1. ' This appeal is directed against the order of Rent Controller and Senior Civil Judge, Mehar, district Dadu whereby application under section 47 read with Order I, rule 10, C.P.C. filed by the appellant was dismissed.
2. ' Brief facts of the case are that a House No, 701 bearing City Survey No, 374 situated at Mehar Town was evacuee property which stood transferred to the respondent on 20-7-1960 vide P.T.D; Khan Chand was statutory tenant in respect of the premises. He died leaving behind a widow deceased Shrimati Kemat Bai, Shrimati Durga Bai and Kaloomal and Motimal. In the year, 1980, the respondents filed Ejectment Application No, 1 of 1980 against two sons namely Kaloomal and Motimal only. In the ejectment case widow and daughter were not arraigned as opponents on the ground of default and personal requirement. The said Kaloomal and Motimal resisted the eviction application and challenged the rate of rent. After recording evidence of the parties, the Rent Controller came to the conclusion that the respondents proved both default and personal requirement. The said Kaloomal and Motimal being aggrieved preferred 1st Rent Appeal being No, 320 of 1980. The appeal was dismissed on 16-8-1983 and they were given two months time to vacate the premises. The said Kaloomal and Motimal preferred petition for Special Leave to Appeal being Civil Petition for Special Leave to Appeal No, K-407 of 1983 against the judgment, dated 16-8- 1983. The petition for Special Leave to Appeal was dismissed on 8-1-1983 and by consent of the parties two months time was allowed to vacate the premises. The said Kaloomal and Motimal did not vacate the premises, as such, Execution Application was filed by the respondents. The appellants an application under section 47 read with Order I rule 10, C.P.C. on 18-3-1984. The respondents filed counter-affidavit and resisted the application. It was averred in the counter- affidavit that appellants, are not legal tenants of part of the premises in their own rights, nor they are necessary parties in execution proceedings. It is advantageous to reproduce para 9 of the counter-affidavit which reads as under:-- "That the rent application was filed against Kaloomal and Motimal in their written statement they had not stated that present applicant their sister and mother were necessary party. This plea was raised before the Hon'ble High Court of Sind at Karachi that their sister/applicant Durga Bai was not made party in rent application, but the Hon'ble High Court was pleased to reject this plea."
3. ' The learned Rent Controller and Senior Civil Judge taking into consideration arguments of the learned counsel for the parties dismissed the application by order dated 15-4-1984.
4. ' The appellants being aggrieved against the aforesaid order have preferred this appeal on the grounds mentioned in the memo. of appeal. The appellant No, 1 died during pendency of this appeal.
5. ' Mr. Partab Rai the learned counsel for the appellant No, 2 has contended that the right to defend is valuable right and the order of ejectment was passed in her absence and she was condemned unheard.
6. ' On the other hand, Mr. Madad Ali Shah, the learned counsel for the respondent has contended that appellant No, 2 is an adult male member of the same family and did not live in the same house as stated by her brother in his deposition recorded in ejectment application. The application under section 47 is not maintainable and incompetent.
7. ' As regards the first contention of the learned counsel for the appellant that Khanchand died leaving behind his widow, two sons, namely, Kaloomal and Motimal and daughter the appellant No,
2. The learned counsel for the respondent has submitted that it is a matter of record that no such plea was raised by Kaloomal and Motimal in their written statement filed in ejectment case. They did not make any attempt to bring the appellant No, 2 as co-opponent. The appellant No, 2 had any right in the tenancy then it was hardly expected from her and from Kaloomal and Motimal that they would have remained silent for such a long period. The learned counsel has also invited my attention to para. 6 of the judgment of F.R.A. No, 320 of 1982 which reads as under:-- "Another argument .urged by Mr. K.B. Bhutto on behalf of the appellants in that the original tenant was Khanchand, father of the appellants and that after death of Khanchand all the heirs of the deceased, including the two appellants should have been joined as parties. It is alleged that Khanchand was survived by a daughter also to has not been joined as opponent. No such plea was raised in the written statement. Hence the appellants are not entitled to raise this plea at this belated stage. If there had been any other survivor of deceased Khanchand this must have been stated specifically by the appellants in the written . statement."
8. ' The learned counsel has also drawn my attention to the deposition of Kaloomal wherein he stated "it is correct our sister is not residing with us".
9. ' Mr. Partab Rai the learned counsel for the appellant has contended that the learned Rent Controller passed order without considering effect of provisions of section 2(j) of Sind Rent Premises Ordinance, 1979 and has also cited a case of Majid Hussain and 5 others v. Muhammad Rafiq and others 1980 CLC 154. The principle laid down in the case is not attracted to the facts of this case. It is admitted by Kaloomal in his deposition that appellant was not occupying the premises in question. As such, it was not necessary to join in the ejectment application.
10. It may be noticed that under the repealed Ordinance of 1959 an order passed by a Rent Controller was to be executed by a civil Court having jurisdiction in the area as if it were a decree of trial Court. Since the ejectment order was deemed to be a decree for the purpose of execution, the executing Court could have entertained objections under section 47 or under Order XXI, C.P.C.
11. Whereas under the New Ordinance subsection (2) of section 19 prohibits a Rent Controller from recalling an ex parte order in case it is found that notice of the application was served on the parties. By virtue of subsection (3) of section 21 the order of Rent Controller subject to the result of appeal, if any, was held to be final.
12. ' It will be appreciated that the order now forming the subject-matter of this appeal by the Rent Controller and which was upheld up to the Hon'ble Supreme Court and it had become final by virtue of subsection (3) of section 21.
13. ' By virtue of section 22 an order passed by the Rent Controller or the appellate authority is to be executed in such manner as may be determined by the Rent Controller.
14. ' In the case of Mst. Khurshed Begum v. Mst. Ghulam Kubra etc. 1982 SCMR 90, the Hon'ble Supreme Court had held as follows:-- "Syed Saqlain Abid is an adult male member of the same family which has come forward at the stage of execution of the ejectment order, as objector. All of them lived in the same house, under one roof. The litigation had been going on for years, Syed Saqlain Abid had 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 male fide should have been rejected forthwith."
15. ' The dictum laid down is applicable to the facts of this case. Even for the sake of argument the appellant No, 2 is residing with her brothers then also she had knowledge of the ejectment proceedings. She could not file application under section 47, C.P.C. Obviously objections could not be raised after the decree was passed. Application under section 47, C.P.C. is not attracted in the present case because it relates to execution, discharge or satisfaction of decree. Its validity could not be allowed to be challenged under the garb of these proceedings. The objection that appellant No, 2 was not arraigned in the ejectment application by the respondents did not fall within the ambit of section 47 and could not be entertained.
16. ' A Division Bench of the High Court of Sind in the case of Haji Ahmad Haji Esa v. Rent Controller etc. 1983 CLC 840 held that section 20 clearly indicates that the legislature did not intend to place the Rent Controller at par with civil Court and, therefore, section 47 or Order XXI, C.P.C. cannot be pressed into service by a stranger to the rent proceedings.
17. ' The dictum laid down in the above case is applicable to the facts of this case.
18. ' These are the reasons of a short order dated 25-10-1984. By consent of the parties the appellant No, 2 is allowed six months time to hand over vacant possession of the premises in question.
19. Further, in case the appellants fail to hand over the possession of the premises in question on the expiry of the above six months, the learned Rent Controller shall issue a writ of possession without any further notice to the appellants.