SHAFI-UR-REMAN, J.-The petitioners who are the landlords, having already-obtained an order of ejectment against Syed Saqlain Abid respondent No. 3 seek leave to appeal against the judgment of the Lahore High Court dated 5-11-1980 whereby on an objection petition filed by all the respondents to the execution of the eviction order against Syed Saqlain Abid the execution proceedings were stayed till the determination of their objection.
2. The petitioners sued Syed Saqlain Abid, respondent No: 3 as their tenant and obtained an order of ejectment against him on the ground of their bona fide personal need. The order was maintained up to this Court. During the execution of that order all the respondents including respondent No. 3 who had unsuccessfully litigated earlier, filed a joint objection petition which is expressed to be under Order XXI, rule 97/99, C. P. C. And prayed that their claim be adjudicated and till its adjudica--tion they be not ejected in execution of the order of eviction passed against Syed Saqlain Abid respondent No. 3. Their case in the objection petition was that Ashraf Ali Shah, their predecessor-in-interest was the original tenant of the property and on his death all the respondents had jointly inherited the tenancy and the ejectment order against Sayed Saqlain Abid respondent No. 3 could not lead to their eviction from the premises. The executing Court held that Civil Procedure Code was applicable to the execution proceeding of an eviction order passed by the Rent Controller and such a petition could be filed. Finding also that there was a prima facie case the ejectment order was directed to remain suspended till the disposal of the objection petition and the following issues were framed for determining the objection
(1) Whether objectors have become tenants after the death of Syed Ashraf Hussain deceased?
(2) Whether Syed Ashraf Hussain was tenant at the time of his death?
(3) If issue No. 2 is not proved, whether Syed Saqlain Abid was the only tenant under the decree- holder?
3. An appeal was preferred by the petitioners which was allowed by the Additional District Judge, Multan, who held following the decision in Munawar Hussain and another v. Rehmat Ali (PLD 1979 Lah. 215), that unless the objectors were dispossessed they could not claim adjudication of their objection petition as it was competent under Order XXI, rule 100, C. P. C. Only after their-dis-- possession. Accepting the appeal the learned Additional District Judge dismissed the objection petition as premature.
4. A revision petition was then filed by the objectors/respondents. The learned Judge in the High Court took note of the conflicting authorities on the competence of such an objection petition before dispossession and preferred the view taken in Mst. Sahib-ud Nisa's case (PLD 1959 Lah. 511), and reversed the order of the first appellate authority and remanded the case to the executing Court to proceed with the disposal of the objection petition on merits.
5. The learned counsel for the petitioners contended that the law holding the field on thesubject by which the learned Judge in the High Court should have considered himself. Bound was the one contained in Munawar Hussain and another v. Rehmat All and All Hussain v. Rafiquddin and 9' others (PLD 1977 Lah. 418.). There was no decision of the Lahore High Court of a subsequent date holding to the contrary. It is said that the decision in Ali Hassain's case in particular reviewed the entire case-law on the subject and came to the conclusion that there was no right in an objector to file such an objection petition with regard to execution of a decree and to avoid dispossession. The inherent jurisdiction claimed by the civil Courts had been denied. Considering also the history of the litigation and the conduct particularly of Syed Saqlain Abid respondent No. 3, an adult member of the same family, such a petition, according to the learned counsel, could not be treated as one filed in good faith or for protecting valuable rights independently of Saqlain Abid.
6. There is, apparently, a conflict of views on the question whether (i) a person, not deriving title or interest in immovable property in his possession through the judgment-debtor can, as a matter of right, maintain an application under Order XXI, rule 100, C. P C. Objecting to the execution and claim its adjudication by the Court, without first or as a pre-condition, being dispossessed from the premises; (ff) whether the executing Court is power--less to entertain, determine or adjudicate any such claim without first getting the objector dispossessed from the premises. In view of the contested questions raised, we have converted this petition into an appeal and heard both the parties at length on the questions of law involved.
7. The law laid down by this Court answers the questions, not directly, but indirectly or impliedly. The answers, however, suffer from no ambiguity. In the case of Mohiuddin Molla . The Province of East Pakistan and others (PLD 1962SC119), the powers of the Court arising out of their jurisdiction to grant relief was examined and the following law was laid down "The Civil Procedure Code, generally speaking, does not create new powers but regulates the exercise of powers already possessed by the Court. Even before the Civil Procedure Code was enacted the civil Court possessed powers of the kind mentioned in the Civil Procedure Code. It possessed these powers because the civil Court has jurisdic--tion to determine and protect civil rights and for the protection of these rights the exercise of such power is essential."
These observations are reminiscent of the remarks recorded by Mahmood, J., in Narslngdas v.
Mangal Dubey (ILR5All. 163), that- ---according to my view of the rules of construction applicable to statutes like the Civil Procedure Code the Courts are not to act upon the principle that every procedure is to be taken as prohibited till it is expressly provided for the Code, but on the converse principle that every procedure is to be understood as permissible till it is shown to be prohibited by law."
8. In the case of Muhammad Sohrab Ali and others v. Bashir Rahman Mian and others (1968 SCMR 341), the conflict of competing rights was somewhat involved but the finding as well as the law laid down are fully brought out in the following paragraph of the judgment: -- "The next question that arises is whether in the circumstances the appellants were liable to be ejected on the strength of a decree obtained by Parvez Ali against Ishaque Ali Mia. If there was no surrender of the tenancy by Basanta Babu then a decree in a suit, to which Basanta Babu was not a party, could not have the effect of putting an end to his interest in the land, which the appellants' predecessor-in-interest Abdul Jalil Biswas had purchased in 1951 from Basanta Babu. The finding of the Courts below on this question is of course based mainly on the ground that since the appellants' predecessor-in-interest got access to the premises through Ishaque Mia, the decree against Ishaque Mia was binding upon him. In coming to this finding, however, the Courts below have overlooked that Abdul Jalil Biswas claimed to have entered into possession of the leasehold interest in his own right and not as the guardian of the minor assignee under the assignment thereof granted to him by Basanta Babu and not through Ishaque Mia. In the circumstances, since Abdul Jalil Biswa s was claiming to be in possession of the property in his own right, his resistance to the taking over of a9, possession in execution of the decree was on his own account and, therefore, the application for execution should have been dismissed under Order XXI, rule 99 of the Code of Civil Procedure. The resistance or obstruction to the delivery of possession was, in the facts and circumstances of this case, certainly not at the instigation of the judgment-debtor or on his behalf."
9. In the case of Abdus Salam v. Sharif Ahmad and another (1971 SCMR 596), Abdus Salam applied for being impleaded in the ejectment proceedings under Rent Restriction Ordinance claiming to be in possession of that property in his own right. He failed before the Rent Controller and in appeals against his order. When the matter came to this Court it was held that appeal against such an order of the Rent Controller, i.e. One of not impleading a party, was not competent.
However, the observations made are very relevant for the purpose of the controversy in this appeal.
These were as follows :- "We would, however, observe that the petitioner has given notice to the respondent No. 1 that he is in possession of the property in his own right. In case the eviction order is passed against respondent No. 2 the executing Court will execute the decree against the petitioner after determining his right in the property in dispute."
10. The reasons for not divesting or denying the executing Court a power in the matter have been expressed with clarity and illustratively in a judgment of the High Court in Mst. Sahibunnisa and others v. Mst. Mahmooda Begum (PLD 1959 Lah.511), in the following words :- "There is always inherent jurisdiction in a Court executing a decree to determine, how, to what extent, and in what manner a decree is to be executed. An important thing to remember is this.
When the person dispossessed puts in an application under Order XXI, rule 100, C. P. C. For restoration of his possession on the ground that he was not liable to be dispossessed in execution of that decree, what the Court determines is whether his dispossession was legal or illegal. If he was in possession on account of the judgment-debtor, then his dis--possession was not illegal, but if he was in possession of the property on his own account, his dispossession was illegal because a decree for possession binds only the judgment-debtor, and as is expressly provided in Order XXI, rule 35 and in the form of warrant for possession, contained in the First Schedule to the Code of Civil Procedure (Form No. 11), it is only a person bound by the decree who can be removed from the property of which possession is to be delivered. No person who is not bound by a decree can be ejected in execution of that decree. If a person who is in possession on his own account approaches the Court and says: "You are going to take action in execution of the decree which is altogether illegal", shall the Court say to him. "It may be illegal but we will first take such action and then you can come and complain". The ejectment may cause to the person in possession irreparable loss. He may be running a shop in the premises on which he depends for his maintenance. It may be a residential house and he may have no other place to live in. The application under Order XXI, rule 100, which he submits after his dispossession may take a longtime for decision. Yet, according to the view put forward by learned counsel for the petitioner, the Court is altogether debarred from staying its hands. In fact the argument amounts to this that the Court is unable to stop the abuse of its own process. It is not possible for me to say that a Court must first commit an illegality--illegality which may result in dire consequences to an innocent person-and determine the question most relevant to the execution of the decree only after the illegality has been committed."
11. In the case of Messrs Service Medical and General Stores, Karachi v. Haji Rashiduddin and 3 others (1971 SCMR 591v), an application had been filed by the objectors therein under Order XXI, rule 99, C. P. C. The application was dismissed the same day. A revision against that order was dismissed and the matter was brought to this Court. It was dealt with in the following words :- "The main grievance of the petitioners is that the learned Civil Judge ought not to have dismissed the application under Order XXI, rule 99 summarily and should have issued notice to the respondents and decided the dispute between the parties on merits. The contention of the petitioner appears to be well-founded but this has now only become academic question as the petitioners have already been evicted from the property in dispute. Their proper remedy was Order XXI, rule 100, C. p. C. Which they have already taken and, therefore, they should agitate the dispute between the parties in the said proceedings. We expect that the learned Civil Judge will go into the question he--their any fraud was played on the petitioners in the eviction proceedings which were taken against respondent No. 4."
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.
13. Syed Saqlain Abid was the sole respondent in the ejectment proceeding before the Rent Controller. He had contested the proceedings for years act in different forums, right up to this Court. On no principles could he be permitted to join the other objectors or to make a common Because with them so as to raise questions which he could have raised fore the Rent Controller and having nut raised he was precluded for be all time, particularly before the executing Court, from reagitating them. If the executing Court is allowed to dispose of his objection in terms of the issues framed but if the entire jurisdiction of the Rent Controller would be subverted and a proceeding in the nature of review or rehearing would be undertaken not by the Tribunal having exclusive jurisdiction in the matter but by a civil Court while seized of the execution of the order. So far as Syed Saqlain Abid's claim was concerned, it could not at all be entertained.
14. Syed Saqlan Abid is an adult male member of the same family which has come forward at the stage of execution of the ejectment order, as objectors. All of them, lived to the same house, under one roof. The litigation had been going on for years. Syed Saqlain Abid bad no conflicting interest with others, so much so that they had all joined in the objection petition and made a common cause with him. They have raised grounds which fell within the exclusive jurisdiction of the Rent Controller, viz. The existence or absence of the relationship of landlord and tenant. This objection petition was in substance an objection petition filed by the judgment-debtor and on his behalf by others. Such a claim was incompetent under Order XXI, rule 98, C. P. C. And being mala fide should have been rejected forthwith.
15. We accept the appeal with costs, set aside the judgment of the High Court with the result that the objection petition filed by the respondents shall stand dismissed.