1. This order will govern the disposal of Revision Applications Nos. 240, 241, 242 and 243 of 1980 in which common question of law arise for determination. The petitioners in all the above four revision applications were allotted different plots of land by Roshan Bagh Co-operative Housing Society Limited, Karachi in Federal "B" Area, Karachi after cancellation of the allotments of the original allottees of the plots. The original allottees took the matter to arbitration under section 54 of the Cooperative Societies Act and awards were given in their favour. However, when execution applications were filed by the original allottees in pursuance of the awards in their favour, the petitioners above-named resisted the same on the ground that they were not made parties to the arbitration proceedings and as such were not bound by the awards. The executing Court upheld the objection of the petitioners and dismissed the execution applications but on appeal the 1st Appellate Court took the view that the petitioners being persons claiming through the Society were bound by the award and reversed the order of executing Court. The petitioners have challenged the order of 1st Appellate Court in these revision applications on common grounds. Before considering the contentions raised in these petitions I will state separately for the sake of convenience the relevant facts of each revision application which are necessary for determination of the points urged before me.
2. In Revision No. 240/80 respondent 1 was the original allottee of plot of land bearing No. 8-A, Block 19, K. D. A. Scheme No. 16, Federal "B" Area, Karachi which was allotted to him by respondent 2. However, respon--dent 2 on 23-11-1967 cancelled the allotment of respondent 1 and on 24-11-1967 allotted the same to the petitioner. It is alleged that on the same day the possession of the plot was also delivered to the petitioner. Respon--dent 1 on 15-12-1967 applied for arbitration under section 54 of Co-operative Societies Act against the cancellation of his allotment impleading only respondent 2 as the party in the arbitration case. The award was given on 16-2-1968 by the arbitrator and on an appeal filed by respondent 2 against the award it was confirmed on 24-8-1968. The certificate of non---satisfaction of the award was issued on 16-10-19t8 and thereafter Execution Application No. 29 of 1970 was filed before the IV Civil Judge, 1st Class, Karachi for execution of the decree based on the award. On 5-3-1971 the Court ordered issuance of writ of possession and in response thereto the petitioner filed the application under Order XXI, rule 99 read with sections 47 and 151, C. P. C. On 6-3-1971.
3. In Revision No. 241/80 the allotment of Plot No. 5-A Block 19, Federal "B" Area, Karachi, in the name of respondent 1 was cancelled by respondent No. 2 on 12-12-1967 and on the same day it was allotted to one Abdul Ghaffar. Abdul Ghaffar transferred his rights in the plot to one Kazim Raza and the transfer was approved by the Society on the 30th of September, 1968. The said Kazim Raza in turn transferred his right in the above plot to the petitioner and the transfer was approved by the Society on 25-12-1968. The arbitration proceeding against respondent 2 at the instance of respondent 1 in this case started on 21-12-1967 and 6-12-1968 award was given in favour of respondent 1 which was set aside on appeal filed by respondent 2. A second award was given by the arbitrator in favour of respondent 1 again on 13-4-1969 which was not challenged. Execution Application No. 31/70 was thereafter filed by respondent 1 and on having come to know of the execution proceedings the petitioner filed application under O. XXI, rule 99 read with sections 47 and 151, C. P. C. On 23-2-1971.
4. In Revision No. 242 of 1980 the allotment of Plot No. 6-A, Block No. 19, Scheme No. 16, Karachi, from the name of respondent 1 ryas cancelled on 23-I1-1967 and the same was allotted by respondent 2 to one Tasleem Ahmad on 24-11-1967. The said Tasleem Ahmed transferred his rights in the plot to the petitioner and the transfer was approved by the Society on 30th September, 1968. The arbitration proceeding in this case started against respondent 2 on 16-12-1967 and the -award was given on 15-2-1968. The appeal against the award by respondent 2 was dismissed on 24-8-1968, and after obtaining the non-satisfaction certificate on 16-10-1968 Execution No. 38/70 was filed by respondent No. 1. The petitioner filed application under O. XXI, rule 99 read with sections 47 and 151, C. P. C. In the execution proceedings on 5-3-1971.
5. In Revision No. 243 of 1980 the allotment of respondent I in respect of .Plot No. 4-A, Block 19. Federal "B" Area, Karachi was cancelled on 23-11-1967. The plot was allotted thereafter to one Mst. Qamar Jehan on 24-11-1967 by respondent 2. The said Qamar Jehan transferred her rights to the petitioner and the transfer in favour of petitioner was approved by the Society on 5-12-1968. The arbitration proceedings against respondent 2 in this case also started on 21-12-1967 and the award was given on 28-4-1:968. After obtaining the certificate of non-satisfaction Execution Application No. 32 of 1970 was filed in which writ of ejectment was ordered to be issued on 5-3-1971. The petitioner filed application under O. XXI, rule 99 read with sections 47 and 151, C. P. C. On 6-3-1971.
6. The executing Court after recording evidence in all the above cases and after hearing the parties held that the resistance caused by the petitioners to the above Execution Application was justified and bona fide as the petitioners were not bound by the award which were made without making them parties to the arbitration proceedings and accordingly dismissed all the four execution applications. The respondent No. 1 in the above petitions preferred appeal against the order of executing Court and in appeal the first appellate Court reversed the order of the trial Court on the ground that the executing Court was not the proper forum for determination of the authority or other--wise of the arbitrators to make the award under section 54 of the Cooperative Societies Act as it amounted to going behind the decree. The first Appellate Court also found the petitioners as persons driving title from respondent 2 and therefore he held the resistance by petitioners to the execution of the decrees as unjustified, and not a bona fide one. The Execution applications were accordingly allowed against the petitioners. The learned counsel for the petitioners in the above revision petitions jointly urged that the reversal of the findings of trial Court by the first appellate court is based on a wholly misconceived view of law. It is urged that the petitioners were holding the -property in their own right and therefore their non joinder in arbitration proceedings rendered the award inoperative and unenforceable against them. The learned counsel drew my attention to the unreported case of Mst. Khalida Zaman and another v. Jamaluddin and others (Second Appeal No. ' 172/74) decided by a learned Single Judge of this Court (as he the was) which has since been. Upheld by the Supreme Court in C. P. No. 180-WA of 1979. The above-cited case applies with full force to the facts and circumstances of the present cases. In that case also the Housing Society after cancellation of allotment of flat of the original allottee, reallotted they flat to some other person. The original allottee without impleading the subsequent allottee took the matter to arbitration under section 54 of the Co-operative Societies Act in which award was given in his favour. However, when the execution application was filed, it was resisted by the subsequent allottee on the ground that he was not bound by the decree as he was not made party to the arbitration proceedings which resulted in the award and that he was holding the property in his own right and not as a person claiming through the Society which was a judgment-debtor in the execution. The executing Court upheld the objection of the subsequent allottee and dismissed the execution application but on appeal the first appellate Court reversed the order of the executing Court but a learned Single Judge of this Court in 2nd appeal restored the order of the executing Court. The learned counsel for respondent 1 in the revision applications attempted to distinguish the decision in the case of Khalida Zaman by urging that in that case the question of transfer of property during the pendency of proceeding was not considered. It is contended by the learned counsel that in all the above cases before me the transfer of the plots in the record of Society had taken place during the pendency of the arbitration proceeding therefore the petitioners cases will be governed under the provisions of O. XXI, rule 102, C. P. C. The additional contentions raised in R. A.
7. No. 240/80 is that in that case the petitioner before filing the application under O. XXI, rule 99 had earlier instituted a Civil Suit on similar .Allegations which was dismissed and therefore the application under Order XXI, rule 99, C. P. C. Was barred under the principle of res judlcata. I will deal first with the additional contention raised in R. A. No. 240/80 as the other contention is common to all the revision applications. It is true that the petitioner in R. A. No. 240/80 before filing the application under O. XXI, rule 99, C. P. C. Had instituted a civil suit on similar ground as are urged in the application under O. XXI, rule 99 but the suit was rejected under O. VII, rule 11, C. P. C. On the ground that the institution of such a suit is barred under O. XXI, rule 103, C. P. C. And all the contentions raised in the suit could be raised in execution proceedings a and when instituted against the petitioner. I fail to see, in these circumstances, e how the rejection of plaint could constitute res judicata. On the contrary the rejection of the plaint was solely on the ground that all the contentions and pleas raised in the suit were available to be raised by the petitioner in the execution proceedings. I therefore find no substance in the contention of the learned counsel that the institution of the suit and its rejection under O. VII, rule 11, was a bar to the entertainment and decision of application under O. XXI, rule 99, C. P. C. The only other contention which now remains .To be disposed of is that the transfer in favour of the petitioners in each case had taken place during the pendency of the arbitration proceedings and therefore their cases are covered under Order XXI. Rule 102, C. P. C. It is accordingly contended that the rule laid down in Khalida Zaman's case will not apply to the present cases. It has come on record while stating the facts of each of the above revision applications that the reallotment of plots after cancellations of original allotments in the 3 cases had taken place on the next day of cancellation while in one case it was done on the same day. The arbitration proceedings in all cases were initiated at the instance of original allottees much after the date of reallotment. The fact that in some of the above cases the subsequent allottees had further transferred their rights in the plots in favour of the present petitioners while arbitration proceedings were pending, is of no avail to the respondent as this subsequent transfer was not made by the judgment-debtor in the case but were made by the subsequent transferees who were not parties to arbitration proceedings. The admitted position in the Revision Applications Nos. 241/80 to 243 )80 is that on reallotment of plots the subsequent allottees transferred their rights in the plot in favour of others who in turn transferred it to the present petitioners and these transfers were only approved by the Society. The C Society having once allotted the plot was left with no control over these plots and it was the act of each individual allottee by which further transfer took place. It is conceded by the learned counsel for respondent 1 that the persons who were allotted plot on cancellation of the original allotment by the Society could successfully resist the execution in view of the rule laid down in Khalfda Zaman's case but the transfer from such allottees could not avail of the same. I am unable to find any such distinction between the two cases. If the person in whose favour the reallotment had taken place after cancellation of original allotment could successfully resist the execution under O. XXI, rule 99, I see no reason why a person who has been transferred the plot by such allottee could not do so. The transfer in favour of petitioners in the Revision No. 141 to 243/80 having not been made by the judgment-debtor will not be hit by rule 102 of O. XXI, C. P. C. I accordingly hold that the petitioners in all the above execution applications were entitled to resist the execution of the decree and the Court of first instance was right in dismissing the execution application. In the result I accept the above revision application and set aside the order of 1st Appellate Court and restore the order of trial Court. However, in the circumstances of the case there will be so order as to costs.