MUHAMM.AD NAEEM ANWAR, J:- Respondent No.1 had filed an objection in execution petition before the learned Additional District Judge-I, Mardan, alleging therein that the proceedings in Execution petition No. 22/6 has been conducted as a result of the inter se collusion of the present petitioners and that of respondents No.2 and 3 and the house in respect of which compromise was produced before the executing court and joint statement was recorded is, in fact, his owned and possessed property, situated in Aback deli. He also alleged that he is neither the judgment-debtor nor that he has derived his title from him, thus, filing of execution petition to the record room being satisfied based on the statement of decree holder and judgment debtor about his in question are inconsistent and in operative upon his right. His objection petition was resisted by the present petitioners on different legal and factual objections and Para No.1 of the objection petition was categorically denied. Learned executing court, after hearing the arguments of the present petitioners and respondent No.1 has held the objection petition maintainable through the impugned order, dated 30.03.2023, which has now been questioned by the petitioners by filing the instant petition.
2. Mr. Khalil Nasir, Advocate, learned counsel for the petitioners, contended that the objection petition of respondent No.1 was not entertainable for further process because the execution petition has been tiled and satisfied. According to him, if any right of respondent No.1 relates to the house which was the subject matter of the compromise, he may file an application under section 47 of the Code of Civil Procedure "C.P.C". He added that since the executing court has become functus officio, hence, the proceedings could not be revived and, even if the alleged rights of respondent No.1 are based upon any deed which requires proof thereof, he may file regular suit. At the end of his submissions, he contended that possession of the house has been handed over to the petitioners, thus, the objection petition has become infructuous and requires dismissal.
3. Contrarily, learned counsel for respondent No.1 contended that regular civil suit is barred under section 103 C.P.C and the objection petition of respondent No.1 is in continuity of the execution proceedings where the right of the applicant/ respondent No.1 shall be determined by the executing court. He maintained that, even if the possession was handed over to the decree holder or any other person claiming thereunder, the person aggrieved through a complaint is required to establish his status and if he proves that he was bona fide claimant of the property then the possession shall be restored to him.
4. We have heard learned counsel for the petitioners and respondent No.1 and with their valuable assistance we have gone through the file and documents appended therewith.
5. During pendency of this petition, petitioners filed a CM No. 2298 for placing on record the deposited slip for a sum of Rs. 5000/-, dated 20.11.2024 pursuance to the direction of this court for resurrection of writ petition, when it was dismissed for non-prosecution, thus, the instant. CM, in view of the contents qua the direction of this court, dated 13.11.2024, coupled with affidavit is allowed.
6. Scrutiny of the record reveals that Aizaz Ullah (petitioner No.1) had sued Mujahid Khan (respondent No.2) for recovery of Rs. 44,91,000/- based on Iqrar Nama, dated 16.07.2018, under Order XXXVII C.P.0 before the District Judge. The suit was decreed on 19.02.2019 followed by the execution petition. The Judgment-debtor was put on notice and during execution proceedings, respondent No.3, the father of the judgment-debtor, and petitioners No.1 and 2 appeared and produced a compromise deed manifesting therein that respondent No.3 (Muhammad Sajid) the father of the judgment-debtor is owner of the house constructed over an area of five marla, situated in the Mohalla Slier Dil Khan of the Revenue Estate of Hod, within the vicinity of Abadi deli, with the description mentioned therein, owned and possessed by him. It was agreed between him and the petitioner No.1 for settlement of the issue of decretal amount of Rs. 44, 91,000/- and that of Shah Zaman (petitioner No.2) amounting to Rs. 2050, 000/-total amounting to Rs. 6541000/- has been settled through transfer of the house with which, thereafter, he will have no concern and connection as both the decree passed against respondent No.2 have been satisfied, proper registry shall be executed in favour of the petitioners. Written terms of the compromise dated 15.10.2022 were produced and statement of petitioners No.! and 2, the decree holders, and respondent No.3, the father of judgment debtor, was recorded, who have reiterated and endorsed the contents of the compromise, Ex.PA. All three (petitioners No.1 and 2 and respondent No.3) thumb impressed the statement before the court and admitted their thumb impressions and signature on Ex.PA as correct. Executing court, vide order dated 15.10.2022, has filed the execution petition being satisfied in connection with decrees passed in favour of petitioners No. 1 and 2, consequently, execution petition No 21/10 and 37/10 were consigned to the record room. Respondent No.1 alleged that after completion of the execution proceedings which were concluded with their collusion inter se, local police were directed to hand over the possession of the house to decree holder of money decree and he was astonished that the house owned and possessed by him was made the subject matter with which respondent No.3 had got no concern. The petitioners were put on notice, who have refuted the contents objection/petition, which was held maintainable by the learned executing court. It is worth mentioning that respondent No.1 alleged himself to be the owner of the house, which fact was denied by the petitioners through their written reply.
7. Undoubtedly, the execution petitions were filed but the application has got its root in execution petitions and the order thereon, which were filed to record room, based on the settlement in connection with the house alleged by the petitioners to be his ownership in possession. Any person who is resisting the execution petition and not the judgment debtor or deriving title thereof may approach to the execution court for redressal of his grievance, upon which the execution court has to inquire the matter, if his objection is found correct then proceedings against his interest are stayed and if he is dispossessed, possession is to be restored to him, otherwise his objection petition is to be dismissed. This is the procedure as provided in the procedural law. Order XXI rule 99 is in respect of the resistance or obstruction of the bona fide claimant, which, for ready reference, is reproduced as under: `Resistance or obstruction by bona fide claimant - Where the court is satisfied that the resistance or obstruction was occasioned by any person (other than the judgment-debtor) claiming in good faith to b in possession of the property on his own account or on account of some person other than the judgment-debtor, the court shall make an order dismissing the application."
The above reproduced Rule is to be read in the context of the provisions of Rules 97 and 98, which pertain to the execution of the decree and resistance of the possession by any person, making an application to the court complaining of such of resistance or obstruction. In the matter in hand, respondent No.1 through his application is claiming himself the bonafide owner and possessor of the property then irrespective of the fact as to whether execution petition is tiled or otherwise, the objection has got its nexus with the execution petition for which neither respondent No.1 could be directed to file a regular civil suit nor to present an application under Order 47 C.P.C. There is preclusion, barring the institution of fresh suit under Rule 103 C.P.C according to which determination of all questions arising as to the title or interest in, or possession of, immovable property between an application under rule 97 and the opposite-party or between an applicant under rule 100 and the opposite-party, shall be adjudicated upon and determined by the court, and no separate suit shall lie for determination of any such matter. Rule 100 of Order XXI is relevant in view of the objection raised by the petitioners that the execution petition has been filed being satisfied whereas the ibid is in respect of the dispossession by the decree holder or purchaser from the property, according to which, where any person other than the judgment debtor is dispossessed of immovable property by the holder of a decree for the possession of such property or, where such property has been sold in executing of a decree, by the purchaser thereof, he may make an application to the court complaining of such dispossession. Sub rule 2 of Rule 97 provides the procedure for determination of a question which reads as: "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."
Whereas rule 101 is for the redressal of the person who is bonalide claimant, which is reproduced herein below "Where 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. it shall direct that the applicant be put into possession of the property."
Reference may be made to the case" Mst. Khurshid Begum etc. versus. Mr.Ghulam Kubra etc."
(1982 SCMR 90) wherein it was observed: 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 Properly.
5. It is indisputable that respondent No.1 was neither judgment debtor nor was deriving the title from judgment debtor. It is also undeniable that the property is situated in Abadi deli, and the boundaries thereof are the same which were mentioned in the deed/compromise produced before the executing court and the description which has been enumerated in the application of the petitioners. The only question requiring determination from the execution court is as to whether father of the judgment-debtor has got connection with the house, if not, whether the house of respondent No.1 could be alienated? The above question requires recording of evidence, both from petitioner and respondent No.1.There is no cavil with the proposition that where any person other than the judgment debtor is dispossessed from immoveable property by the decree holder, he may make an application to the Court complaining of such dispossession. The term 'any person' used in Order XXI Rule 99 CPC means a stranger to the suit who was not impleaded in the original suit.
Once an application under Order XXI Rule 99 is filed, it is incumbent upon the executing court to consider all for and against claims including the right, title and interest of the parties under Order XXI Rule 101 which bars a separate suit by mandating the execution court to decide such a dispute.
8. In addition to the above, learned executing court has only made/passed an order by holding that objection petition is maintainable, which has not yet decided the fate of the allegation of respondent No.1 in connection with his ownership or possession, as denied by the petitioners. Moreover, the order of learned executing court is interlocutory in nature, and it is settled principle that non- interference by this court in the interlocutory order is a rule whereas interference is an exception. Ref: Habib Bank Limited and Others vs. Sved Zia ul Hasan Kazmi (1998 SCMR 60).
9. So lay as the objection of the learned counsel for the petitioner that the learned executing court has become functus officio and could not proceed with the matter of the objection petition, which is misconceived and repelling to the provisions of Order XXI C.P.C and the scope of the execution proceedings qua determination of right of any person who is claiming himself to be owner or possessor of the property. In view of Rule 103, no separate suit shall lie for such determination.
Moreover, application under section 47 C.P.C could be filed in connection with execution, satisfaction and discharge of the decree whereas the matter in hand is in respect of the claim of respondent No.1 which has got no link with Section 47 for determination of his right. The order of Learned executing holding the objection petition as maintainable has caused no prejudice to the interest of petitioner or adversely affected his rights as Executing court shall decide the fate of execution petition in accordance with procedure provided under Order XXI, thus, the instant petition being bereft of merit is hereby dismissed, however, costs shall fallow the event.