the above point were addressed by the learned counsel for the petitioner. He relied upon Mst. 4kbari Begum v. Rehmat Hussain and others (A I R 1933 All. 861), Udit Singh and others v. Ram Lakhan Singh and 8 others (A I R 1933 All. 313) and Lakshmi Narain v. Ram Babu and another (A I R 1953 Ail. 9) to bring about the distinction between a referee and an arbitrator. For distinguishing between a mediator and an arbitrator he further relied upon Muhammad Akram and others v. Ch. Muhammad Salim (P L D 1963 Lab, 490) and Ch. Muhammad Saleem v. Muhammad Akram and others (P L D 1971 S C 516).

6. It is clear from these authorities that a referee is a reason who acts on his own knowledge and belief and not a person who is e appointed to decide the matter after inquiry and after taking other evidence. I, therefore, agree to this extent with the learned counsel for the petitioner that Mr. Riaz Abbas did not act as a referee in the case; he acted as an arbitrator.

7. The learned counsel for the respondents; however, drew my at tention to the provisions of rules 99 and 101 of Order XXI, C. P. C. and submitted that the execution has been with held for the last several years only on account of these frivolous and vexatious applications filed under these rules by Zaffar Shah and the petitioner. He also submitted that one Shafi-Ullah Khan, the son-in-law of Nasir-ud-Din submitted yet another petition under the same rule which was dismissed by the executing Court and now an appeal against that order is, also pending.

8. These objections give rise to one more important point and that is whether the proceedings started at the instance of these different persons under rules 99/101, C. F. C. can be said to be proceedings either under one rule or the other. To be more precise whether objections to the execution of the decree by third persons in anticipation of their ejectment are competent before the executing Court.

9. Rule 99 is to be read in the context of the provisions of rules 97 and

98. Rule 97 provides that where the execution of decree of possession is resisted or obstructed by any person, the decree-holder may make an application to the Court complaining of such resistance or obstruction. In such case the Court shall fix a day for investigating the matter and shall summon the person who has put in resistance or obstruction. Rule 98 provides that if the Court is satisfied that the resistance or obstruction was occasioned without any just cause by the judgment-debtor or by some other person, it shall direct that the applicant be put in possession of the property. It also provides some procedure for the execution of the decree by detention of such persons in the civil prison. Rule 99 then says that when the Court is satisfied that the resistance or obstruction was occasioned by any person, other than the judgment-debtor, claimir1 in good faith to be in possession of the property, on his own account or on account of some person other than the judgment-debtor it may make an order dismissing the applica tion meaning thereby the application under rule 97 submitted by the decree-holder. Rules 100 and 101, C. P. C. deal with a case where the decree is executed and any person who is in possession of the property. in his own right and is not bound by the decree, is dispossessed. Under rule 100, C. P. C. such a person can apply on the Court complaining of his dispossession. The rule further provides that in sueh contigency the Court shall investigate the matter. Then follows rule 101 which states that where the Court is satisfied that the applicant was in possession of the property on his own account, or on account of some person other than the judgment-debtor, it shall direct that the applicant be put into possession of the property. Rule 103 may also be noticed at this stage. Before its amendment by the Law Reforms Ordinance. 1972 it provided that in case of decision of applications of the decree holder under rule 97 or of the person claiming to have been illegally dispossessed under rule 10:; C. P. C. the aggrieved party shall have a right to file a separate suit for determination of the question involved therein in non-summary regular proceedings. The Rule as it stands now bars a separate suit. This provision follows the principle on which section 47, C. P. C. is based. The common principle enunciated is that certain matters relating to execution of decree should be within the jurisdiction of the Executing Court, which cannot otherwise go behind the decree. 9-A. It will be clear from these provisions that none of these petitions filed by Zaffar Shah or the petitioner etc. could be treated to be petitions under rule 99 or 101, C. P., C. As stated above, a petition under rule 99 is the one which has been submitted by the decree-holder under rule 9; C. P.

1. Rule 101, C. P. C. shall apply only to case of dispossession. An application submitted by a person who is not bound by the decree and who claims to be in possession otherwise than under' the decree-holder and who had never resisted the execution of the decree is not covered by either provision.

10. Faced with this difficulty, the learned counsel for the petitioner relied upon a Single Bench case, Mst. Sahib-un-Nisa and others v. Mst, Mahmooda Begum (P L D 1959 Lah. 511). It was held in that case that the provisions of rules 99 and 100, C. P. C. are not the only provisions under which the Court can consider whether the decree should be executed against a person who is not bound by the decree. It was further held that the Court has inherent jurisdiction while executing a decree to determine how and to what extent and in what manner the decree shall be executed. B. Z. Kaikaus, J. who decided that case dissented from Sh. Muhammad Jahangir v. Muhammad Ibrahim and another (P L D 1955 Lah. 5:5) in which it was held that such an application under cover of rules 99 and 100 of Order XXI was not competent at all. 10-A. I have gone through the whole of the judgment. I find that many points have not been considered in it. The first point is that the authority has opened a flood gate for abuse of the process of the Court and has opened the way for the judgment-debtors to file such applications before the executing Court through third persons like Zaffar Shah, Ali Hussain, petitioners thus rendering it impossible for the Court to execute the decree for several years. Certainly this is not the intention of the Legislature and this authority does not advance the intention. The law has clearly laid down the procedure for disputing execution by a person claiming to be in possession of the property, possession of which is required to be given to the decree-holder. He can either resist or obstruct the execution of the decree or tile an application under rule 100, C. P. C. after he is dispossessed from the property. There are several reasons why inherent powers cannot be invoked for adjudicating upon such applications. The main principle is that (where there are express provisions of law applicable to a particular case, there is no inherent power in the Court to override them or to bypass them). Inherent powers can be exercised only where there is no express provision in the Code of Civil Procedure. The provisions of rule 97 to rule 103 being express provisions (a) defining jurisdiction of the executing court to decide rights of a third party who claims not to be bound by the decree for possession and (b) providing for the procedure thereof (resort can not be had to inherent powers to by pass these provisions by entertaining objection petition of such third party on his anticipating his dis-possession ). Secondly the overriding principle is that the executing court is bound to execute the decree as it is. It can not question the decree. The main ground for invoking the inherent powers of the Court given in Mst. Sahib-un-Nissa's case is that the executing Court has to determine how and to what extent and in what manner the decree shall be executed. The Court can therefore in exercise of inherent jurisdiction take cognisance of objection application by third parties. Respectfully speaking the extent to which the decree shall be executed can be determined either on the language of the decree or the provisions of law .It is clear from the mandatory provisions of rule 17 of order XXI ( It is only in a case where the application for execution does not comply with the provisions of rules 11 to 14 of the above order that a discretion is conferred on the executing court to reject application or to allow the defect to be remedied by amendment where once an application is admitted the executing court is bound under sub rule (4) of rule 17 to order execution according to the nature of the decree. Hargobnind Kishn chand v. Hakim Singh & Co. (AIR 1926 Lah. 110 =1 L R 6 Lah. 548). The, Court has no power to decline attachment on the ground that the property is mutated in the name of some other person. Ataul Haq v. Ghariya Lal and others (A I R 1935 Lah. 114). This matter can be decided only on objection under Order XXI, rule 58, C.P.C. and not at an earlier stage. In view of the principle that the executing Court is bound to execute the decree, such Court has no power to decide' any matter derogating from the execution except where specific jurisdiction has been conferred upon it. Such jurisdiction has been conferred by section 47, Order XXI, rule 58 and rules 97 to 103, C.P.C. No scope in these circumstances is left for invocation of inherent powers.

11. As early as 1872 it was pointed out by their Lordships of the Privy Council in the General Manager of the Raj Durbhunga v. Maharaja Koomar Ramoput Singh ((1872) 14 M I A 605) that ("the difficulties of a litigant in India begin when he has obtained a decree"). It is a matter of common' K knowledge that too many obstacles are put by the judgment-debtor to' the execution of the decree, taking advantage of the provisions of section 47, Order XXI, rules 58 to 63 and Order XXI, rules 97 to 103, C.P.C. The Courts, must, therefore, try to alleviate the miseries of a decree-holder by at least discouraging frivolous objection petitions for which there is no provision in the Code of Civil Procedure. If such applications under the inherent powers are allowed to be made, that makes the task of the Court extremely difficult. 1t also makes the execution of the decree impossible in certain cases for decades. It is no doubt true that it was observed in Mst. Sahib-un-Nissa's case by the learned Judge that it is within the discretion of the Court to consider whether it would or it would not determine the question before hand, but in cases, where such an application is made by a person alleging to be in possession of the property in his own right, it becomes almost impossible for the Court to determine at the initial stage whether to refuse to exercise discretion of entertaining the application. He can come to this conclusion only after serving the other party and after going through the circumstances of the case. I am of the view that where the Legislature has made specific provisions to meet a particular contingency it is not meet or proper to entertain a cause under the inherent powers of the Court. The consideration of any hardship to the objector in case of his dispossession is of no importance. There are certain hardships which cannot be. avoided in judicial proceedings. The hardship of the decree holder to which the Privy Council referred as far back as 1872 is one of those difficulties. This consideration does not, therefore, justify and addition to the already existing specific provisions of the Code of Civil Procedure.

12. The view I am taking is not without considerable authority. It has consistently been held by the Courts in India and Pakistan that an anticipatory petition by a third person is not competent in the executing Court before his actual dispossession. Milkhi Ram v. Basantl Singh (A I R 1931 Lah. 686); Sobha Ram v. Tulsi Ram (A I R 1924 All. 693); Kiran Shashi Dasseee v. Official Assignee, Calcutta (A I R 1933 Cal. 246), Jagannath Brij Raj and another v. Khoja Fakhruddin (A 1 R 1935 Nag. 212); Daroga Prasad Sahu v. Bhagwati Prasad Singh (A I R 1935 Pat. 253) Nityananda hanungo v. Shrimati Paladevi (A 1 R 1952 Orissa 120), Ouseph George v. Yarkey Yaley (A I R 1953 Trav-Co. 123); Digumbar Rao v. Dhandu (A I R 1953 Hyd. 4) ; Gangula Gopal Reddy v. Lachma Reddy (A I R 1955 Hyd. 58) Janki Mohan v. Dr. S. Somaddar and others (A I R 1962 Pat. 403) ; Motamari Ramiah v. Kumair Malhat (A I R 1962 Andh. Pra. 72) ; Sh. Muhammad Jahangir v. Muhammad Ibrahim and another. In some of these cases was considered the question of applicability of section 151, C. P. C. to such anticipatory applications but it was not held to be inapplicable in view of the specific provisions of rules 97 and

100. Janki Mohan v. Dr. S. Samaddar and others; Digambar Rao v. Dhondu; Nityanunda Kanungo v. Smt. Pala Devi. In the last case it was further held that "exercise of inherent powers could not also be supported on the ground that it is intended to prevent abuse of process or helped to shorten litigation. The insistence of a party before the Court on the procedure permitted by the law, does not normally amount to abuse of process of Court unless there are reasons to think that in the circumstances of a particular case, it amounts to harassing, vexation and oppression". But I am of the settled opinion that (the permission to exercise inherent powers at the instance of the prospective obstructer at the stage of mere anticipation widens the area of litigation and opens a way for abuse of process of Court.). In my view, therefore, the rule laid down in Sh. Muhammad Jahangir v. Muhammad Ibrahim and another and the above-mentioned cases is a correct rule and is in accordance with the statutory provisions. I, therefore, dissent with the dictum laid down in Mst. Sahib-un-Nissa and others v. Mst. Mahmooda Begum despite the utmost respect that I entertain for the knowledge and legal acumen of the honourable Judge who decided that case.

13. Assuming as laid down in Mst. Sahib-un-Nissa and others v. Mahmooda Begum that inherent powers of the Court may be invoked by third persons the order passed by the trial Court will not be subject to a right of appeal since no appeal can lie against an order passed under section

151. The appeal before the learned Additional District Judge was not, therefore, competent and was liable to be dismissed as such.

14. This petition is, therefore, dismissed for all these reasons but 1 leave the parties to bear their own costs. K. M. A petition dismissed.