JUDGMENT MUHAMMAD KHALID MEHMOOD KHAN, J.---This Civil Revision has been preferred against order dated 26-11-2008 passed by the Senior Civil Judge Narowal and judgment dated 16-1-2009 passed by the Addl. District Judge Narowal.
2. Necessary facts for the disposal of present Civil Revision are that Muhammad Tariq Ayyub, respondent, entered into an agreement to sell on 30-1-1991 with regard to property detailed in the heading of the plaint with the petitioner/plaintiff against a consideration of Rs.3,75,000. He claimed that he paid Rs.3,25,000 and it was settled that on payment of remaining amount the respondent will execute the sale deed. The respondent left the country before theExecution of sale deed and returned after four years. On his arrival to Pakistan, the petitioner demanded the execution of sale deed of the land, subject-matter of the agreement to sell, but he continued to linger on the matter on one pretext or the other. He also tried to sell the property to any other else. In these circumstances the petitioner was forced to file a suit for specific performance. It was prayed in the suit that a decree for specific performance be passed in his favour against payment of Rs.50,000 the balance amount and possession of the suit property be ordered to be handed over to the petitioner.
3. The respondent/defendant filed written statement and denied the assertions of the plaint.
4. Out of divergent pleadings of the parties, the learned trial court framed the following issues:-- "ISSUES:
(1) Whether the plaintiff has not come to the court with clean hand? OPD
(2) Whether the plaintiff has no cause of action? OPD
(3) Whether the agreement of sale dated 30-6-1991 was got signed by the defendant fraudulently, if so its effect? OPD
(4) Whether the plaintiff is entitled to a decree for specific performance of agreement of sale dated 30-6-1991, if so on what terms and conditions? OPP
(5) Relief.
5. Both the parties adduced their evidence both oral and documentary. The learned Civil. Judge, vide judgment and decree dated 23-10-2007 decreed the suit of the petitioner subject to payment of Rs.50,000 and in case of failure of the respondent to execute the sale deed it was directed that he will be entitled to get the sale deed executed through the court.
6. The said judgment and decree was not assailed by the respondent and the petitioner on 13-9- 2008 obtained the possession of the property. When the petitioner obtained the possession of the property one Muhammad Daud Ayuob son of Muhammad Ayyub filed an application under Order XXI, Rules 100 and 101 read with section 151, C.P.C. Praying for restoration of the suit property claiming that on 13-9-2008 he was dispossessed from his house, the property, subject-matter of the decree, was in his possession and his brother Ahsan-ul-Haq and the petitioner colluded with each other and managed to obtain decree dated 23-10-2007. He further asserted that the decree passed in favour of the petitioner is only for specific' performance of the agreement and was not for possession of the suit property. The learned executing court vide order dated 26-11-2008 allowed the application and F ordered the restoration of possession of the suit land to the petitioner/objector.
7. The petitioner/decree holder assailed the said order through an appeal before the learned Addl.
District Judge Narowal who vide judgment dated 16-1-2009 dismissed the appeal.
8.Learned counsel for the petitioner submits that the learned executing court under Order XXI Rules 100 and 101, C.P.C. Was not justified to order the restoration of the suit property. He further submits that the learned trial court was bound to frame the issue while deciding the application under Order XXI Rule 100, C.P.C. He referred Order XXI Rule 100(2) which is read as under: "(2) The court shall fix a date for investigation the matter and shall summon the party against whom the application is made to appear and answer the same."
9.Learned counsel for the petitioner submits that word investigation has been used in the rule and as such it was obligatory on the learned executing court to frame issue and record the evidence but the learned trial court has failed to frame any issue and has not investigated the matter which is clear violation of the Rule 100(2), Order XXI, C.P.C. He further submits that the petitioner/objector/respondent No.2 was not the owner of property, subject-matter of the suit, and as such he was not competent to file the objection petition under the above said order and rule. He referred Rules 101 of Order XXI, C.P.C. Which is read as under:-- "(101) Bona fide claimant to be restored to possession. Where the court is satisfied that the applicant was in possession of the property on its on account or on account of some person other than the judgment-debtor it shall direct the applicant be put into possession of the property."
He submits that the petitioner was bound to establish on record that he was in possession of the property not under the judgment-debtor and was dispossessed.. He refers warrant of possession and submits that it find mention that judgment-debtor and objector was in possession of the property which shows that the objector was occupying the property under the judgment- debtor, he adds that the petitioner is a decree holder and he was rightly ordered to be put in possession by the learned executing court. The decree is intact and unless the same is set aside by the competent court of law he is within his rights, to retain the possession of the suit property.-
10. Learned counsel for the respondent No.2 supports the impugned judgment and submits that the petitioner has wrongly and fraudulently obtained the possession of the property belonging to him.
He further submits that there is no decree against him and such his dispossession from his on property was illegal and the learned executing court rightly restored the possession to him.
11. Heard record perused.
12. It is an admitted fact that there is no decree against respondent No.2. The decree in favour of the petitioner is against Muhammad Tariq Ayyub who happens to be the brother of respondent No.2. The plaint filed in court against Muhammad Tariq Ayyub shows that the petitioner is claiming the decree of specific performance as well as the possession of the suit property but the judgment passed in his favour shows that no decree for possession was passed. The relief granted in the decree is as under:-- "Relief In view of my findings on Issues Nos.3 and 4 suit of the plaintiff is decreed subject to payment of remaining sale consideration of Rs.50,000. The defendant is directed to execute the sale-deed thereafter failing which plaintiff would be entitled to sale deed' through court."
The decree sheet drawn on the basis of this judgment is:-- "The defendant is directed to execute the sale deed in favour of plaintiff otherwise the plaintiff will be within its right to get the sale-deed (Bainama Sultani) through court."
The construction of decree clearly shows that no decree of possession was passed of the suit property in favour of the petitioner. The petitioner has not assailed the decree or or applied for its correction. The warrant of possession could not be issued by the executing court in execution of the decree as the decree was not for possession. The judgment-debtor and the objector were in possession of the property when the possession was taken as per report of the bailiff. It was not established on record whether the objector's possession was under the judgment or he was occupying the same independently, hence without ascertaining the said fact no warrant of possession can be issued.
13. It is not understandable that how this warrant of possession was issued especially when there is no decree for possession. When the matter was brought into knowledge of executing court by the respondent No.2 under Order XXI, Rules 100 and 101, C.P.C. The learned trial court restore the possession summarily without recording the evidence.
14. The ' argument of learned counsel for the petitioner that before disposal of application the learned executing court was bound to frame the issue and to record the evidence is devoid of any merit. The executing court has to investigate the claim only if the sufficient material is not available on record. If the mutual is available on record the executing court is not bound to record the evidence. Rule 101 of Order XXI, C.P.C. Provides that possession of the bona fide occupants will be restored to them by the court, and it is not necessary that occupant should be the owner of property. Petitioner has obtained the decree with collusion of respondent No.1 and got issued the warrant of possession in a decree which was not for decree of possession. In my humble opinion, the warrant of possession was issued without any lawful authority and was in violation of the decree sought to be executed against respondent No.1, only. The learned trial court after perusing the record rightly came to the conclusion that process of law has been misused. Both the learned courts below have probed the matter thoroughly and their findings are unexceptional.
15. In view of the above, I find no illegality in the judgments of two courts below and as such the present revision petition fails and is dismissed with no orders as to costs..