' ATIR MAHMOOD, J.---Through this writ petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, the petitioners have impugned order dated 30-1-2014 whereby their application under Order, XXI Rule 97, C.P.C. Against issuance of warrants of possession in favour of the respondents-decree holder and for restoration of possession of the rented property to the petitioners was dismissed by learned Special Judge (gent), Lahore.
2. Brief facts of the case are that on 11-6-1998, respondent No,2 Sh. Aftab Ahmed filed an ejectment petition against legal heirs of Meraj Din and Mian Muhammad Shafi who were original lessee in the rented property but not against the present petitioners. On 17-9-2001, the learned Rent Controller under section 13(6) of the Punjab Urban Rent Restriction Ordinance, 1959 directed the respondents in the ejectment petition to deposit arrears of rent which was not complied with. Accordingly, right of defence of the said respondents was closed by learned Rent Tribunal vide order dated 10-4- 2002. Legal heirs of Miraj Din and Mian Muhammad Shafi preferred an appeal which was dismissed vide order dated 18-12-2003 passed by learned Additional District Judge, Lahore. The original lessees filed a second appeal i,e, SAO No,3/2004. On 22-12-2006, the present petitioners claiming themselves to be the sub-tenant in the rented premises filed an application under Order I Rule 10, C.P.C. In the said SAO. The said application was disposed of by this Court with the observation that the applicants had already filed an application under section 12(2), C.P.C. On 22-12-2006 which will be decided by the learned District Judge, Lahore whereas the main ,SAO was dismissed vide order dated 5-9-2007.
' The application under section 12(2), C.P.C. Filed by the present petitioners was dismissed vide order dated 20-4-2009 passed by learned Additional District Judge, Lahore. Feeling aggrieved, the petitioners filed a Writ Petition No,12605/2009 on 20-6-2009. The said writ petition was dismissed by this Court in limine vide order dated 23-6-2009. Thereafter, the petitioners filed a C.P.L.A. No,1810- L/2009 along with an application for interim relief. The Hon'ble Supreme Court vide order dated 1-7- 2010 directed the parties to maintain status quo. On 30-5-2013, the C.P.L.A. Was dismissed for want of prosecution by the august Supreme Court. Thereafter, the petitioners filed C.M.A. No,122/2013 in C.P.L.A. No,1810-L/2009 which was allowed and the CPLA was restored vide order dated 16-1-2014.
3. In the meanwhile, the ejectment petitioner filed an execution petition on 10-1-2007. On 13-4-2013, learned Special Judge (Rent) keeping in view the status quo order passed by the august Supreme Court adjourned the execution petition sine die. On 28-9-2013, the execution petition was got restored by the decree holder by way of filing an application where after warrants of possession were issued by the learned Special Judge (Rent), Lahore. On 27-11-2013 and 6-12-2013, directions were passed by the learned Special Judge (Rent), Lahore for lock breaking and door breaking of the rented premises with the assistance of local police. As such, possession of a number of shops was taken over by the decree holder and the same were rented out to some other persons. On 14- 12-2013, the petitioners filed application under Order XXI, Rule 97, C.P.C. Against issuance of warrants of possession and restoration of possession. The ejectment petitioner-decree holder also filed application under Order XXI Rule 97, C.P.C. For rejection of the application of the petitioners.
Vide order dated 30-1-2014, the application of the petitioners under Order XXI Rule 97, C.P.C. Was dismissed by learned Special Judge (Rent), Lahore which has been assailed in this writ petition.
4. Learned counsel for the petitioners inter alia contends that since status quo order was passed by the Hon'ble Supreme Court of Pakistan, therefore, learned Special Judge (Rent) was under legal obligation to issue notice to the petitioners before passing orders of door-breaking and lock- breaking dated 27-11-2013 and 6-12-2013 but no such notice was issued to them; that the possession was taken over by the decree holder in the interregnum from dismissal on 30-5-2013 and restoration on 16-1-2014 of the C.P.L.A.; that the learned executing court has failed to apply its judicious mind while passing the said orders that the parties will have to be sent on the same position if the CPLA is restored; that the legal possession of the petitioners has been snatched by illegal process of the court which is continuing after passing impugned order dated 30-1-2014; that there was no occasion for the executing court to dispossess the petitioners from their lawful possession; that the petitioners' application under section 12(2), C.P.C. Was dismissed by learned Additional District Judge, Lahore on the wrong presumption that ejection petition was not filed against the petitioners-sub tenants; that the ejectment petition was filed collusively by the ejectment petitioner and the respondents in ejectment petition who deliberately did not contest it properly; that though the petitioners were in possession of the rented premises but no notice as required under section 13(a) of the West Pakistan Rent Restriction Ordinance, 1959 was ever served upon them; that the petitioners did not commit any default in payment of the rent; that the order impugned is against law which if not set aside will cause irreparable loss to the petitioners, therefore, the same as well as eviction orders of the petitioners be set aside by way of allowing the instant writ petition. In support of his assertions, learned counsel has relied upon the dictums laid down in cases cited as Mst. Khurshid Begum and others v. Mr. Ghulam Kubra and others (1982 SCMR 90), Muhammad Saeed alias Pulla v. The State (PLD 1987 Peshawar 31), S.M. Mohsan Zaidi v.
Syed Gauhar Ali (1985 SCMR 344), Province of Punjab and others v. Abdul Ghafoor and others (2001 MLD 1621), Haji Abdul Wali Khan and another v. Muhammad Hanif and another (1991 SCMR 2357), Mst. Sahib un Nissa and others v. Mst. Mahmooda Begum (PLD 1959 Writ Petition) Lahore 511) and Mst. Ghulam Fatima v. Muhammad Shafi and another (2006 YLR 1280).
5. Conversely, learned counsel for the respondents-decree holders has vehemently opposed this writ petition as well as the averments made by learned counsel for the petitioners. He points out that the petitioners are closely related to the original judgment debtor, particularly petitioner No,7 is son of Mian Muhammad Shafi, the original tenant, as such, they were in knowledge of filing of the ejectment petition since its inception. He submits that the respondents-decree holders are lawful owners of the property in question. He maintains that the respondents did not violate the status quo order in any manner and the possession of the property was taken over when the CPLA had been dismissed and there was no status quo order in the field and this too was done through indulgence of the court. He undertakes that the respondents are law-abiding citizens of the country and neither they have earlier violated the order of the court nor they will do so -in future.
He avers that this writ petition has no merit and the same is liable to be dismissed. He has relied upon the law laid down in cases cited as Mst. Khurshid Begum and others v. Mr. Ghulam Kubra and others (1982 SCMR 90), Ghulam Mujtaba v. Mst. Naeema Khanum (1984 CLC 1458 Lahore), Muhammad lqbal and others v. Khurshid Ahmad (1984 SCMR 1324), Muhammad Sarwar v.
Muhammad Shafi (1986 SCMR 1638), Shafqatullah and others v. Distrcit and Sessions Judge, Nowshera (2001 SCMR 274), Sri Lakshmi Narayan and others v. Sri Surath Lal Chakraborti and others (PLD 1964 Dacca 177) and Nirmal Chandra Choudhry v. Nikunja Behari Biswas and others (PLD 1956 Dacca 148).
6. I have heard the arguments put forth by learned counsel for the parties and also perused the record with their able assistance.
7. Learned counsel for the petitioners has extended his lengthy arguments but according to my mind, the said arguments cannot be agitated before this Court in writ jurisdiction as the matter is already sub judice before the august Supreme Court in CPLA No,1810-L/2009. The only question which is to be answered by this Court is as to whether the petitioners were entitled to ask for restitution of possession by filing application before the executing court after the order passed by the august Supreme Court on 16-1-2014 by which the CPLA was restored after its dismissal in default on 30-5-2013.
8. Undeniably, status quo order was passed on 1-7-2010 by the Hon'ble Supreme Court of Pakistan in the CPLA but thereafter the said CPLA was dismissed in default on 30-5-2013. Order dated 30-5- 2013 was set aside by the august Supreme Court vide order dated 16-1-2014 and the Civil Petition No,1810-L/2009 was restored to its original number. During the interregnum from dismissal in default on 30-5-2013 to its restoration on 16-1-2014, the learned Rent Controller issued warrants of possession and the possession of the disputed property was handed over to the respondents- landlords. According to the report of the bailiff, the possession of the property was handed over to the decree holders on 12-12-2003.
9. Subsequent to delivery of possession to the decree holder on 12-12-2013, an application for restoration of possession under Order XXI, Rule 97, C.P.C. Was filed by the present petitioners before the executing court on 14-12-2013 by submitting that their appeal was pending before the august Supreme Court, as such, they were illegally dispossessed and entitled to be put in possession again. The application was resisted by the respondent-decree holder by stating that the appeal of the petitioners had already been dismissed by the august Supreme Court on 30-5-2013. The executing court after perusal of the record refused to restore the possession of the property to the petitioners by holding that since there was no order passed by the august Supreme Court for restitution of possession to the present petitioners, the possession could not be restored. However, the execution petition was adjourned awaiting orders of the apex court.
10. In .The present case, the petitioners filed an application under Order XXI Rule 97, C.P.C. Which reads as under:- "97. Resistance or obstruction to possession to decree-holder or purchaser.---(1) Where the holder of a decree for the possession of immovable property or the purchaser of any such property sold in execution of a decree is resisted or obstructed by any person in obtaining possession of the property, he may make an application to the Court complaining of such resistance or obstruction.
(2) The Court shall fix a day for investigating the matter and shall summon the party against whom the application is made to appear and answer the same."
(Emphasis provided)
' Bare perusal of above provision of law reflects that if the decree holder is obstructed from taking' over possession of the property, he may make an application to the court by complaining of such resistance or obstruction. Rules 98 and 99 of Order XXI of C.P.C. Are also of the same effect.
However, Rule 100 of Order XXI of C.P.C. Provides that if any person other than the judgment debtor is dispossessed from the immovable property by a holder of a decree for possession of such property, then an application can be made on his behalf complaining of such dispossession whereas under Rule 101 of Order XXI, C.P.C., if the court is satisfied that the applicant was in possession of the property on his own account or on account of some person other than the judgment debtor, then an order can be passed for restoration of the possession. In the present case, the petitioners have not asserted their own independent right rather they are claiming right on the basis of sub-tenancy from the original judgment debtors Meraj Din and Mian Muhammad Shafi who were inducted as lessee by Sheikh Muhammad Zaki, therefore, provisions of Rules 97 to 101 of Order XXI of C.P.C. Are not attracted in this case.
11. The contention of learned counsel for the petitioners is that since the CPLA was restored and the status quo order was also restored has some force but at the same time, by restoration of the status quo order analogy cannot be drawn that the petitioners were entitled for restoration of the possession as they were enjoying prior to restoration of status quo order. By reading of the order of the Hon'ble Supreme Court, it is reflected that the status quo order was passed but it was nowhere ordered that the position of status quo would be as it was on 30-5-2013 when the CPLA was dismissed in default.
12. According to section 144 of the C.P.C., there can be restoration of the possession if the decree is varied, or reversed on the application of any of the parties. Section 144 of the C.P.C. Provides that: "Sec. 144---Application for restitution.---(1) Where and in so far as a decree is varied or reversed the Court of first instance shall, on the application of any party entitled to any benefit by way of restitution, or otherwise, cause such restitution to be made as will, so far as may be, place the parties in the position which they would have occupied but for such decree or such part thereof as has been varied or reversed; and, for this purpose, the Court may make any orders, including orders for the refund of costs and for the payment of interest, damages, compensation and mesne profits, which are properly consequential on such variation or reversal.
(2) No suit shall be instituted for the purpose of obtaining any restitution or other relief which could be obtained by application under subsection (1)."
' Plain reading of the above provision makes it clear that the possession of a property can be restored if the decree is varied, reversed or set aside. In this case, the ejectment decree was passed by the Rent Controller against the original lessee which stands upheld uptil this Court.
According to my mind, the possession of the rented premises was handed over to the decree holder-landlord through process of law, the petitioners were never dispossessed from the property in an illegal manner. Even otherwise, the CPLA No,1810-L/2009 arising out of the application under section 12(2), C.P.C. Filed by the petitioners is pending adjudication before the august Supreme Court. The petitioners if aggrieved of the impugned order may approach the apex court for redressal of their grievance.
13. The case law relied upon by learned counsel for the petitioners is also of no help to the petitioners. Even the case law relied upon by learned counsel for the petitioners cited as Mst.
Khurshid Begum and others v. Mr. Ghulam Kubra and others (1982 SCMR 90) goes against the petitioners as it has been held in para 12 of the said judgment that:-- "12. It follows consistently from these decisions of this Court that an executing Court has the power to entertain and adjudicate an objection petition filed by persons not claiming through the judgment-debtor, even before their physical dispossession from the property. This has to be distinguished from the right conferred by law on such a party to prefer an objection without resisting the execution or without being dispossessed from the property. What remains to be seen is whether this principle is applicable to the facts of this case."
(Emphasis provided)
14. In the above mentioned circumstances, the application filed by the present petitioners was not maintainable before the executing court and was rightly dismissed. Learned counsel for the petitioners has not been able to point out any illegality in the impugned order.
15. Resultantly, this writ petition is devoid of any merit. The same is dismissed.