Wrongful possession

2014 CLC 1019 KARACHI-HIGH-COURT-SINDH Judicial Precedent

S. 144 & O. XX, R. 12(1) (b)Delivery of possession of property to the plaintiffs by Nazir of High Court in execution of decree which was set asideReversal of decreeWrongful possessionMesne profit, recovery ofApplication on behalf of Official Assignee for restitution of said property acquired by the plaintiffsScope

Property/benefits of decree must be restored to the position as the same was on the date of passing of decree which had been set aside/reversed

Court was bound to place the parties in the position which they would have occupied prior to execution of decree

Such was directory for the court to pass order consequential on such variation or reversal of decree; order to include refund of cost, payment of interest even damages and compensation and mesne profit by the beneficiary of the decree for the period he had enjoyed the property or any other benefit but for the decree

Property should be restored to the Nazir of High Court through whom plaintiffs had acquired possession of the same

Decree had been reversed and plaintiffs were to be placed in the position which they had occupied prior to such decree

Official Assignee was not party when execution was ordered and decree was set aside

Suit would revive along with pending applications on remand or setting aside of judgment and decree

Official Assignee/Liquidator had first to prove that he was dispossessed from the property in execution of decree

Possession of property could not be handed over to the Official Assignee as same would violate the status quo and even at that time neither he was party to the suit nor his claim of bona fide owner was before the court

Plaintiffs should hand over peaceful possession of suit property to the Nazir

Plaintiffs remained in possession of the suit property for more than 24 years and 6 months under a decree which had been reversed and their possession from the date of reversal of decree till date of possession was wrongful possession

Benefits enjoyed by the plaintiffs for such period were liable to be refunded which could not be determined without inquiry

Nazir was directed to hold inquiry to ascertain the mesne profit

Application was disposed of accordingly.