P L D 1952 Peshawar 59 (PLP)

MUHAMMAD SHAFI, J.‑Mir Ghazan Khan, son of Abdullah Khan, got an ex‑parte decree on 31st May 1950, against Mst. Aziza and Mst. Zarbaha, for the possession of a house, situated in village Ismaila, standing on 8 marlas of land, and bounded as under :‑ North‑House of Faqir East‑House of Asim Khan. South‑House of Wazirzada. West‑House of Pardool Khan. He, then applied for the possession of the property which was given to him with the help of the Police on 22nd Decem ber 1950. Before that, however Haider Shah, Ali Harder, Ghulam Qadir and Sharif Gul had put in objections under O,XXI, rule 99 Civil P. C., which were dismissed on 25th November 1950. Asim Khan, Sharif Gul, and Mst. Zar Baha, who were separately in possession, of three kothas in the house handed over the possession, but stated that they would fight for their rights in a Court of law, by which they presum ably meant that they had a right to retain the possession of the house, and were not liable to be dispossessed therefrom, in the execution of any decree in which they were not parties. On 22nd February 1951, the said Asim Khan instituted a suit under section 9 of the Specific Relief Act against the said Mir Ghazan Khan for the redelivery of the possession to him of the house the possession of which was given to the defen dant in execution of his ex‑parte decree. It was alleged in the plaint that the Sub-Judge had no authority to order the delivery of physical possession of the property in suit to the decree‑holder. The defendant fought this case inter alia on the ground that no suit under section 9 of the Specific Relief Act was competent. The following three issues were framed in the case :‑

1. Whether the plaintiff was in possession of the suit- property within six months prior to the institution of the suit, and has been wrongfully dispossessed ?

2. If so, whether the plaintiff is entitled to claim relief under section 9 of the Specific Relief Act ?

3. Relief. On issue No. 1. the learned trial Court came to the con clusion that the plaintiff had been wrongfully dispossessed from the house, because the defendant was not entitled to take possession from him, he being not a party to the suit in which the ex‑parte decree was granted in his favour. Having found this issue in favour of the plaintiff, he granted him the decree prayed for. Mir Ghazan has come up on revision to this Court. The facts of the case are not denied, and they have been fully reproduced above. The plaintiff got the possession of the house in dispute in due course of law. Under section 9 of the Specific Relief Act, a suit can only be maintained if a person is dispossessed without his consent of immovable property other wise than in due course of law: Taking the plain meaning of the above provision of law, then the plaintiff stands non‑suited without any further inquiry into this case. It has, however, been contended that‑the plaintiff was in possession of the property, and he was no party to the suit in which ex‑parte decree was granted in favour of the defendant. Legally speaking, therefore, the defendant was not entitled to be given the physical possession of the suit‑house, and the plaintiff dispossessed therefrom.' Since the plaintiff was as a matter of fact dispossesse6 in execution of a decree in a suit to which he was not a party, his dispossession will not be taken as in due course of law. The expression "in due course of law" used in section 9 of the Specific Relief Act is not synonymous with the word "legal". If a certain person obtains the possession of a certain property in due course of law, although in granting possession the Court has not acted strictly according to law, still the delivery of possession would be in due course of law, and a suit for getting back the possession of the property under section 9 of the Specific Relief Act would not‑be maintainable. It is not for al Court, that is hearing a suit under section 9 of the Specific Relief Act, to sit as a Court of appeal against the executing Court, and find out whether the Court acted according to law or not. It has got to take the order of the Court on its ,face value, and presume it as correct and legal, and then proceed on to decide the suit under section 9 of the Specific Relief Act. The expres sion "due course of law" has in many cases been interpreted as being in contrast with the acting of one's own authority, or acting without the intervention of the Court. If A dispossesses B without the intervention of the Court, although his act may be perfectly legal, still if it is not done with the intervention of the Court a suit tinder section 9 of the Specific Relief Act perhaps will be maintainable, but where A dispossesses B with the intervention of the Court, in my view, the dispossession takes place in due course of law, and cannot be questioned in a suit under section 9 of the Specific Relief Act. A person who has wrongly been dispossessed in execution of a decree has got a remedy open under O. XXI, r. 100 Civil P. C. under which he can apply to be put back in possession of the property of which he has been, dispossessed. The executing Court has the juris diction if it finds that the applicant's claim is correct, to put him back in possession of the property under O. XXI, rule 101 Civil P. C. In presence, of these provisions of law, I think a suit under section 9 of 'the Specific Relief Act will obviously be mis‑conceived. I am consequently of the opinion that the present suit was not maintainable, and should have been dis missed on this ground alone. The result is that I accept this revision petition, set aside the judgment and decree of the learned lower Court, and dismiss the plaintiff's suit with costs throughout. Orders announced, A.H. Petition accepted.