This revision application calls in question the validity of the order passed by the II Civil Judge First Class, Karachi, dated 17th March 1969, in Execution Case No. 84/68.
2. The decree-holder, who is the plaintiff, after the dismissal of the petition of the judgment-debtor by the Supreme Court on 3rd September 1968, filed an execution application on 2 7th September 1968, for the ejectment of the judgment-debtor, upon which the Court ordered the issuance of notice to him for 15th October 1968. The judgment-debtor filed objections on 5th November 1968.
The objections were disallowed and on 25th November 1968, writ of ejectment was ordered to issue.
On 26th November 1968, the judgment-debtor again filed an application and prayed that he be given time to vacate the premises and meanwhile the execution of the writ of ejectment be stayed.
The Court issued notice to the decree---holder and meanwhile stayed the execution of the Writ.
The stay of the writ was resisted by the decree-holder but by an order dated 7th December 1968, the Court granted time till 31st December 1968, to the judgment-debtor to vacate the premises. The decree-holder thereupon filed Revision No. 321/68 in the High Court against this order which was ultimately accepted on 24th February 1969, and the above order was set aside. However, during the pendency of the above revision the time to vacate the premises expired; therefore, the decree- holder filed an application on 2nd January 1969, and prayed that police aid be provided to assist the bailiff to execute the writ of ejectment. This request was refused on 4th January 1969, on 6th January 1969 the bailiff along with the representative of the decree-holder went to execute the writ of ejectment. The judgment-debtor who was present slipped away but his brother, who is a cashier and was on the premises, collected men and became violent and thus refused to allow the writ to be executed. Accordingly, the same day, that is 6th January 1969, the decree-holder again filed another application and prayed for police aid as, according to him, there was likelihood of violence.
Upon this application two orders appear to have been passed: the first is dated 7th January 1969, which directed the fixation of the copy of the notice on the premises to inform the judgment- debtor to vacate the premises; the second was dated 9th January 1968, which was passed after the compliance of this order, by which the Court provided police aid to assist the bailiff.
3. The decree-holder appeared to be dissatisfied with this order as it did not authorise the bailiff to break open the locks according to rule 255 of the Sind Civil Courts Rules, Accordingly, the decree- holder filed another application on 11th January 1969, and prayed for more compre--hensive orders. There is an office note on this application that the writ of possession was returned by the bailiff with the report that "the execution is stay (stayed) in C. M. As. Nos.4/69 and 5/69". The Court, however, ordered the counsel for the parties to argue the matter on 14-1-69 as stay was granted by the civil Court. On 14-1-69 the Court stayed the execution of the writ till further orders on the basis of the endorsement of the bailiff although no such order was actually produced. The hearing was then put off for further consideration to 30th January 1969. Again on 24-1-69, the decree-holder filed another application and prayed that the order dated 14-1-69, be reviewed as no stay order had been granted by any Court. On 30th January 1969, the Court, however, refused to vacate the stay order. The counsel for the decree-holder then filed his statement in writing on 7th February 1969, to show that no stay was granted. Para (e) of the statement is relevant and is reproduced as under:- "(e) The position therefore is that, while there was no stay of any kind in regard to the property which is the subject---matter of the above-noted execution and Executions Nos. 85 and 86 of 1968, when, this Hon'ble Court was pleased to stay execution or till the last hearing on 31-1-69 there is now an ad interim stay until 13-2-69 in regard to the property which is the subject-matter of Execution Nos. 85 and 96, but there is none relating to the piece of land which is the subject--- matter of Execution No. 84 of 1968."
The Court, however, by its order dated 7th February 1969, refused to vacate the stay order. The decree-holder again filed an application on 20th February 1969 and prayed that the writ of ejectment be issued in accordance with rules 255 and 256 of the Surd Civil Court Rules and that police aid be also provided. This application was ordered to be put up on the next date of hearing, that is 24th February 1969. On that date nothing substantial happened and the hearing was again put off 3rd March 1969. On 3rd March 1969, the judgment-debtor filed a statement to have the proceedings stayed, a copy of which was given to the counsel for the decree-holder. The order- sheet of that date shows that a copy of this application was given to the decree-holder and he was ordered to file an affidavit to controvert those allegations and that in case if those allegations were correct it was further required of the decree-holder to show whether he would still continue his efforts to pursue the execution proceedings. On the next date of hearing, that is 5th March 1969, the required affidavit was filed by the decree-holder and the Court ordered the issuance of writ of ejectment as prayed. The issuance of writ in this form, according to the counsel for the decree- holder, also provided for police assistance as that request was also included in the prayer. It appears from the application dated 14.3-1969, that another application was filed by the decree- holder on 11th March 1969, in which a prayer was made that the writ of ejectment be issued in accordance with rules 255 and 256 of the Bind Civil Courts Rules and that police aid be provided, on which the Court had granted the prayer but had denied the relief with regard to police aid. A reference to order is also made by the Court in its subse--quent order dated 17th March 1969, which has been called in question by the decree-holder in this revision. This order was made on another application filed by the decree-holder on 14th March 1969, wherein again it was prayed that police aid be provided.
4. The last application dated 14th March 1969, again repeated the request for police aid as was originally provided by earlier orders dated 9th January 1969, and 5th March 1969. The writ of ejectment pursuant to the order dated 9th January 1969, could not be executed as it was returned by the bailiff on account of some order passed in C. M. A. No. 5/69, by the Additional District Judge.
The nature of that order, however, was not disclosed in the endorsement. No reason is apparent from the lower Court record as to why the writ of ejectment issued with police aid pursuant to order dated 5th March 1969 was not executed. According to the learned counsel for the decree-holder, the writ of ejectment could not have been executed in the ordinary manner. He invited my attention to the bailiff's report dated 6th January 1969, and the repeated assertions made in the affidavits filed by the decree---holder along with his application that violence was apprehended at the time of execution of the writ of ejectment. He further stressed that the judgment-debtor, though, had agreed to vacate the premises on 31st December 1968, but had not done so and had been taking steps to get the execution of the writ stayed. The judgment-debtor also filed Suit No. 184/69 for declaration and permanent injunction in regard to the subject-matter of this execution application. In the circumstances the learned counsel vehemently stressed that it could not, therefore, be said that the judgment-debtor would have submitted to this process of the Court willingly. There was no denial of these allegations by the learned counsel for the judgment-debtor.
5. With this background the decree-holder has taken except--petition only to that part of the order dated 17th March 1969, which refers to the refusal of police aid. The revision application was admitted on 4th April 1969, on the ground that the learned Civil Judge, while refusing police aid, had not given any reasons.
6. Mr. Ashfaq, the learned counsel for the decree-holder has advanced three submissions before me. Firstly, that the impugned order refusing to grant police aid is without jurisdiction; secondly, that such refusal amounts to refusal to exercise jurisdiction and, thirdly, that the impugned order is perverse. According to Mr. Ashfaq these conten--tions arise because of the background of the factual position and in that context the refusal of the Court to provide police aid under a misapprehension that it had no power to do. According to him, the civil Court has power to grant police aid even though it is not provided in rule 255 of the Sind Civil Courts Rules by invoking section 151, C. P. C. Which gives inherent powers to Court to pass orders in regard to such a matter which is not specifically provided in the Civil Procedure Code. He, however, candidly admitted before me that there is no reported decision of any Court where police aid was provided pursuant to the inherent power under section 151, C. P. C.
7. Mr. A. K. Niazi, the learned counsel for the judgment---debtor, took the stand that the power to provide police aid is not contained in rule 255 of the Sind Civil Courts Rules and accord--ingly the civil Court was right in not providing this relief. He also did not cite any authority to support the contention that in the absence of this power in the rule itself the Court has no power to grant it. His other contentions were; that the civil Court should have stayed the execution of the writ of ejectment in view of Order XXI, rule 29, C. P. C. As a suit in regard to the subject-matter of the execution application is pending in a civil Court; and that the revision is not maintainable.
8. The first contention of Mr. Ashfaq appears to be miscon--ceived. If the Court had power to grant police aid then it could have refused it if, according to it, there was no necessity for granting it in the particular set of circumstances. If the Court had refused it then it cannot be said that the order is without jurisdiction. The connotation of the words without jurisdiction has obvious reference to a case of absence of jurisdiction. The stand of Mr. Ashfaq is certainly not that the Court had no juris-- diction to grant this relief. On the other hand, his contention is that the Court had jurisdiction to grant such a relief. The grant--ing or withholding of the relief thus cannot be said to be a matter involving the absence of jurisdiction.
9. I propose to deal now with the second contention. Although the learned Civil Judge has not assigned any reason for refusing police aid, yet from the contents of the application dated 14th March 1967, and the submission of the learned counsel for the parties, it is apparent that the consideration before the learned Civil Judge was that there is no power to provide such aid either in the Code or the rule cited above. I have, therefore, dealt with this contention from this angle.
10. There are three provisions in the Civil Procedure Code which deal with the execution of the decree for delivery of possession. The first is rule 35, the second rule 95 and the third is rule 98 of Order XXI, C. P. C. These rules are reproduced as under:- "35.-(1) Where a decree is for the delivery of any immovable property, possession thereof shall be delivered to whom it has been adjudged, or to such person as he may appoint to receive delivery on his behalf, and, if necessary, by removing any person bound by the decree who refuses to vacate the property.
(2) Where a decree is for the joint possession of immovable property, such possession shall be delivered by fixing a copy of the warrant in some conspicuous place on the property and proclaiming by beast of drum, or other customary mode, at some convenient place, the substance of the decree.
(3) Where possession of any building or enclosure is to be delivered and the person in possession, being bound by the decree, does not afford free access, the Court, through its Officers, may, after giving reasonable warning and facility to any woman not appearing in public according to the customs of the country to withdraw, remove or open any lock or bolt or break open any door or do any other act necessary for putting the decree-holder in possession.
95. Where the immovable property sold is in the occupancy of the judgment-debtor or of some person on his behalf or of some person claiming under a title created by the judgment-debtor subsequently to the attachment of such property and a certificate in respect thereof has been granted under rule 94, the Court shall, on the application of the pur--chaser, order delivery to be made by putting such purchaser or any person whom he may appoint to receive delivery on his behalf in possession of the property, and, if need be, by removing any person who refuses to vacate the same.
98. 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 the Civil prison for a term which may extend to thirty days." ---While a Court may be expressly granted the incidental powers necessary to effectuate its jurisdiction, a grant of jurisdiction, in the absence of prohibitive legislation, implies the necessary and usual incidental powers essential to effectuate it, and, subject to existing laws and constitutional provisions, every, regularly constituted Court has power to do all things that are reasonably necessary for the administration of justice within the scope of jurisdiction, and for the enforcement of its judgments and mandates.--- This power has been judicially recognised and stated as an implied power flowing from the jurisdiction itself in the interpretation of Statutes by Maxwell, 10th Edition on page 136 :- "Where an Act confers a jurisdiction, it impliedly also grants the power of doing all such acts, or employing such means, as are essentially necessary to its execution. Cui jurisdictio data est, ea quoque concessa essee videntur, sine quibus jurisdictio ,explicari non potuit. Thus, an Act which empowered justices to require persons to take an oath as special constables, and gave them jurisdiction to inquire into an offence, impliedly empowered them to apprehend the persons who unlawfully failed to attend before them for those purposes. Otherwise the jurisdiction could not be effectually exercised."
Thus it cannot be doubted that the Court has inherent power to take such steps to have its process executed and in this context .Even though there is no specific direction either in rules 35, 95 and 98 of Order XXI, C. P. C. Or rule 255 of the Sind Civil Courts Rules for police aid for getting the writ of ejectment executed, yet the Court can provide for such assistance.
11. The sole object of providing police aid is to prevent the judgment-debtor from taking the law into his own hands and thus to prevent the execution of the decree by violent means. It is for meeting that eventuality that the provision of police aid is made. The provision of police aid thus may become a necessary step as a means for executing the decree and in the circumstances of a particular case it may thus become necessary to provide such assistance.
12. As for the third contention, the perversity of the order is challenged from the angle that even though conditions existed for providing police aid, yet the Court had refused that relief under a misapprehension that it had no power to grant it. This aspect has been dealt with while dealing with the second contention of Mr. Ashfaq. In view of the order, which I propose to deliver now, I would refrain from expressing anything on the merits of the order. It is, therefore, not necessary for me to determine whether the order was perverse, on merits.
13. The refusal to exercise this inherent power would, according to me, amount to a refusal to exercise jurisdiction as this power flows from the Jurisdiction itself. In this context, I would repel the third contention of the counsel for the judgment---debtor that the revision is not maintainable as it is not covered by either clause (a), (b) or (c) of section 115, C. P. C. The learned counsel for the judgment-debtor has cited.-
(1) Jagadamba Devi v. Uma Sankar De and others AIR. 1928 Cal. 220 ;
(2) Majid Husain Khan v. Ainul Azlz Khan and others AIR. 1930 All. 831 ;
(3) Kh. Noor Muhammad v. Namdar PLD 1969 Lah.- 105;
(4) Saifuddin Malik v. The Government of West Pakistan PLD 1969 Lah. 506 ; and
(5) N. S. Vankatagiri Ayyanger vt The Hindu Religious Endowments Board, Madras PLD 1949 P C 26. for the proposition that the revision is not maintain--able.
14. The first case is altogether on different facts and has, no application to the instant case. No law is also enunciated, therein. The second case lays down that if no reasons are given the order does not stiffer from any illegality. This case will also have no application to the instant case as from the angle that it has been argued I have held that `it is a case of refusal to exercise jurisdiction. The third case is an instance where the propriety of interference by the High Court in revision, when it differs with the conclusion of the trial Court, was considered. This also can have no application to the instant case. The fourth case also refers to the propriety of inter--ference by the High Court on conclusion of facts. This will also have no application. In the last case their Lordships of the Privy Council dealt with the question as to whether it was proper for the High Court to interfere with the finding of the subordinate Court on a question of fact or law when the case did not strictly fall within the purview of clause (c) of section 115, C. P. C. This proposition is also not relevant and accordingly this case will also have no application.
15. Lastly, the learned counsel for the judgment-debtor argued that the civil Court should have stayed the proceedings under Order XXI, rule 29, C. P. C. As a suit had been filed in relation to the subject-matter of the execution application. The stay of execu--petition is discretionary under the above rule. The Court had con--sidered the question of stay and did not think it fit in its discre-- petition to allow the stay order to continue and accordingly granted the writ of ejectment by its order dated 5th March 1969. He also cited a decision of the Supreme Court in Saifur Rehman and others v. Haider Shah and another (PLD 1967 SC 344). In that case, the execu--petition case was filed for non-appearance of the decree-holder on the date of hearing. It is true that a suit was pending and the execution case was postponed at the request of the defendants till the disposal of the suit, yet there are no observations of their Lordships in the judgment which can help the judgment-debtor for emphasising that the execution case should be necessarily stayed. The observations of their Lordships in the last paragraphs of this decision in fact militate against any stay of execution proceedings. This judgment, therefore, is of no avail to the above contention.
Moreover, this revision is on a limited question as to whether the Court has inherent power to provide police aid. The question of stay is not relevant in the context of this question. Accordingly the contention of the learned counsel for the judgment-debtor is repelled for the above reasons.
16. In the result, I would set aside that part of the order dated 17th March 1969, which relates to the refusal of police aid. The learned Civil Judge is directed to consider afresh whether, in the circumstances, it is necessary to provide police aid. The revision is accordingly allowed with costs.