SAFDAR SALEEM SHAHID, J. Through the instant writ petition, the petitioner has assailed the legality and validity of the order dated 26.07.2022, whereby the learned Civil Judge ordered for registration of an FIR against the judgment debtor, who according to report of the bailiff obstructed in the execution of warrants of possession.
2. Brief facts necessary for decision of the instant petition are that during the execution of decree dated 25.09.2021, the learned executing Court issued warrants for possession of the property in dispute for 15.07.2022 and SHO of the concerned police station was also directed to provide assistance to the bailiff of the Court. In execution of the warrants the bailiff of the Court delivered possession of the disputed property to the decree holders, however, it was reported that the judgment debtor obstructed in the execution process and torn out the warrants. On the basis of report of the bailiff a show cause notice was issued, but on failure of the judgment debtor to appear and file reply thereto, the learned executing Court passed the order impugned herein, which is reproduced as under:- "Instant execution petition had been fixed for written reply on behalf of Mst. Kousar Mai for today.
Mst. Kousar Mai despite of her service twice a time did not submit written reply of notice. Record further transpires that on 15.07.2022 bailiff submitted his report that he has transpierced possession of decreed property in favour of the decree holders and in said report he further stated that Mst.
Kousar Mai tore warrant of possession and legal proceeding may kindly be initiated against her.
Keeping in view the facts stated above SHO City is directed to register an FIR against Mst. Kousar Mai on application of bailiff Abdur Rehman. Possession has been transferred in favour of the decree holder. Decree has been completely satisfied. File be consigned to the record room after its due completion and compilation."
3. Arguments heard. Record perused.
4. Procedure for execution of a decree/order is provided in Order XXI of the C.P.C. However, in case there is any resistance in the execution process, the Court is empowered to proceed under Rule 98 to Order XXI of the C.P.C., which is reproduced as under:- "Resistance or obstruction by judgment debtor.--- Where the Court is satisfied that the resistance or obstruction was occasioned without any just cause by the judgment debtor or by some other person at his instigation, it shall direct that the applicant be put into possession of the property, and where the applicant is still resisted or obstructed in obtaining possession, the Court may also, at the instance of the applicant, order the judgment debtor, or any person acting at his instigation, to be detained in prison for a term which may extend to thirty days."
5. As per provisions reproduced above, the learned executing Court was at the most empowered to detain the judgment debtor or the person who was resisting or obstructing in the execution process and that too after such fact having been proved as a result of inquiry. The executing Court in the instant case instead of holding any inquiry only relied upon the report of the bailiff and passed the impugned order which is not sustainable in any manner. The Court even did not record statement of the bailiff in order to verify the report submitted by him and passed the impugned order on the basis thereof.
6. It is also to be noted that the warrant of possession was executed and the resistance was not continuing. However, as per law in case of resistance the executing Court was to direct the applicant (decree holder) to be put into possession of the property and if there was still resistance or obstruction, the Court was to proceed further and that too at the instance of the applicant, but in the instant case the impugned action has been taken without appreciating the law on the subject at the instance of bailiff of the Court.
7. Another alarming fact proved beyond any shadow of doubt is that while issuing warrant for possession the SHO concerned was also directed to provide police aid to the bailiff so that execution thereof can be executed without there being any unpleasant incident. However, while passing the impugned order the learned executing Court did not even bother to summon the SHO concerned or call for his report in order to satisfy itself about the correctness or otherwise of the report of bailiff and passed the order impugned herein, which is not sustainable in the eye of law.
8. It is a settled principle that a Judge has to be very cautious and should examine the report of the bailiff and scrutinize the same deeply and not cursorily before passing any order but in the instant case no steps have been taken in order to determine the correctness or otherwise of the report relied upon before passing the impugned order. The Court even did not call upon the bailiff to submit affidavit to verify the correctness of his report and passed the impugned order.
9. However, in response to notice issued by this Court, the SHO concerned, who has been arrayed as respondent No.2, has entered appearance and submitted his report, a perusal of which reflects that in compliance with the order of the executing Court dated 29.06.2022, Abdul Rehman Bailiff was provided police aid through rapat No.11 on 02.07.2022, whereafter warrant of possession was executed, but during execution process neither any unpleasant incident took place nor any order for registration of case for any such incident has been conveyed to the police station concerned. In view of the report submitted by respondent No.2, report of the bailiff submitted before the executing Court, appears to be doubtful and was not reliable for passing the impugned order.
10. As regards the contention that possession of the house was taken over by kidnapping the petitioner by the police officials and she did not know about any notice or summon, it appears that the said allegation relates to the period when in execution of warrant, possession of the property in question was handed over to the decree holders. The possession as per repat No.11 and report of the SHO concerned was delivered on 02.07.2022, but the show cause notice was issued after the said date for 22.07.2022 and on refusal of the petitioner to accept service, notice was repeated for 26.07.2022, but she failed to appear and file reply thereto. In the circumstances, even if the executing Court was misled in passing an unwarranted order, it cannot be said that the petitioner was condemned unheard.
11. For what has been discussed above, the instant writ petition is accepted and the impugned order dated 26.07.2022 passed by the executing Court is set aside. There shall be no order as to costs.