' This is an appeal under section 21 of the Sind Rented Premises Ordinance, 1979, from the order of 1st Senior Civil Judge and Rent Controller, Hyderabad, dated 31st May, 1982. The facts of the case which have given rise to this appeal are as under :-
2. The respondents are legal heirs of deceased Muhammad Ismail who was owner of the house bearing City Survey No, F/64-687 situated in Khokharpara, Hyderabad. This house was rented out by the deceased landlord to Mst. Bachal Bibi deceased, who is represented now by her son Ghulam Shah.
3. On 12th October, 1967 Muhammad Ismail filed an ejectment application under section 13 of West Pakistan Urban Rent Restriction Ordinance. 1959 against the said Bachal Bibi in the Court of Senior Civil Judge and Rent Controller Hyderabad. By his order, dated 23rd September, 1970 the learned Rent Controller struck off the defence of the said tenant and directed her to vacate the premises and hand over its possession to the said landlord. Against this order Mu. Bachal Bibi filed appeal against the above landlord but it was dismissed on 29th May, 1971. Thereafter, the landlord filed execution application No, 49/1971 on 21st September, 1971 before the Senior Civil Judge, Hyderabad.
4. During the said execution proceedings one A. Hakim Shah filed objections under Rule 99 of Order XXI, C.P.C. Claiming possession of the premises in question in his own right. His objections were rejected by the Court vide its order, dated 14th April, 1972. The said Hakim Shah filed appeal against the order, dated 14th April, 1972 but it was dismissed by the District Judge vide order, dated 25th July, 1974.
5. A. Hakim Shah then filed Civil Suit on 24th August, 1974 in the Court of VII Extra Joint Civil Judge, Hyderabad against the landlord for declaration in respect of the premises in question. An injunction was also issued by the Civil Judge vide order, dated 28th April, 1974 restraining the landlord from executing the ejectment order. Muhammad Ismail the landlord challenged the interim order by appeal before the District Judge, who allowed the appeal and vacated the injunction by his order, dated 30th October, 1976. The suit of A. Hakim Shah was also dismissed by Civil Judge on 15th January, 1977. Meanwhile the Execution Appeal 49/1971 was also dismissed in default by the Civil Judge, on 19th September, 1975.
6. After dismissal of the suit of A. Hakim Shah, the landlord filed fresh execution application being Execution Appeal No, 109/1978 on 7th December, 1978 for execution of the ejectment order against Bachal Bibi. She died during the proceedings and was substituted by her son Ghulam Shah, the present appellant.
7. During pendency of the execution proceedings Ghulam Shah filed a Civil Suit (being Suit No, 80/79) against the landlord before Civil Court, Hyderabad claiming possession of the premises in question in his own right. Alongwith the plaint he had also filed an application for stay of the execution proceedings. The Stay application was dismissed by the Civil Court. Appeal against this order was also dismissed by the District Judge. Ghulam Shah then filed revision being R.A. No, 193/ 1981 before this Court but that was also dismissed, on 20th September, 1981.
8. As a last resort Ghulam Shah appellant filed objection to the Execution Appeal No, 109/1978 before the executing Court under section 47, C.P.C. To the effect the Execution Appeal had become time-barred. These objections were dismissed by the learned Senior Civil Judge Hyderabad by his order, dated 31st May, 1982 which has been impugned in this appeal.
9. Mr. Rahimtullah, learned counsel for the appellant has urged following points in support of his appeal :-
(i) Facts which were not relevant have been taking into consideration in the impugned order.
(ii) Facts have not been correctly stated by the lower Court and do not lead to the inference which is sought to be drawn.
(iii) The difference between the continuance of execution application and revival of dismissed execution application has not been properly appreciated.
(iv) The Execution Application No, 109/1978 having been filed after more than three years of the dismissal of the first execution application (49/71), on 19th September, 1975 was time-barred under section 48 of C.P.C.
(v) That the Senior Civil Judge was not competent to execute the ejectment order under the Ordinance of 1979. According to this Ordinance only the Rent Controller is competent to execute an ejectment order.
10. The learned Senior Civil Judge had disallowed objections of the appellant on the ground that the execution was stayed by the Civil Court from 23rd August, 1974 to 30th October, 1976 in Civil Suit No, 429/74 and 1st Appeal which was dismissed by the District Judge on the last mentioned date.
He, therefore, held that the decree-holder, that is, the landlord was entitled to exclude the above period in computing the period of limitation under section 15 of the Limitation Act. If this period is excluded then the execution Application No, 109/78 shall be well within time from the date of dismissal of the 1st Execution Application No, 49/ 79 which was dismissed, on 19th September, 1975.
Mr. Rahimtulla has argued that the decree-holder is not entitled to the benefit of section 15 of the Limitation Act because Mst. Bachal was not party to the suit filed by A. Hakim Shah nor there was any stay against Mst. Bachal Bibi. He further argued that the decree-holder was not restrained from executing his decree against Bachal Bibi in spite of the stay order passed by the Civil Court in Suit No, 492/74.
11. The argument is misconceived. A. Hakim Shah was claiming to be in possession of the premises in question. The Civil Court had issued injunction in the suit on the hypothesis that A. Hakim Shah and not Bachal Bibi (or for the matter of that, her legal heir Ghulam Shah) was in possession of the premises in question. It was, therefore, not possible for the decree-holder to execute the ejectment order. The stay order was in respect of the premises and not against a particular person. The decree-holder was restrained from executing the ejectment order in respect of the house in dispute. The londlord was prevented by the stay order from taking possession of the house in dispute in pursuance of a valid ejectment order. Under these circumstances the fact that Mst.
Bachal Bibi or her legal heir, appellant Ghulam Shah, was not party to the Suit No, 429/74, was quite immaterial, so far as the applicability of section 15 of the Limitation Act was concerned.
12. The next objection of Mr. Rahimtoola is that the civil Court was not competent to execute the ejectment order according to the Ordinance, 1979. Under this Ordinance only a Rent Controller and not Senior Civil Judge has to execute the ejectment order. According to the W.P. Urban Rent Restriction Ordinance of 1959 an ejectment order was executable by a civil Court as if it was a decree of civil Court. This objection is also misconceived. The execution application was rightly instituted in the Court of Civil Judge in the year 1978, because at the time the new Ordinance had not come into force. It was promulgated, on 21st November, 1979. Since the Ordinance of 1979 did not make any provision for pending execution applications it shall be presumed that execution application pending before civil Court at the time of promulgation of that Ordinance, shall continue to be disposed of according to the existing procedure in view of section 6 of the General Clauses Act, 1897. The impugned order was, therefore, rightly passed by the civil Court, on 31st May, 1982 in the execution application which was filed in the year 1978 under the old Ordinance.
13. The impugned order has been passed by a civil Court as admitted by Mr. J. H. Rahimtoola, learned counsel for the appellant, hence this appeal would not be maintainable under section 21 of the 1979 Ordinance. He should have filed appeal under Order XLIII of C.P.C. In the first instance the appellant did file an appeal under Order XLIII, C.P.C. Before the IInd Additional District Judge, Hyderabad. It was M.C.A. No, 49 of 1982, which was disposed off as withdrawn, on 13th July, 1982 in the following manner :- "The appellant who has been identified by Mr. Ghulam Rasool Advocate is present in person and has made this statement for withdrawal of his appeal which was previously fixed, on 19th July, 1982 but now it has been antedate for today by the consent of both parties. Mr. Naimatullah Soomro Advocate for the respondent is also present and said no objection to such withdrawal I accordingly order the application. The appeal stands dismissed as withdrawn but with no order as to costs.
(Sd.)
2nd Additional District Judge, Hyderabad, Sind. 13th July, 1982."
In the meantime the appellant also filed the present appeal, on 10th July 1982 under section 21 of the 1979 Ordinance. In view of the appellant's statement before the Additional District Judge in C.M.A. No, 49 of 1982, the present appeal must be dismissed or not maintainable.
14. Accordingly the appeal is dismissed with costs.
' Before parting with this matter it may be observed that this is a classic instance of a case in which a Judgment-debtor has successfully avoided execution of a valid order for more than a decade and has deprived the decree-holder of the fruits of his decree which he had obtained after a protracted litigation starting from 1967. The executing Court is now directed to execute the ejectment order with utmost expedition.