' This judgment will dispose of the present appeal (R. S. A. No, 772 of 1977) as well as R. S. A. No, 711 of 1977.
2. The facts giving rise to these two appeals are that the respondent, Abdul Majid moved two separate applications for ejectment of Muhammad Sharif and Muhammad Nazir from two separate portions of certain premises alleged to be in their respective occupation as tenants. The respondents in the said ejectment applications resisted the applications denying that they were tenants under the respondent. The contentions raised by them, however, did not find favour with the Rent Controller, who heard the applications, and, therefore, he passed orders of eviction in both the applications. It was thereafter that the appellant, Mehr Jalal Din filed two separate suits seeking declaration to the effect that the orders of ejectment made against Muhammad Sharif and Muhammad Nazir were without jurisdiction. It was asserted by him that he was the owner in possession of the premises occupied by Muhammad Sharif and Muhammad Nazir and since he was their landlord the orders made by the Rent Controller on the applications of the respondent were without jurisdiction. He also prayed for a permanent injunction, by way of consequential relief, restraining the respondent from dispossessing him and his tenants, that is, Muhammad Sharif and Muhammad Nazir from the disputed premises on the basis of ejectment orders passed by the learned Rent Controller against Muhammad Sharif and Muhammad Nazir.
3. The two suits were resisted by the respondent, who was the only defendant therein, inter alia on the ground that they were barred by Order XXI, rule 103 of the Code of Civil Procedure, hereinafter referred to as the Code. This plea was upheld by the Civil Judge before whom the suits were pending and, therefore, the suits were dismissed by him under Order VII, rule 11 of the Code. On this, the appellants filed separate appeals against the orders of the learned trial Court, but the same was dismissed by an Additional District Judge. The learned Additional District Judge, however, converted the orders of the dismissal of the suits to orders of rejection of plaints under the said provision of the Code. Feeling aggrieved by the orders of the learned appellate Court, the appellant has preferred the second appeals in hand to this Court.
4. Learned counsel for the appellant contended that the provisions of Order XXI, rule 103, of the Code would come into play after an application is made under rule 97 or rule 100 of the said Order but such an application can be made by him only after his dispossession from the premises in dispute. The argument proceeds that since he had not been dispossessed from the disputed premises till the filing of the suits, could not be thrown away on the basis of the provisions of rule
103. He relied on All Hussain v. Rafiquddin and 9 others (1) to support his contention.
5. As against this, learned counsel for the respondent submitted that rule 103 was enacted with a view to securing expeditious decision of disputes connected with the execution of decrees b authorising the executing Courts to resolve such disputes without allowing the parties thereto to have recourse to separate suits, and if the interpretation placed by the learned counsel for the appellant on the said rule was adopted, it would defeat the very purpose of substituting the old rule by the new one. He also maintained that if the appellant is ejected in execution of the orders passed against Muhammad Sharif and Muhammad Nazir he will have a right to make an application under rule 100 of Order XXI to get back the possession thereof by establishing his title thereto and, therefore, separate suits filed by him to establish title to the disputed property were not competent neither before his actual dispossession therefrom nor after he has been thrown out of the premises in question. It was further submitted by the learned counsel for the respondent that if a contrary view was taken it would also offend against the rule laid down in the case of All Hussain relied upon by the learned counsel for the appellant.
6. As indicated above, the appellant claims to be the owner of the disputed premises. According to him, he alongwith Muhammad Sharif and Muhammad Nazir, against whom ejectment orders have been passed by the Rent Controller under the West Pakistan Urban Rent Restriction Ordinance 1959, is in possession of the said premises. It has been laid down in section 17 of the said Ordinance that on order of ejectment shall be executed by a civil Court having jurisdiction in the area as if it were a decree of that Court. Thus, Muhammad Sharif and Muhammad Nazir are judgment-debtors while the respondent is decree-holder qua the said orders.
7. Rule 97 of Order XXI of the Code provides that where the holder of a decree for possession of immovable property is resisted or obstructed by any person in obtaining possession of the property he may make an application to the executing Court complaining of such resistance or obstruction. On the making of such an application, the Court shall investigate the matter, by hearing the party against whom the application is made. Rule 98 lays down that where a Court finds that the resistance or obstruction was occasioned without any just cause by the judgment- debtor it shall direct that the applicant be put into possession of the property. According to rule 99 where the resistance or obstruction is caused by any person other {{FOOT NOTE}}
(1) PLD 1977 Lab. 418 {{FOOT NOTE}} ' than the judgment-debtor claiming in good faith to be in possession of the property on his own account, the Court shall make an order dismissing the application of the decree-holder. These provisions of law are to be observed when the decree-holder complains of resistance or obstruction in the execution of the decree. Rule 100 permits any person other than the judgment- debtor, who is dispossessed of immovable property in execution of a decree, to make an application complaining of such dispossession. On the making of such an application necessary investigation shall be held by the Court by hearing the party against whom the application is made. Rule 101 says that where the Court is satisfied that the applicant (person other than the judgment-debtor) was in possession of the property in his own right it shall direct that he be put into possession of the property. It has been laid down in rule, 103 that all questions arising as to title, right or interest in, or possession of, immovable property between an applicant under rule 97 and the opposite-party, or between an applicant under rule 100 and the opposite-party, shall be adjudicated upon and determined by the executing Court, and no separate suit shall lie for the determination of any such questions.
8. Rule 103, in its present shape, was substituted in place of an old rule, bearing the same number, by means of the Law Reforms Ordinance, 1972. The old rule was to the following effect :- "103. 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."
9. The other provisions of the Code which deserve to be noted for the purpose of deciding the point in issue are section 47, and rules 58 and 62 of Order XXI.
10. Section 47 reads as follows :- "47.-(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 a 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 determine by the Court."
' As is evident from its phraseology, section 47 deals with all questions relating to the execution of a decree including those in respect of the attachment of property in execution of the decrees.
10. Rules 58 to 62 deal with matters relating to attachment of property. Rule 58 provides that where any property is attached in execution of a decree and it is claimed that it is not liable to attachment, the Court shall hold investigation in the matter. According to rules 60 and 61, if the claim is established, the Court shall make an order releasing the property but if the claim is not established, the Court shall disallow the claim. Before the promulgation of the Law Reforms Ordinance, rule 61 was followed by rules 62 and 63 which were to the following effect :- "62. Where the Court is satisfied that the property is subject to a mortgage or charge in favour of some person not in possession, and thinks fit to continue the attachment, it may do so, subject to such mortgage or charge.
63. Where a claim or an objection is preferred, the party against whom an order is made may institute a suit to establish the right which he claims to the property in dispute, but, subject to the result of such suit, if any, the order shall be conclusive."
' Now, by the Law Reforms Ordinance, rule 63 has been omitted and rule 62 has been substituted by the following "62. Questions relating to rights. Etc. Of claimant in attached property to be decided by Court.-All questions relating to the right, title or interest of claimant or objector in the attached property shall be adjudicated upon and determined by the Court and no separate suit shall lie to establish such title, right or interest."
11. It would, therefore, appear that before the Law Reforms Ordinance came into effect, a suit could be filed under rule 63 by a party if he was not satisfied with the order of the executing Court in regard to his claim to any property attached in execution of a decree. Similarly, a party not satisfied with an order of the executing Court under rule 98, rule 99 or rule 101 could file a separate suit under rule 103. In view of the amended law, however, such suits are not competent because the cumulative effect of section 47 and the aforementioned changes brought about by the said Ordinance is that all matters referred to in section 47 and rules 62 and 103 of Order XXI shall be adjudicated upon and determined by the executing Court. To put it differently, the said provisions of law bar separate suits seeking adjudication of the matters to which they apply. This view derives support from the following observations made in the case of All Hussain, cited by the learned counsel for the appellant himself :- "Before its amendment by the Law. Reforms Ordinance, 1972 it provided that in case of decision of applications of the decree-holder under rule 97 or of the person claiming to have been illegally dispossessed under rule 101, C. P. C. The aggrieved party shall have a right to file a separate suit for determination of the question involved therein in non-summary regular proceedings. The rule as it stands now bars a separate suit. This provision follows the principle on which section 47, C. P. C. Is based. The common principle enunciated is that certain matters relating to execution of decree should be within the jurisdiction of the Executing Court, which cannot otherwise go behind the decree."
' Similar view has been expressed by (now Mr. Justice) Aamer Raza A. Khan while dealing with rule 103 in his commentary on the Code (Third Edition, 1976). It reads thus "This rule has been substituted for the previous rule by Ordinance XII of 1972. Now all questions arising as to title, right or interest in, or possession of immovable property under rule 97 or rule 100 are to be adjudicated upon by the executing Court and not by a separate suit. The order under this rule is now an appealable as a decree (section 2(2)) and Order XLIII, rule 1 (ii). Previously a suit lay against such determination. This rule in its terms is analogous to section 47 and rule 62 ante. The combined effect of section 47 and rules 62 and 103 of Order XXI is that all questions as to title, right or interest in or possession of attached property shall be determined by the executing Court and a separate suit is barred."
12. The appellant had also claimed title to the premises in dispute which are required to be vacated by Muhammad Sharif and Muhammad Nazir in execution of the ejectment orders passed against them by the Rent Controller. As explained above, these orders are to be executed as decrees of a civil Court. Therefore, the provisions of rules 97 to 103 of Order XXI of the Code can be made use of in connection with the said ejectment orders.
13. There is nothing on the record to show that applications for executions of the orders in question were actually made by the respondent ; and if so, with what result? Even if those applications have not been made as yet, it would not warrant the filing of the suits giving rise to the present appeals.
If a contrary view is taken, it would tantamount to allowing a person other than the judgment- debtor to file a separate civil suit with a view to establishing his title to immovable property involved in a decree as soon as the decree is passed and thus create difficulties for a decree- holder which were intended to be eliminated by means of the aforementioned amendments. I am, therefore, of the view that all matters to which rule 103 relates are to be adjudicated upon by the executing Court only and that if 8 a suit in respect of any of those matters is filed, it would be hit by rule 103 regardless of the fact that an application for execution of decree has or has not been filed by the time of the institution of the suit.
14. Similarly, the fact that a person other than the judgment-debtor has not been actually dispossessed from the property claimed by him would be immaterial. The law has been well settled by the case of All Hussain that a person other than the judgment-debtor cannot stop execution of a decree for possession of an immovable property by making an application under rule 100 and that he can make such an application only if he has been actually dispossessed of the property. In other words, if he wants to have his claim determined after the passing of the decree in favour of any other person he will have to wait till the decree is executed. If he does not like to wait and suffer dispossession he should join the proceedings in which the decree is prayed for by making an application for being impleaded as a party thereto and, by establishing his title to the disputed property, secure a verdict in his own favour. It is, therefore, for the person claiming title to any property to adopt any of the said two courses. In case he goes in for the first one he cannot then be heard to say that since he cannot wait for the vindication of his rights till he is dispossessed of the property in dispute, he would bring a suit which is barred by rule 103.
15. What follows from the above discussion is that the suits filed by the appellant were barred by the provisions of rule 103. The plaints filed in those suits were, therefore, rightly rejected under clause (d) of rule 11 of Order VII of the Code.
16. In result, I hold that the orders passed by the learned Additional District Judge, which have been challenged in two appeals before me, are not open to any valid exception. These appeals, therefore, fail and are dismissed with costs.