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Petitioner: Syed ALTAF HUSSAIN AND Another VS Respondent: Mian FAZAL ILAHI AND 2 Other
Court Name: Lahore High Court Judge(s): Karam Elahi Chauhan Title: Syed ALTAF HUSSAIN AND Another vs Mian FAZAL ILAHI AND 2 Other Case No.: Second Appeal No. 392 of 1969 Date of Judgment:1971-02-11 Reported As: PLD 1974 Lahore 502 Result: A.
JUDGMENT
JUDGMENT On the 29th of April 1964, (1) Syed Mehdi Hasan and (2) Syed Altaf Hussain (hereinafter called the plaintiffs/landlords/decree-holders) filed an application, which was registered as Case No. 40/2 of 1964, under section 13 of the West Pakistan Urban Rent Restriction Ordinance (VI of 1959) against' M. A. Rashid (hereinafter called the defendant/tenant/ judgment-debtor) for eviction from bungalow bearing No. S. E. 14 R. 26, (except two rooms), situated on Empress Road, Lahore. (I have given the aforesaid nomenclature to the parties for the purposes of appreciating the provisions of the Code of Civil Procedure, the discussion of which hereinafter is involved; similarly to remain consistent the case filed by the landlords will some time be referred to as a "suit"). The case of the plaintiffs was that they were transferees of the said property from the Settlement Department and had served the requisite legal notice on the defendant to pay rent but he had failed to do so. The petition further pleaded that the bungalow in dispute had been initially constructed for residential purposes and the defendant at one stage got it transferred in his name by filing an N. C. H. Form and then after receiving some illegal profit surrendered it in favour of one Ehsanul Haq. However, later on when it transpired that the defendant was a local and not a displaced person and was not eligible to the transfer of the property, the same was cancelled from his name, and was transferred in favour of the plaintiffs, but the defendant in order to cause loss to them started damaging the building. Some time thereafter he brought in one other person, Mian Fazal Elahi, in this bungalow and after entering into an agreement with him set up a karkhana under the name of `Ahsan Industries' four manufacturing rubber goods therein. Even though the bungalow was neither in an industrial area nor was it give to the defendant for setting up a karkhana, still there were set up heavy engines, machines, ovens and other stores for coal and other goods, due to which the
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building, suffered a great damage. The roof of the building, floors and walls, got cracked. The minimum damage which occurred in this way due to the activities of the defendant and his sub- tenant was Rs. 20,000. The value of the bungalow and its utility had very much decreased and that the karkhana was even otherwise a nuisance to all neighbours due to bad smell, odour and gases emanating from it. After making these assertions it was pleaded that the defendant was liable to eviction because--- (i) lie had not paid the rent, (ii) he had damaged the building of the bungalow and had dwindled its value, status and utility, (iii) the bungalow had been converted into an unauthorised use by setting up a karkhana therein, (iv) he had put up a sub-tenant in it, and (v) he caused nuisance due to gases, odour and bad smell emanating from the karkhana. 2. 'These allegations were denied by the defendant by a formal written statement, in which initially the relationship of landlord and tenant was disputed but this plea was later on given up vide statement of the defendant made in Court on the 30th of July 1964, wherein he agreed to accept the plaintiffs as landlords and expressed willingness to deposit the rent. Consequently, the learned Rent Controller, on the 17th of December 1964, directed him to deposit the rent. So far as the merits of the case are concerned, it was denied that he had sublet the bungalow or that Mian Fazal Elahi was his sub-tenant. It was pleaded that the karkhana, Ahsan Industries, was in operation since 1958, in which Mian Fazal Elahi had been taken by him as a partner. The stage for putting the controversies in specific issues did not arise because the defendant did not deposit the rent, with the result that the learned Rent Controller, on the 9th of February 1965, struck off his defence, under sub--section (6) of section 13 of the West Pakistan Urban Rent Restriction Ordinance (VI of 1959 and directed him to put the plaintiffs in possession of the disputed property forthwith, indicating that in case of his failure to do so, the plaintiffs may apply for the execution of the order to a civil Court. It appears that the defendant put up a great struggle on the Settlement side inasmuch as the case came to this Court about three times in the form of Writ Petitions viz. W. P. No. 1337/R.61, W. P. No. 1421/R. 62, (decided together) and W. P. No. 647-R of 1964. 3. The landlords applied for execution of the above decree by means of an execution application dated 20-2-1965, registered as Case No. 23/10 of 1965. Entries in Columns Nos. 2, 7, 9 and 10 of the execution application ,are worth reproduction. They are as follows ------- A perusal of the above entries will show that the execution application was filed against the judgment-debtor, and execution was sought against him and his representatives and persons claiming through him. On this execution application, usual warrant for possession under Order XXI, rule 35, C. P. C., on the prescribed printed form was given to the bailiff of the Court against the judgment-debtor for putting the decree-holders in possession with permission to oust any such person who was bound by the decree but who might refuse to vacate the same. This process was returned unsatisfied by a bailiff with a note of objection and obstruction on the part of Fazal Elahi proprietor Ahsan Industries and submitting that for execution of warrant permission to obtain police help and for breaking open the locks and doors may be granted. The aforesaid report of the bailiff along with an application of the decree-holders under Order XXI, rule 98, C. P. C. Came up for consideration on 2-3-1965. In that application the decree-holders submitted that the judgment- debtor, M. A. Rashid (respondent in the execution application) had taken up the plea in the main case that he was the owner of Ahsan Industries and that he had joined Fazal Elahi as a partner therein and by means of an express agreement had undertaken to deliver the possession to the decree-holders. Even otherwise, it was proved (it was so contended in the application) that Fazal Elahi had entered into the premises through M. A. Rashid, the judgment-debtor and, therefore, possession may be delivered with police help by breaking open the locks and doors. A copy of the agreement dated the 12th of February 1965, of which reference was made in the application, was
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annexed therewith. That agreement contained certain important recitals on the part of M. A. Rashid, the judgment-debtor, to the following effect :--- "And whereas Syed Mehdi Hasan filed an application for ejectment of Mr. M. A. Rashid from the disputed property, in the Court of the Senior Civil Judge, Lahore with the powers of Rent Controller, and an order of ejectment was passed on 9-2-65 on account of the default of Mr. M. A. Rashid in depositing the rent in pursuance of the order of the Rent Controller;---- And whereas one Mr. Fazal Elahi son of Mian Muhammad Ramzan, Sheikh, resident of 45, Dil Muhammad Road, Lahore had occupied a part of the disputed property with the permission of Mr. M. A. Rashid but without the permission of Syed Mehdi Hasan, and had installed a rubber factory there;--- Now these presents witness and the parties hereby agree as follows;---- (1) That Mr. M. A. Rashid has already filed on his own accord a petition for withdrawal of the Writ Petition No. 647-R/64 pending in the High Court and acknowledges the title of Syed Mehdi Hasan in all respects. (2) That Mr. M. A. Rashid will not further 'contest the ejectment case decided by the Court of Rent Controller, Lahore and will deliver the possession of the premises of the disputed property to Syed Mehdi Hasan, Mian Fazal Elahi why has occupied a part of this property through Mr. M. A. Rashid, having no right of his own, for retaining the possession will leave the premises or would be ejected in due process of law and Mr. M. A. Rashid will not give him any protection or support. (3) That Syed Mehdi Hassan will not demand the arrears of rent from Mr. M. A. Rashid, As Mian Fazal Elahi bas been getting the real benefit of the use of the property in the previous years, Syed Mehdi Hassan may recover from him the amount due for the use and occupation of the premises. (4) That the parties to this agreement having determined all their pending disputes, will not make on each other any other claim and will not act against the interests of each other but will act in complete understanding and goodwill for carrying out the terms of this agreement for protecting each other's rights." 4. Notice of the above application was issued to Mian Fazal Elahi, proprietor of Ahsan Industries, for 19-3-1965. By that date (I) Mian Fazal Elahi filed an application against (i) Syed Mehdi Hasan, (d), Syed Altaf Hussain (decree-holders) and (iii) M. A. Rashid, judgment-debtor, under Order XXI, rule 99, read with section 151, C. P. C., stating that they were not putting up in the premises on account of respondent No. 3, therein, namely, the judgment-debtor, and that the execution application filed against the judgment-debtor may be dismissed. This application was registered as No. 5/11 of 1965. At this stage, the entire proceedings seem to have been consolidated and recorded in this latter file and on the pleadings of the parties, the learned Executing Court framedthe following issues :- (1) Whether the objectors are in possession of the property in good faith and on their own account ? (2) If Issue No. 1 is not proved, whether the decree-holders are entitled to Police assistance for the execution of the warrant of delivery of possession of the disputed property ?. The parties led evidence on the above issues and the learned Executing Court on Issue No. 1 held that the objectors were not liable to be ejected from the premises in pursuance of the ejectment order passed against the principal tenant M. A. Rashid who was not in possession and that the objectors were not his licensees but were in occupation in their own right. According to the learned Executing Court, the objectors had not been impleaded as party in the ejectment application which was fatal to any execution being taken against them. In view of the findings on Issue No. 1, the learned Executing Court held that Issue No 2 did not arise. As a result of the finding, hereinbefore mentioned, the learned Executing Court by means of a composite order, dated the 7th of September 1967, dismissed the Execution Application and accepted the petition of the objectors leaving the parties to bear their own costs.
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5. The landlords/decree-holders filed an appeal which was dismissed by the learned Additional District Judge, Lahore: on the 28th of March 1969, on the ground that it was not maintainable inasmuch as the order under appeal could not be said to have been passed under section 47 of the Code of Civil Procedure. The landlords have come up in second appeal to this Court. 6. Learned counsel for the respondents has raised the same objection which was successfully raised before the lower appellate Court and has contended that no first or second appeal against order/decree of the learned Executing Court, dated 7-9-1967, is maintainable and that the present appeal should be dismissed on that short ground. He has raised the following points in support of his contention;---- (a) That section 96 of the Code of Civil Procedure, which allows an appeal from every decree, is pre-fixed with the sentence :---- "Save where otherwise expressly provided in the body of this Code or by any other law for the time being in force", which means that if in the body of the Code it is expressly provided that no appeal is to lie from any decree then an appeal cannot be preferred by invoking the provisions of section 96 simpliciter because that section is to yield to any provisions to the contrary. Taking the argument further, it was submitted that since in rule 103 of Order XXI, it is written that :- "Any party not being a judgment-debtor against whom an order is made under rule 98, rule 99 or rule 101 may institute a suit to establish the right which he claims to the present possession of the property, but, subject to the result of such suit (if any), the order shall be conclusive," this is an express provision to the contrary indicating that in cases mentioned in rule 103 of Order XXI, an appeal is not maintainable and the only way to take exception to the orders referred to therein is to file a suit. Emphasis in this respect is laid on the word `conclusive' in rule 103 of Order XXI, which according to the learned counsel for the respondents ousts the remedy of appeal. (b) That in section 2(2), C. P. C., which contains the definition of the word `decree'; it is written that :- " . . . . . It shall be deemed to include . . . . . The determination of any question within section 47 . . . . ." "All questions arising between the parties to the suit in which the decree was passed, or their representatives, and relating to the execution, discharge or satisfaction of the decree, shall be determined by the Court executing the decree and not by a separate suit." "Where a question arises as to whether any person is or is not the representative of a party, such question shall, for the purposes of this section, be determined by the Court." It is argued that there is a difference between "determination of any question within section 47" (as contemplated in section 2(2), C. P. C.) on the one hand, and the determination of a question for the purposes of section 47 (as envisaged in subsection (3) of section 47, C. P. C.) on the other hand. The precise submission is that determination of a question as to whether a person is a representative of the party to the suit is not a determination within section 47, though it may be a determination for purposes of that section and, therefore, it is not a decree and is not appealable under section 96, C. P. C. (c) That in section 47, C. P. C., the question to be determined must be `relating to execution, discharge and satisfaction of the decree'. The question of the kind under consideration in this case (namely whether a person is representative of the judgment-debtor or not) is not "relating to execution". (d) That it is not every order with regard to the status of an objector which is appelable. It is argued that if the Executing Court holds that the objector/obstructer is a representative of the judgment-- debtor then that order falls under section 47, C. P. C. And would be appealable, but if it is held otherwise then it is not appelable. In other words the maintainability of an appeal depends upon and is regulated by the finding of the Executing Court and not on the wording of section 47, or section 96 or section 2(2) of the Civil Procedure Code.
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First Phase The first phase is when an applicant applied for an execution of a decree for delivery of possession of an immovable property under Order XXI, rule 11 read with rule 35 and section 146, C. P. C., then, two questions arise before the Executing Court. One is whether the applicant is the plaintiff- decree-holder or his representative and the second is whether the person against whom execution is sought, is the defendant-judgment-- debtor or his representative and is bound by the decree. This question is to be decided under section 47 of the C. P. C., which reads as follows :----- "47. Questions to be determined by the Court executing decree.----(1) all questions arising between the parties - to the suit in which the decree was passed, or their representatives, and relating to the execution, discharge or satisfaction of the decree, shall be determined by the Court executing the decree and not by a separate suit. (2) The Court may, subject to any objection as to limitation or jurisdiction, treat a proceeding under this section as a suit or a suit as proceeding and may, if necessary, order payment of any additional court-fees. (3) Where a question arises as to whether any person is or is not the representative of a party, such question shall, for the purposes of this section, be determined by the Court. Explanation.-For the purposes of this section, a plaintiff whose suit has been dismissed and a defendant against whom a suit has been dismissed, are parties to the suit." A perusal of this section will show that when for example a person who wishes to execute the decree claims to be a representative of the plaintiff-- decree-holder and wishes it to execute against a person alleging that that person is a representative of the defendant-judgment-debtor, then this question is obligatory for the Court to decide. In this respect, the provision of the present section 47, C. P. C. Of 1908 may be compared with the provisions of the corresponding section 244 of C. P. C. Of 1882. In that earlier Code, the Executing Court had the option to determine or not to determine such a question and could leave the parties to get it determined from a civil Court. While bringing about the change, the Special Committee in its report printed on pages 179 to 200 of the Gazette of India, dated 7-9-1907 at page 189, wrote as follows :----- "Clause 47.-The Committee have omitted sub-clauses (a) and (b) of section 244 of the existing Code because they are strongly of opinion that question regarding the amount of any mesne profits or interest should be determined by the decree and not in execution. If this view is accepted it will be possible to exercise an effective control over the action taken by subordinate Courts in dealing with such matters. The Committee have redrafted sub-clause (3) and made it compulsory on the Court to determine questions arising as to representatives of parties. In their opinion it is inexpedient that separate suits should be instituted for the decision of such questions. The delay and expenses involved are often very great and result in the needless protraction of litigation. The explanation is intended to put an end to a conflict of judicial decisions." Reading subsection (1) and subsection (3) of section 47 together, in the light of the report of the Special Committee, it will be manifest that such a question must be decided by the Executing Court and not by a separate suit. See Bhuyan Shyam Sunder Molapatra and another v. Ch. Nilakantha Das and others (AIR 1956 Orissa 165and Parmeshari Din v. Ram Charan and others (1937 P C 260) affirming Pt. Ram Charan v. Parmeshwar Din (AIR 1933 All. 201) where it is laid down that a separate suit for possession against the transferee of a judgment --debtor pendente life does not lie at the instance of the decree-holder and he is bound to proceed in execution. Also see Abrupammal v. Thoyammal (117 I C 12;). In other words, institution of a suit on such a point is expressly barred. To contend therefore, that in a suit under Order XXI, rule 103, C. P. C., such a question can be determined is to negative the provisions of section 47. Rules in the Code, cannot be used to nullify the provisions contained in the body of the code itself and any contention which
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is based on such a design cannot be accepted. If the executing Court finds that the person concerned (namely, he who wishes to execute the decree or the one against whom the decree is sought to be executed), is a representative of the plaintiff-decree-holder, or of the defendant- judgment-debtor, as the case may be, the problem becomes simple and possession can be delivered by removing the aforesaid defendant --judgment-debtor or his representative. If, however, the finding of the Executing Court is that the applicant who desires execution of the decree is not a decree-holder or his representative or that the person against whom execution is sought is neither a judgment-debtor nor his representative then the case enters the second phase. Second Phase 9. In this phase (confining the discussion to the case of a judgment-- debtor) (which is the situation here), if the Court finds that the person against whom execution is sought, is not a judgment-debtor or his representative, and is not bound by the decree, then the questions which further arise are the following, namely. :----- (i) Whether the said person claims to be in possession of the property ; (ii) on his own account ; or (iii) on account of some person other than the judgment-debtor ; and (iv) in good faith ? The executing Court can after deciding these questions, deliver or refuse to deliver possession as the case may be. These questions are decided under rules 98, 99 and 101 of Order XXI, C. P. C. It is about these decisions that it is written in rule 103 of Order XXI, C. P. C., that, "Any party not being a judgment-debtor, against whom an order is made under rule 98, rule 99 or rule 101, may institute a suit to establish the right which he claims to the present, possession of the property; but, subject to the result of such suit (if any), the order shall be conclusive" The points of decision under the aforesaid rules are, therefore, in their very nature different from those which fall for determination under section 47, C. P. C. Thus if in a case an execution application pending between the parties to the suit is dismissed (in the first phase) on the ground that the person against whom its execution is sought, is neither judgment-debtor nor his representative and who as such is not bound by the decree, then it is a question determined under section 47, C. P. C. And is appealable. 10. The Executing Court should be careful in maintaining these two distinct phases in their proceedings and order. However, instances are not lacking in which the Executing Courts may have passed over--lapping or composite orders. In such cases, since the orders would also be under section 47, C. P. C., and appeal against the same would be maintainable. 11. Another thing to be noticed is that in the main ejectment suit, the parties were Syed Mehdi Hassan ; Syed Altaf Hussain v. M. A. Rashid. The same were the parties in the execution application No. 23/10 of 1965, which was filed under Order XXI, rule 11 read with rule 35, C. P. C. In the Executing Court on 22-2-1965 and was ultimately dismissed by the impugned order on 7-9-1967. The relevant contents of this application have already been reproduced above. In those execution proceedings, the plaintiff-decree-holders asserted that the obstruction had been caused to the process of execution by a representative of the judgment-- debtor or at his instance. According to section 146 of the Civil Procedure Code, "Save as otherwise provided by this Code or by any law for the time being in force, where any proceedings may be taken or application made by or against any persons, then the proceeding may be taken or the application may be made by or against any person claiming under him." In that view of the law on the subject, the plaintiffs-decree --holders were well-within their rights in praying that by removing the said obstruction, they may be put in possession of the property concerned. At this stage reference may be made to the pleadings of the parties in the main suit which have been reproduced in extenso earlier. If the main ejectment application and its written-statement as filed by the defendant --judgment-debtor are kept in view and are read in the light of the pleas taken up in execution proceedings then it is manifest
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that between the parties to the suit question had arisen as to whether Mian Fazal Ilahi (or Ahsan Industries) were sub-tenants, licensees, transferees from or representa--tives of the defendant principal tenant or not. The defendant-tenant in his written-statement has denied this assertion and was the point is direct controversy with him and the plaintiffs. That point of sub-tenancy etc. Could be decided either in the main suit or even in execution application, Between the parties to the main suit, therefore, a dispute arose as to whether the obstructer or objector was the representative of the judgment --debtor and a person who could be said to claim under him. The so-called obstructer also joined the controversy in execution proceedings and a stage was set up for deciding the question between the parties to the suit as to whether the obstructors/objectors were sub-tenants or representatives of the defendant-judgment-debtor. This was a question which under section 47, C. P. C., had to be decided by the Executing Court, decision wherein was to be a decree within the meaning of section 2(2) of the C. P. C. And could well be the subject-matter of appeal under section 96, C. P. C. The suggestion of…
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