MIRZA VIQAS RAUF, J. This petition under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973 arises out of an order dated 04th January, 2018, whereby the learned Additional District Judge, Pindigheb proceeded to dismiss the revision petition filed by the petitioners against the order dated 15th December, 2017 passed by the learned Civil Judge Class-III, Pindigheb allowing an application for appointment of local commission moved by respondents Nos.1 and 2 (hereinafter to be referred as "respondents").
2. Facts in brief necessary for adjudication of instant petition are that "respondents" instituted a suit for permanent and mandatory injunction averring therein that they are owners of land measuring 02 Kanal 03 Marla bearing Khasra No.4742 situated in the revenue estate of Pindigheb and the petitioners though have no concern with the same but they intend to demolish the construction raised on the said land. Suit was initially resisted by the petitioners, who submitted their written statement wherein they controverted, the facts contained in the plaint. During the proceedings the petitioners, however, recorded their statement on the basis of which suit was dismissed vide order dated 05th December, 2017. The "respondents" then moved an application under Order XXI, Rule 32 of the Code of Civil Procedure (V of 1908) (hereinafter to be referred as "C.P.C.") but when the proceedings are underway in the said application, the "respondents" filed an application seeking appointment of local commission for the purpose of demarcation at the site: The application was accepted by way of order dated 15th December, 2017 by the learned Civil Judge Class-III, Pindigheb. The petitioners feeling dissatisfied though filed a revision petition before the learned Additional District Judge, Pindigheb but same was dismissed through impugned order.
3. Learned counsel for the petitioners contended that learned executing court was not vested with any authority to appoint a local commission and as such impugned orders are not tenable under the law. He added that appointment of local commission can only be made during the pendency of the suit for the purposes mentioned in Order XXVI, Rule 9 of "Cr C". Learned counsel contended that the courts below have totally misconstrued the facts and as such impugned orders are not tenable under the law. In order to supplement his contentions, learned counsel placed reliance on Maqsood-ur-Rehman and another v. Abdul Manan (2007 YLR 2724).
4. Conversely, learned counsel for "respondents" submitted that appointment of local commission was necessary to elucidate the matter in issue and the Civil Court was justified to appoint the local commission. Learned counsel contended that order of learned trial court was further affirmed by the learned revisional court and as such constitutional petition is not maintainable. It is submitted that concurrent findings are in consonance with law. Reliance is placed on Muhammad Nazir v.
Muhammad Bashir and others (2017 YLR Note 228).
5. After having heard learned counsel for the parties at considerable length, I have perused the record.
6. The moot point which requires consideration of this Court is as to "whether learned executing court is vested with the power to appoint local commission during the execution proceedings?"
7. It is evident from the record that a suit for permanent and mandatory injunction was instituted by the "respondents" against the petitioners wherein they claimed that they are owners of property bearing Khasra No.4742 situated in the revenue estate of Pindigheb and the petitioners without having any right are intending to interfere with their proprietary as well as possessory rights. Suit was initially though resisted by the petitioners, who submitted their written statement, however, during the proceedings a statement was recorded by petitioner No.1 along with counsel for the petitioners to the following effect :- Suit was then dismissed as having become infructuous vide order dated 05th December, 2017, which is reproduced below for ready reference and convenience :- "05.12.2017 Present:- As Above Statement of defendant No.1 and counsel for the defendants have been recorded today. In 'the light of the statements, the cause of action of this suit has ceased to effect. Hence, instant suit is hereby dismissed being infructuous however, the defendants shall be bound by their statements recorded today. File be consigned to the record room after its due completion."
8. The "respondents" thereafter moved an application under Order XXI, Rule 32 of "C.P.C." complaining violation of the statement/undertaking given by the petitioners. This followed an application for appointment of local commission, which was moved by "respondents" seeking a direction from the court to ask the local commission to conduct the demarcation at the site. The application was though resisted by the petitioners but it was accepted vide order dated 15th December, 2017. The petitioners then assailed the said order before the learned Additional District Judge, Pindigheb through a revision petition under Section 115 of "C.P.C." but same was dismissed through order dated 04th January, 2018.
9. Power of court to issue commissions is embodied in Section 75 of "C.P.C." which reads as under:- "75. Power of court to issue commissions.--Subject to such conditions and limitations as may be prescribed, the Court may issue a commission--
(a) to examine any person;
(b) to make a local investigation;
(c) to examine or adjust accounts; or
(d) to make a partition."
In furtherance Order XXVI of the Code ibid deals with the commissions and in terms of Rule 9 a court is vested with the power to appoint a local commission where it deems a local investigation to be requisite or proper for the purpose of elucidating any matter in dispute, or of ascertaining the market value of any property, or the amount or any mesne profits or damages or annul net profits, with a direction to make such investigation and to report thereon. Order XXVI Rule 9 is reproduced below for ready reference and convenience:- "9. Commissions to make local investigations. --In any suit in which the Court deems a local investigation to be requisite or proper for the purpose or elucidating any matter in dispute, or of ascertaining the market value of any property, or the amount or any mesne profits or damages or annual net profits, the Court may issue a commission to such person as it thinks fit directing him to make such investigation and to report thereon to the Court: Provided that, where the Provincial Government has made rules as to the persons to whom such commission shall be issued, the Court shall be bound by such rules."
From the bare language of the above referred provision of law it is manifestly clear that power of the court to appoint local commission is restricted to the proceedings in the suit.
10. It is not in dispute that the application under Order XXI, Rule 32 of "C.P.C." comes under proceeding in execution. There is also no cavil to the proposition that the learned executing court is not a civil court. In somewhat similar circumstances in the case relied by learned counsel for the petitioners reported as Maqsood-ur-Rehman and another v. Abdul Manan (2007 YLR 2724) learned Peshawar High Court has held that learned executing court is not vested with the power to appoint local commission. So far judgment in the case of Muhammad Nazir supra referred by learned counsel for "respondents" is concerned, same is clearly founded on entirely different facts and circumstances, as such it is not relevant to the case at hand. Moreover said judgment was clearly rendered in isolation of previous judgment of this Court in the case of Ch. Gulzar KHAN and 3 others v. Saghir Ahmed and 7 others (2004 MLD 402) wherein a learned Single Bench of this Court, while pondering upon the powers of learned executing court to issue a commission has held that learned Civil Judge during the execution proceedings cannot appoint local commission. The relevant extract from the same is reproduced below:- "10. Before I proceed to decide the question of maintainability of this petition, I would dilate upon the controversy regarding powers of the trial Court to appoint Naib Tehsildar (Halqa) as local commission as the petitioner contends that this order was passed without jurisdiction as the provisions of the above Order apply only to the suit and do not apply to the proceedings in execution. It is not disputed that the application under Order XXI, Rule 32, C.P.C. is a proceeding, in execution. Relevant, provision of Order XXVI, Rule 9, C.P.C. reads as under:-- Commission to make local investigations.---In any suit in which the Court deems a local investigation to be requisite or proper for the purpose or elucidating any matter in dispute, or of ascertaining the market value of any property, or the amount or any mesne profits or damages or annual net profits, the Court may issue a commission to such persons as it thinks fit directing him to make such investigation and to report thereon to the Court: Provided that, where the Provincial Government has made rules as to the persons to whom such commission shall be issued the Court shall be bound by such rules.
In case reported as Ayanampudi Venkayya v. Lanka Rattayya (AIR 1939 Madras 578) while interpreting the Order XXVI, Rule 4, C.P.C. it has been held that the provision of Order XXVI, Rule 4 are not applicable to execution proceedings and have not been made so by section 141. This rule in its language empowers a Court to issue a commission in any suit. The learned counsel for the respondent contends that by section 141 C.P.C. the provisions of the above, rule is made applicable to proceedings in execution. Section 141, C.P.C. reads as follows:-- "The procedure provided in this Code in regard to suits shall be followed, as for as it can be made applicable, in all proceedings in any Court of civil jurisdiction."
11. There is no cavil with the proposition that the Executing Court is not a Court of civil jurisdiction. In case reported as Thakur Prasad v. Fakirulla (1895) 17 All. 106, their Lordships of the Privy Council at page 111 said that: "the whole Chapter 19 of the Code consisting of 121 sections, is devoted to the procedure in execution, and it would be surprising if the framers of the Code had intended to apply another procedure, mostly unsuitable, by saying in general terms that the procedure for suit should be followed as far as applicable. Their Lordships think that the proceedings spoken of in section 647 include original matters in the nature of suits as proceedings in probates, guardianships, and so forth, and do not include executions."
The above stated case was decided under the provisions of old Indian Code of Civil Procedure in which Chapter 19 corresponds to Order XXI and section 647 to the present section 141. The wording of section 647 is, although slightly different to the same effect, and it is as follows:-- "The procedure herein prescribed shall be followed as far as it can be made applicable in all proceedings in any Court of civil jurisdiction other than suits and appeals.
12. In case of Burhanuddin Ahmad and others v. Veda Brata Chakraborti and others (PLD 1964 Dacca 661) while interpreting the provisions of Order XXI, Rule 32(5), C.P.C. it was observed that:-- "clause (5) of Rule 32, Order XXI, C.P.C., makes the specific provision when by the decree of the Court it is required that an act is to be done and in case of failure of performing the act required to be done by the judgment-debtor but the same may, be done so far as practicable by the decree- holder or some other persons appointed by the Court. So, apparently clause (5) has no bearing to or connection with the case of a prohibitory injunction order."
The learned counsel for the respondent has relied on the case reported as Birgis Jahan Bajiga Malik v. Muhammad Hasan and others (PLD 1964 Dacca 202) and Muhammad Ameer Qasmi v.
Ch. Muhammad Azhar (1990 CLC 1514 Lahore). In the former referred case, while interpreting the provisions of Order XXI, Rule 32, C.P.C., it was ruled that "if relief for possession not prayed for and consequently decree passed in suit also silent as to delivery of possession--Notwithstanding such omission Executing Court not debarred from granting relief of possession.
13. In the above referred two cases, it was the decree of specific performance which was executable under Order XXI, Rule 32, C.P.C. and as a natural corollary Order XXI, Rule 32(5), C.P.C. was also made applicable, which is not the position in the case in hand, because for intents and purposes the statement of the petitioner and his learned counsel in the latter suit could only tantamount to stay order as held in Muhammad Ashiq's case (PLD 1982 Lahore 459). In the case of Muhammad Hussain and others v. Muhammad Aslam (1998 SCMR 151) the provisions of Order XXI, Rule 32, clauses (1), (2), (3) and (5) came up for interpretation and it was ruled that the decree- holder on the breach of the prohibitory order under the rule is not entitled to any specific relief; yet it does not mean that the judgment-debtor can escape penalties and consequences of breach of decree for injunctions. Clauses (1) to (3) apply to both classes of injunction but clause (5) has no application in the case of simple prohibitory injunction.
14. On the touchstone of the provisions of Order XXVI, Rule 9, read with Rule 10, C.P.C. I am constrained to hold that the learned Civil Judge had no jurisdiction, to appoint the Naib Tehsildar as local commission on the application of the respondent in the execution proceeding under Order XXI, Rule 32, C.P.C. Similarly, Order XXI, Rule 32(5), C.P.C. also is not applicable because neither there is a decree for specific performance nor for mandatory injunction in favour of the petitioner. This being the position, the order of the learned Civil Judge dated 22-1-1998 appointing the Naib Tehsildar as local commission was without jurisdiction and therefore was without any lawful authority, and the same is set aside."
11. The nutshell of above discussion is that the learned Civil Judge, being the executing court was not vested with any power to appoint local commission. The revisional court, while affirming such order has erred in law and as such orders of both the courts below are illegal and unlawful.
Resultantly this petition is allowed and impugned orders are set aside with no order as to costs.