The brief question involved in this revision is whether a person not being the judgment-debtor, who is yet to be dispossessed in an execution proceeding, can apply under Order XXI, rule 100, C. P. C.
The question arises in the following circumstances. In an ejectment proceeding instituted by Rehmat Ali against Nur Hussain, an order of ejectment was passed, against which the remedy by way of appeal and a second appeal failed and then execution application was filed on 20---1- 1976. Even before the filing of the execution application, Muhammad Anwar aforesaid son of Nur Hussain, and Munawar Hussain, a cousin of Muhammad Anwar, moved an application on 5-1-1976 purported to be under Order XXI, rule 58, The executing Court dismissed the application on 22-3- 1976 on the ground that since the property was not under attachment, an application under Order XXI, rule 58 did not lie. This view has been upheld by the lower appellate Court.
2. Learned counsel for the petitioners, however, submits that the application should be treated as one falling under rule 100 of Order XXI, and argues on the basis of Mst. Sahib-un-Nissa etc. v. Mst.
Mahmooda Begum (1) PLD 1959 Lah. 511) that such an application was maintainable and the Court had jurisdiction to determine the question of the executability of the decree qua the petitioners. He further argues that the Court of execution should not have dismissed the application summarily but should have treated the same as a suit and should have proceeded to frame issues and given the petitioners an opportunity to produce evidence in regard to the factum of their possession.
3. The question whether a person other than the judgment-debtor can apply under rule 100 of Order XXI, before he is actually dispossessed, has been examined in a subsequent authority reported as All Hussain v. Rafiquddln etc. (2) PLD 1977 Lab. 418 ) in which the view taken In re : Mst.
Sahib-un-Nissa etc. Was dissented from by my learned brother Aftab Hussain, J., and instead the earlier view of this Court in Sh. Muhammad Jahangir v. Muhammad Ibrahim etc. (3) PLD 1955 Lab.
525was followed. In this latter authority of 1955 it had been held "in this case there was no such complaint and in fact there could not have been any such complaint because the stage for actual delivery of possession on the spot had not been reached before the respondent made his application to the Court. The only other remedy which was open to the respondent was under rules 100 and 101, but this could become available to him only after he had been actually dispossessed.
In the present circumstances, therefore, the respondent had no right to ask the Court to adjudicate upon his claim ; nor did the Court possess the jurisdiction to adjudicate because the requisite conditions which could confer that jurisdiction upon it had not come into existence."
3. Rule 100 begins with the words: "Where any person other than the judgment-debtor is dispossessed of immovable property . . . . " The expression "is dispossessed" clearly indicates that the person has already been dispossessed and does not cover the case of a person who is yet to be dispossessed. The Code has provided in specific terms as contained in, section 47 and rules 95 to 103 of Order XXI, for situations that are likely to arise in the matter of delivery of possession in execution proceedings. According to the Scheme of the Code, unless the applicant is dispossessed, no cause of action arises for applying under rule 100. The Court is not' vested with an anticipatory jurisdiction to enquire into the title of a stranger being only a prospective obstructor before he is in fact dispossessed.
Mere delivery of symbolic possession will also not amount to dispossession within the meaning of this rule, and only the delivery of actual possession can constitute dispossession entitling the third party to maintain an application under rule 100. Nor does any question arise for invoking the inherent jurisdiction of the Court under section 151 to circumvent the express provision of this rule.
The case-law on the point consistently supports the same view. The contrary view taken in Mst.
Sahib-un-Nissa's case has been discussed at some length and reasons for departing from it have been given in All Hussain's case, and I see no good basis to differ from the same.
4. Learned counsel for the petitioners, submits that refusal to entertain the application of an objector on the ground that he has not yet been dispossessed, would give rise to a grave situation as ejectment order can be obtained collusively and the person in rightful possession ejected if he debarred from seeking relief until he has been so ejected. I am afraid, the contention is hypothetical. Even otherwise, it can hardly be said that Nur Hussain, who is father of one of the petitioners, had colluded in the passing of the ejectment order.
5. The petitioner's application was not maintainable either under rule 58, there being no attachment of the property, or under rule 100, the petitioners not having yet been dispossessed. The revision petition is, therefore, dismissed with costs